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2017 DIGILAW 1257 (ORI)

Panchanana Behera v. State of Orissa

2017-11-06

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. 1. This is a plaintiff’s appeal against reversing judgment. The suit was for declaration of title and correction of ROR. 2. The dispute pertains to an area of Ac.0.62 dec. and 5 kadis out of Ac.47.63 dec. appertaining to Hal Khata No.1167, Plot No.3652/4108 of Mouza-Jamudiha in the district of Balasore. The kissam of the land is jungle. 3. The case of the plaintiff is that the suit land originally belonged to Shri Shri Jagannath Jew bije Nijagad Nilgiri. Rani Indira Devi was the marfatdar of the deity. She leased out the suit land to the plaintiff in the year 1964 for a period of five years. The status of the land is jungle. He reclaimed the suit land and raised paddy crops. He used to pay rent to the marfatdar. The estate vested in the State in 1967. Thereafter, he paid rent to the State. It was further pleaded that on the date of vesting, he was in possession of the land as a leasee and acquired raiyati right. He is a settled raiyat of the village and as such, became the occupancy raiyat. The settlement authority wrongly recorded the land under Rakhit khata. 4. Defendants filed a written statement denying the assertions made in the plaint. The case of the defendants is that the suit land originally belonged to Shri Shri Jagannath Jew bije Nijagad Nilgiri. Nilgiri estate vested in the State on 1.2.1967. The alleged patta was granted by ex-intermediary on 14.1.1964 in respect of the land, which was recorded in Rakhit khata. The suit land had been recorded as a forest land in Sabik as well as Hal ROR. The alleged lease deed was obtained by the plaintiff fraudulently with a motive to defeat the provisions of the Orissa Estate Abolition Act (“OEA Act”). The ex-intermediary leased out the forest land without prior permission of the Collector, Balasore, defendant no.1. The lease was hit under Sec. 3(1) of the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948 (“1948 Act”). Further, the deity is a public deity managed by the trust board. The so-called lease was in contravention of Orissa Hindu Religious Endowments Act, 1939 (“OHRE Act”). 5. On the inter se pleadings of the parties, learned trial court struck four issues. Parties led evidence. Further, the deity is a public deity managed by the trust board. The so-called lease was in contravention of Orissa Hindu Religious Endowments Act, 1939 (“OHRE Act”). 5. On the inter se pleadings of the parties, learned trial court struck four issues. Parties led evidence. Learned trial court held that the plaintiff has acquired the status as a tenant. He is a deemed tenant. Held so, it decreed the suit. Assailing the judgment and decree, the defendants filed appeal before the learned District Judge, Balasore, which was transferred to the court of the learned Addl. District Judge, Balasore and renumbered as M.A No.4/59 of 1996-83. The learned lower appellate court instead of deciding the appeal on merit directed the Government to consider the case of the plaintiff to lease out the land in his favour. Felt aggrieved, he approached this Court in Second Appeal No.130 of 1985. The judgment and decree of the learned lower appellate court was set aside. The matter was remitted to the learned lower appellate court to decide the status of the plaintiff and his right to be settled under Sec. 8 of the OEA Act. Learned appellate court held that the suit land originally belongs to Lord Jagannath of Nilgiri. The deity is a perpetual minor. Thus it is necessary to protect the interest of the deity. Neither the plaintiff nor the Government have any right over the suit land. Held so, it dismissed the appeal. 6. The second appeal was admitted on 19.9.1997 on the following substantial question of law: “Whether there can be conferment of occupancy right under the provisions of the Orissa Tenancy Act and Orissa Land Reforms Act in the facts and circumstances of the case ?” In course of hearing, the following substantial question of law was formulated; “Whether the plaintiff is a deemed tenant under Sec. 8(1) of the Orissa Estate Abolition Act ?” 7. Heard Mr. Ramakanta Mohanty, learned Senior Advocate along with Mr. Tapas Kumar Mohanty, learned counsel for the appellant and Mr. R.P. Mohapatra, learned Addl. Government Advocate for the respondents. 8. Mr. Mohanty, learned Senior Advocate for the appellant, submitted that the land originally belonged to Shri Shri Jagannath Jew bije Nijagad Nilgiri. Rani Indira Devi was the marfatdar of the deity. She leased out the land to the plaintiff in the year 1964 for a period of five years. R.P. Mohapatra, learned Addl. Government Advocate for the respondents. 8. Mr. Mohanty, learned Senior Advocate for the appellant, submitted that the land originally belonged to Shri Shri Jagannath Jew bije Nijagad Nilgiri. Rani Indira Devi was the marfatdar of the deity. She leased out the land to the plaintiff in the year 1964 for a period of five years. The plaintiff used to pay rent to the ex-intermediary. He reclaimed the suit land and raised paddy crops. After vesting of the land, he used to pay rent to the State. Thus the plaintiff is a deemed tenant under Sec. 8(1) of the OEA Act. 9. Per contra, Mr. Mohapatra, learned AGA submitted that the alleged lease was in contravention of the OEA Act. The land vested in the State in 1967. The kissam of the land is jungle. No permission was granted by the competent authority either under the OEA Act or 1948 Act to lease out the forest land. 10. The plaintiff instituted the suit in respect of Ac.0.62 dec. and 5 kadis out of Ac.47.63 dec. The boundary of the suit land has not been shown. 11. Order 7 Rule 3 CPC postulates that where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. The suit land is not identifiable. No effective decree can be passed. 12. It is the admitted case of the parties that the kissam of the land is jungle. Sec. 3 of the 1948 Act deals with prohibition of alienation of communal forest and private lands. Sec. 4 provides transaction of the nature specified in Sec. 3 to be void. The same are quoted hereunder; “3. No effective decree can be passed. 12. It is the admitted case of the parties that the kissam of the land is jungle. Sec. 3 of the 1948 Act deals with prohibition of alienation of communal forest and private lands. Sec. 4 provides transaction of the nature specified in Sec. 3 to be void. The same are quoted hereunder; “3. Prohibition of Alienation of Communal Forest and Private Lands – (1) Notwithstanding anything contained in any other law for the time being in force or any express or implied agreement but subject to the provisions of Subsection (2), no landlord shall, without the previous sanction of the Collector sell, mortgage, lease or otherwise assign or alienate or convert into raiyati land any communal forest or private land or create occupancy rights therein: Provided that nothing in this sub-section shall be deemed to prohibit a landlord from leasing out his private land for a period not exceeding two years without previous sanction of the Collector. xxx xxx xxx 4. Transaction of the Nature Specified in Section 3 to be void – (1) Any transaction of the nature prohibited by Section 3 which took place on or after the 1st day of April, 1946, shall be void and inoperative and shall not confer to take away or be deemed to have conferred to taken away any right whatever on or from any party to the transaction.” 13. Sub-Sec. (1) of Sec. 3 of the Act, 1948 contains a non-obstante clause. It provides that nothing in the said sub-sec. shall be deemed to prohibit a landlord from leasing out his private land for a period not exceeding two years without previous sanction of the Collector. Any transaction of the nature prohibited by Sec. 3 which took place on or after the 1st day of April, 1946 shall be void and inoperative. The lease deed was executed on 14.1.1964. No permission was accorded by the Collector under Sec. 3 of the 1948 Act to lease out the forest land. Thus the lease deed is void. 14. Further, Sec. 5 of the OEA Act contains a non-obstante clause. It provides that notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification in the Gazette under Sub-sec. (1) of Sec. 3 or Sub-sec. Thus the lease deed is void. 14. Further, Sec. 5 of the OEA Act contains a non-obstante clause. It provides that notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification in the Gazette under Sub-sec. (1) of Sec. 3 or Sub-sec. (1) of Sec. 3-A or from the date of the execution of the agreement under Sec. 4, as the case may be the consequences enumerated therein shall ensue. Clause (a) of Section 5 provides that the forests vests absolutely in the State Government free from all encumbrances and the intermediary cease to have any interest in such estate. Thus on the publication of the notification in the Gazette under sub-sec. (1) of Sec. 3, the forests vested absolutely in the State Government free from all encumbrances and the intermediary ceased to have any interest in such estate. A person, who is in illegal possession of a forest land on the date of vesting of the estate, by no stretch of imagination, be a deemed tenant under Sec. 8(1) of the OEA Act. The substantial questions of law are answered accordingly. 15. A priori, the appeal fails and is dismissed. There shall be no order as to costs.