Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1341 (ORI)

Ganesh Chandra Jew v. Kalia Singh

2017-11-22

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against an affirming judgment. The suit was for declaration of title and eviction of the defendant no.1 from the piece of land. 2. Case of the plaintiff was that Bahadur Singh was the Topa Paika Jagirdar. He enjoyed the Jagiri lands mentioned in Schedule-A of the plaint. After his death, his eldest son Meghu Singh-defendant no.2, became Topa Paika. He was in possession of the land. Jagiri system was abolished. Schedule-A land was settled by the State in favour of defendant no.2. Defendant no.2 sold the same to Lalmohan Singh-defendant no.3 by means of a registered sale deed. While the matter stood thus, defendant no.3 sold the suit land to the plaintiff in the year 1974 and delivered possession to him. It was pleaded that defendant no.1 trespassed over Schedule-B land, which is a part of Schedule-A land and constructed a house thereon. He has no semblance of right, title and interest over the same. 3. Defendant no.1 filed a written statement denying the assertions made in the plaint. It was pleaded that defendant no.1 was the absolute owner in possession of the suit land. The entire schedule-A land was Topa Paika Jagiri land of Sukulal Singh, grand-father of defendant nos.1 and 2. Sukulal died leaving behind four sons, namely, Bahadur, father of defendant no.2, Tribhuban, Shyama father of defendant no.1 and Rama. After death of Sukulal, the land was recorded in the name of the eldest son Bahadur. Thereafter, the land was recorded in the name of his son Meghu-defendant no.2. The suit land is the joint family property of the parties. His father had constructed a residential house and was residing therein whereafter he is residing in the same. The same has been reflected in the settlement R.O.R. published in the year 1929. The suit land was not partitioned. After abolition of Jagiridari, all co-sharers were entitled to get their respective shares. His alternative prayer is that he is in possession of the suit land peacefully, continuously and with hostile animus to the plaintiff and defendant nos. 2 & 3 and as such, perfected title by way of adverse possession. 4. Defendants 2 and 3 supported the case of the plaintiff. It was pleaded that the suit land was Topa Paika Jagri land. Father of defendant no.2 was the Jagirdar. The land was settled in his favour. 2 & 3 and as such, perfected title by way of adverse possession. 4. Defendants 2 and 3 supported the case of the plaintiff. It was pleaded that the suit land was Topa Paika Jagri land. Father of defendant no.2 was the Jagirdar. The land was settled in his favour. He was the absolute owner of the land. After his death, defendant no.1 inherited the property. The nature of the land was changed and converted to Hasilata in Assessment Case No.14 of 1963-64 in the name of defendant no.2. He sold the suit land from other land to defendant no.3 by means of a registered sale deed for a valid consideration and thereafter delivered possession. He sold the land by means of a registered sale deed. 5. On the inter se pleadings of the parties, learned trial court struck ten issues. Parties led evidence, oral and documentary. Leaned trial court held that the Jagir system in the district of Mayurbhanj was abolished sometime in the year 1958 to 1959. After abolition of Jagir system, Meghu Singh got Schedule-A lands together with other Topa Paika Jagir lands. Sukhlal was the common ancestor of the parties. He had four sons. Defendant no.1 was the son of Soma Singh. Placing reliance on the judgment in the case of Rajkumar Palia v. Sadhuram Palia and others (1980) 2 ILR Cuttack 202 it held that defendant no.1 and co-sharer had interest over Schedule-A land after Jagir system was abolished. Meghu Singh had limited interest in Schedule-A land. Therefore, the sale of Schedule-A land by Meghu Singh beyond his share is void. Held so, it dismissed the suit. Unsuccessful plaintiff challenged the judgment and decree before the learned District Judge, Baripada in Title Appeal No.1 of 1989, which was eventually dismissed. 6. The second appeal was admitted on the following substantial question of law : “Whether the settlement of the suit lands in favour of defendant no.2 Meghu Singh after abolition of Topa Paika system was not his exclusive property?” 7. Mr. Ramakanta Mohanty, learned Senior Advocate for the appellant and Mr. Hemanta Kumar Behera, learned counsel on behalf of Mr. S.D. Das, learned Senior Advocate for the respondents 1 to 4. 8. Mr. Mohanty, learned Senior Advocate for the appellant submitted that the suit land originally belonged to Meghu Singh-defendant no.2. He was the absolute owner of the suit schedule land. Ramakanta Mohanty, learned Senior Advocate for the appellant and Mr. Hemanta Kumar Behera, learned counsel on behalf of Mr. S.D. Das, learned Senior Advocate for the respondents 1 to 4. 8. Mr. Mohanty, learned Senior Advocate for the appellant submitted that the suit land originally belonged to Meghu Singh-defendant no.2. He was the absolute owner of the suit schedule land. He sold the same to defendant no.3 by means of a registered sale deed. Thereafter, defendant no.3 sold the same to the plaintiff on 20.7.1974 by means of a registered sale deed after obtaining permission from the S.D.O., Baripada and delivered possession of the land to the plaintiff. Defendant no.1 has no semblance of right, title, interest or possession over the suit land. The settlement of land in favour of one of the co-sharer will not enure the benefit to others. The courts below committed a patent error in applying the law laid down in Rajkumar Palia (supra). The decision in the case Rajkumar Palia is distinguishable on facts. The alternative submission of Mr. Mohanty, learned Senior Advocate is that in the event it is held that the settlement of land in favour of defendant no.2 enure the benefit to other co-sharers then the latter has right to alienate his share of land for legal necessity. Consequently the sale deed executed by defendant no.2 in favour of the plaintiff is valid to the extent of defendant no.2. 9. Per contra Mr. Behera, learned counsel for the respondents submitted that the nature of the land was Topa Paika Jagirdar. Bahadur Singh was the common ancestor of the parties. He was enjoying the suit land. Thus all co-sharers have interest over the same. 10. The suit schedule land was the Topa Paika Jagiri land of Sukulal Singh, grand-father of defendant nos.1 and 2. Sukulal had four sons, namely, Bahadur, father of defendant no.2, Tribhuban, Shyama father of defendant no.1 and Rama. After death of Sukulal, the land was recorded in the name of his eldest son Bahadur. After death of Bahadur, the land was recorded in the name of his son Meghu-defendant no.2. While the matter stood thus, Jagiri system was abolished. The land was settled in favour of defendant no.2. 11. The question does arise whether the settlement of land in favour of defendant no.2 will enure the benefit to other co-sharers? 12. After death of Bahadur, the land was recorded in the name of his son Meghu-defendant no.2. While the matter stood thus, Jagiri system was abolished. The land was settled in favour of defendant no.2. 11. The question does arise whether the settlement of land in favour of defendant no.2 will enure the benefit to other co-sharers? 12. A Division Bench of this Court in Rajkumar Palia v. Sadhuram Palia & others, (1980) 2 ILR Cuttack 202 interpreting the Sections of the Sonepur Bhumibidhi held that after the abolition of Gounti right by notification dated 2.2.1956 and after the lands were surrendered and thereafter settled with one of the co-sharers, the other co-sharers can claim partition of the suit lands. It was further held that once Gountia system is abolished and the Bhogra land is settled on raiyati basis on defendant no.1, the properties became partible. The Bhogra lands should become joint family property and the right of other members of the joint family which remained dormant so long as the Bhogra tenure subsisted would spring into life as soon as the tenure is abolished. Unsuccessful party approached the apex Court in Civil Appeal No.1900 of 1981. The appeal was dismissed, thereby the judgment of this Court was confirmed. 13. Hemchandra Dansana v. Dolamani Dansana and others, AIR 1965 Orissa 188 was a case under the Orissa Estate Abolition Act. A Division Bench of this Court held that even though one of the co-sharers is found to be in khas possession of the agricultural land on the date of vesting, such possession shall be deemed to be the possession of the entire body of co-sharers and the land in possession of one of the co-sharers shall be deemed to be settled only with him, but with all the shareholders owning the estate. 14. No direct authority has been cited before this Court that the settlement of Topa Paika Jagiri land made in favour of one of the Jagirdar will not enure the benefit to other Jagirdars. 15. The principles enunciated by this Court in Rajkumar Palia and Hemchandra Dansana (supra) shall apply in respect of Topa Paika Jagiri land. 16. Admittedly the land was the Topa Paika Jagiri land of the ancestors of the defendants. The settlement made in favour of defendant no.2 will enure to the benefits of all other co-sharers. 15. The principles enunciated by this Court in Rajkumar Palia and Hemchandra Dansana (supra) shall apply in respect of Topa Paika Jagiri land. 16. Admittedly the land was the Topa Paika Jagiri land of the ancestors of the defendants. The settlement made in favour of defendant no.2 will enure to the benefits of all other co-sharers. Defendant no.2 was not the exclusive owner of the suit land. Mr. Mohanty is right in his submission that a co-sharer can transfer his undivided share over the property. But then, alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid as held by the apex Court in the case of Gorakh Nath Dube v. Hari Narain Singh and others, AIR 1973 SC 2451 . There is no material on record with regard to the total extent of land the family possesses. Defendant no.2 had alienated Ac.3.10 dec. of land to the plaintiff. It cannot be said with certainty that defendant no.2 had alienated his share or in excess of his share or the entire property. 17. In the result, the appeal fails and is dismissed. There shall be no order as to costs.