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2017 DIGILAW 1331 (ORI)

Chintamani Rout v. Sarat Chandra Dash

2017-11-20

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Defendant nos.1 to 3 are appellants against a reversing judgment. 2. Plaintiff-respondent no.1 instituted the suit for declaration of title, confirmation of possession and permanent injunction. The case of the plaintiff was that the suit land was recorded in the name of Prananath Mohapatra, ex-intermediary, in the sabik settlement. He along with his son, defendant no.4, was in possession of the suit land. He brought Maheswar Dash, father of the plaintiff, to the village in year 1949 to work as a priest. In lieu of his service, the ex-intermediary allotted the suit land for maintenance. The ex-intermediary had executed a permanent lease deed in favour of his father on 1.4.1955. The suit land had been wrongly recorded in the name of Government of Orissa in the hal ROR. The plaintiff was in possession of the land for more than 30 years peacefully, continuously and with the hostile animus to the defendants and as such perfected title by way of adverse possession. Defendant nos.1 and 2 fraudulently obtained lease of the land from the Government. The Tahasildar, Anandapur, defendant no.6, initiated encroachment case against him in the year 1986, but then no order was passed. 3. Defendant nos.1 and 2 filed written statement stating therein that after vesting of the land, the State became the paramount owner. A registered sale deed was executed in his favour on 1.2.89. Land was duly delivered to him. 4. Defendant no.3 filed written statement. It was pleaded that the land vested in the State after coming into force of the Orissa Estate Abolition Act (in short, “O.E.A. Act”). He was in possession of Ac.0.16 dec. of land appertaining to plot no.490 and Ac.0.04 dec. out of plot no.489 since the time of the father for more than 40 years to the knowledge of plaintiff and other defendants. He was a landless person. The defendant no.6 granted patta in his favour. One encroachment case was initiated against him in respect of Ac.0.16 dec. The same is sub-judice. 5. Defendant nos.5 and 6 filed written statement stating, inter alia, that after abolition of estate, the suit land vested in the State free from all encumbrances. Plaintiff was not in possession of the suit land at any point of time. The plaintiff had not paid rent to the State. The same is sub-judice. 5. Defendant nos.5 and 6 filed written statement stating, inter alia, that after abolition of estate, the suit land vested in the State free from all encumbrances. Plaintiff was not in possession of the suit land at any point of time. The plaintiff had not paid rent to the State. The land was recorded in the name of the Government of Orissa under Rakhit Khata. The kissam of land is Urnata Jojana Jogya. 6. On the interse pleadings of the parties, learned trial court struck seven issues. Parties led evidence. Learned trial court came to hold that plaintiff was not in possession of the land peacefully, continuously and with the hostile animus to the defendants for more than 30 years. Held so, it dismissed the suit. The unsuccessful plaintiff challenged the judgment and decree of the learned trial court in T.A. No.7 of 1997 before the learned Civil Judge (Sr. Divn.), Anandapur. Learned appellate court came to hold that plaintiff was in possession over the suit land on the date of vesting as a tenant under the intermediary and therefore, he shall be a deemed tenant. The lease deed executed in favour of defendant no.1 is invalid. Curiously it held that the claim of adverse possession by the plaintiff stands well established. Even though his claim of title is based on adverse possession and not exclusively on long tenancy before and after the vesting, he is entitled to the relief of declaration of his right, title and interest and possession applying the alternative relief. Held so, it allowed the appeal. 7. The second appeal was admitted on the following substantial questions of law : “1. Whether the exhibits 1 and 2 can be construed as documents of tenancy of the plaintiff’s father without being corroborated by the ex-landlord’s return which document was not proved in the suit or in the lower appellate court by the plaintiff to presume pre-vesting tenancy of the plaintiff’s father to deem the plaintiff as a tenant under the State u/s.8(1) of the O.E.A. Act without adducing any additional evidence to the effect ? 2. 2. Whether when the plea of pre-vesting tenancy of the plaintiff’s father and the plea of adverse possession are mutually destructive, the lower appellate court if can be said in that event to be justified in law to determine the pre-vesting tenancy of the plaintiff’s father at that belated stage holding him as the tenant under the Ex-landlord and on that basis deeming the plaintiff to be the tenant under the State by applying the provision of Section 8(1) of the O.E.A. Act ?” 8. Heard Mr. B.K. Mohanty along with Mr. J. Sahoo, learned counsel for the appellants, Mr. B.H. Mohanty, learned Senior Advocate along with Mrs. M. Pal, learned counsel for the respondent no.1 and Mr. R.P. Mohapatra, learned A.G.A. along with Mr. S. Mishra, learned A.S.C. for the respondent nos.3 and 4. 9. Mr. B.K. Mohanty, learned counsel for the appellants submitted that the suit land originally belonged to the ex-intermediary. The estate vested in the State free from all encumbrances. The State became the paramount owner. Thereafter the lease deed was executed in favour of the defendants. He further contended that the defendants took the plea of adverse possession. Learned trial court dismissed the suit holding that the plaintiff has not perfected title by way of adverse possession. But then, learned lower appellate court on untenable and unsupportable ground set aside the judgment of learned trial court. 10. Per contra, Mr. B.H. Mohanty, learned Sr. Advocate for the respondent no.1 confined his argument with regard to Sec.8 of the O.E.A. Act. He contended that though in the pleading the plaintiff had stated that he had perfected title by way of adverse possession and made prayer accordingly, but the plaintiff had also taken the plea that he is a deemed tenant. Learned Senior Advocate submitted that the ex-landlord brought the father of the plaintiff to the village and settled him as a priest in the village. This was necessitated as in the village in question and adjoining village, there was no qualified brahmin. The intermediary parted with some land for the brahmin. The suit land is an item of such property given to the father of the plaintiff to maintain family. The intermediary executed plain paper document, acknowledged the possession of the plaintiff’s family which means ‘Desahata Jagir’. The intermediary parted with some land for the brahmin. The suit land is an item of such property given to the father of the plaintiff to maintain family. The intermediary executed plain paper document, acknowledged the possession of the plaintiff’s family which means ‘Desahata Jagir’. From the nature of the grant, service and possession of the plaintiff’s ancestor, it emerges that the grant given to the plaintiff’s ancestor was a grant burdened with service to the village. In case of a grant in lieu of service, the grant is attached to the service. In the event the service is not rendered, the grantee loses his right to enjoy the land. But in a case of grant burdened with service, if service is discontinued, the grantee does not lose his land. The instant case is a grant burdened with service. In the absence of service, the grantee was required to pay rent for the land. The plaintiff was in possession of the land. The plaintiff’s ancestors were settled in the village by the ex-intermediary as stitiban tenant. This right cannot be taken away by abolition of estate. He further contended that the contention of the respondents that the plaintiff had not filed any application for settlement of land is misconceived. No plea was taken in the court below. The provision of Sec.8(2) of the O.E.A. Act does not apply to the case. Sec.8(3) of the O.E.A. Act applies to private Jagir under the intermediary. Sec.8(2) and Sec.8(3) of O.E.A. Act does not envisage filing of any application. The plaintiff is a deemed tenant. Sec.8(1) of the O.E.A. Act does not contemplate any application. 11. Mr. Mohapatra, learned A.G.A. for respondent nos.3 and 4 strenuously contended that the assertion of the plaintiff that he is in possession of the land for more than 30 years peacefully, continuously and with the hostile animus to the defendants and as such perfected title by way of adverse possession. Learned trial court dismissed the suit. In the lower appellate court, the plaintiff took the plea that he is a deemed tenant under Sec.8(1) of the O.E.A. Act. The said plea was not taken in the learned trial court. No issue with regard to Sec.8(1) of the O.E.A. Act was framed. The learned appellate court proceeded in a wrong premises and held that the plaintiff is a deemed tenant. The said plea was not taken in the learned trial court. No issue with regard to Sec.8(1) of the O.E.A. Act was framed. The learned appellate court proceeded in a wrong premises and held that the plaintiff is a deemed tenant. He further contended that the so-called unregistered sale deed dated 1.4.1955 requires registration. The ex-intermediary had not submitted any rent roll in favour of any person after vesting. He further contended that an encroachment case was initiated against the plaintiff in the year 1986, since he was in unauthorised possession of the suit land. Penalty was imposed. Order of eviction was passed. The said order attained its finality. Thereafter the land was settled in favour of the appellants. 12. Admittedly, the land originally belonged to ex-intermediary. The same vested in the State free from all encumbrances after coming into force of O.E.A. Act. The plaintiff asserted that the ex-intermediary appointed his father as a priest in the village and settled the land in question. He executed a permanent lease deed on 1.4.1955. It was further pleaded that he is in possession of the land peacefully, continuously and with the hostile animus to the defendants for more than 30 years and perfected title by way of adverse possession. Plaintiff instituted the suit for declaration of title on the basis of adverse possession. The plaintiff is not sure of his right. ‘Adverse possession’ and ‘deemed tenancy’ are two different and distinct concepts. No issue was framed with regard to deemed tenancy. 13. On a threadbare analysis of evidence on record and pleadings, learned trial court held that plaintiff had not perfected title by way of adverse possession. Learned lower appellate court proceeded otherwise and held that plaintiff is a deemed tenant. 14. Since the plaintiff has taken contradictory plea, it is desirable to deal with the same. In Ram Nath Mandal and others vs. Jojan Mandal and others, AIR 1964 Patna 1, the Full Bench of Patna held that under Section 117 of the T.P. Act, a lease for agricultural purposes is not necessary to be made by a written instrument and it may be effected by an oral agreement in which case the question of registration will not arise. However, if the transaction is reduced to writing, then in the case of lease from year to year or for any term exceeding a year or reserving a yearly rent, registration would be required under Section 17 of the Registration Act, and if unregistered the lease will be inadmissible in evidence under Section 49 of the Registration Act and other evidence of its terms will be precluded under Section 91 of the Evidence Act. In that case, the claim of creating of tenancy on the basis of rent receipts in pursuance of an oral agreement was negatived on the ground that no such case had been put forward by the plaintiff in the plaint. In view of the same, the unregistered lease deed was required to be registered. 15. Sec.8(2) of the O.E.A. Act provides that any person who immediately before the date of coming into force of the Odisha Estate Abolition (Amendment) Act 13 of 1986 held land under Government for rendering service as a village servant by whatever name called shall from the date of coming into force of the said Act be discharged from the conditions of such service and the land shall be settled with him with occupancy right in such rent as may be determined by the Collector in the prescribed manner. Sec.8(3) of the O.E.A. Act provides that any person who immediately before the date of vesting held land under an intermediary on favourable terms for personal service rendered by him to such intermediary shall, from the date of vesting be discharged from the conditions of such service and the land may be settled with him in such manner and under such terms and conditions as may be prescribed. It further provides that nothing in Sub-section (3) shall apply to a trust estate which is vested in the State on or after the date of coming into force of the Odisha Estates Abolition (Amendment) Act, 1970. 16. Sec.8(2) comes into play if the land was held under the Government for rendering service as a village servant whereas Sec.8(3) comes into play where a person immediately before the date of vesting held that land under an intermediary on favourable terms of personal service rendered by him to such intermediary. 17. 16. Sec.8(2) comes into play if the land was held under the Government for rendering service as a village servant whereas Sec.8(3) comes into play where a person immediately before the date of vesting held that land under an intermediary on favourable terms of personal service rendered by him to such intermediary. 17. This Court in the case of Anarasi Bighnesam vs. Member, Board of Revenue and others, 73 (1992) CLT 22 held : “xxx xxx xxx The requirements of the section are that a person who claims thereunder must have held the land immediately before the vesting under an intermediary on favourable terms for personal service rendered by him to the intermediary. If such condition is satisfied, he shall by operation of the statute be discharged of the conditions of such service and the land may be settled with him in accordance with the terms and conditions and in the manner as may be prescribed. Section 8-A(2) of the Act requires that any person who is discharged from the conditions of personal service in accordance with the terms of section 8(3) is to file his claim in the prescribed manner within six months from the date of vesting. Under sub-section (3) of section 8-A, on failure of filing the claim within the period specified, the provisions of section 5(h) would apply as if the right to possession had vested in the State Government and the right of any person to make the claim under section 8(3) shall stand extinguished. xxx xxx xxx” 18. Rightly Mr. Mohanty, learned Senior Advocate submitted that Sec.8(2) of the O.E.A. Act shall not come into play in the instant case. But then the plaintiff’s case is covered under Sec.8(3) of the O.E.A. Act. Sub-rule (2) of Rule 6 of the Orissa Estate Abolition Rules, 1952 postulates that any person, who is discharged from the condition of personal service under Sub-section (3) of Section 8, shall file his claim before the Collector for settlement of the lands in the form of an application in Form I of the schedule. The plaintiff had not filed any application. No settlement was made in his favour. Admittedly the land originally belonged to ex-intermediary. After coming into force of the O.E.A. Act, the land vested in the State free from all encumbrances. The ex-intermediary had not submitted the rent roll in favour of any person. The plaintiff had not filed any application. No settlement was made in his favour. Admittedly the land originally belonged to ex-intermediary. After coming into force of the O.E.A. Act, the land vested in the State free from all encumbrances. The ex-intermediary had not submitted the rent roll in favour of any person. State became the paramount owner of the land. The hal ROR was published in the name of the State. Sale deed was executed by the defendant nos.5 and 6 in favour of the defendant nos.1 and 2. Further encroachment case was initiated against the plaintiff for illegal encroachment of the land. Penalty was imposed. The substantial questions are answered accordingly. 19. In the wake of aforesaid, the impugned judgment is set aside. The appeal is allowed. Consequently the suit is dismissed. No costs.