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2017 DIGILAW 1350 (ORI)

Ladu Mohapatra v. Ananda Misra

2017-11-24

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This appeal is by the plaintiff. The suit was for recovery of possession and permanent injunction. 2. Case of the plaintiff was that the suit land was recorded in the name of Biswanath Mishra and 32 others in 1932 settlement. Each co-sharer had 1/33 share in the said land. The land was in possession of all the co-sharers. Status of the suit land was Brahmottar Tanki. After introduction of the Orissa Estates Abolition Act (‘OEA Act’), the land vested in the State free from all encumbrances in the year 1963. While the matter stood thus, all the co-sharers authorised the defendant no.1 to approach the O.E.A., Collector, Nayagarh for settlement of land under Sec. 7 of the OEA Act. Defendant no.1 filed an application for settlement of the land in his own name without impleading the other co-sharers. The same was registered as Vesting Case No.4769 of 1964. Notice was not served on them. They were not aware of the said case. On 3.4.1965, the O.E.A Collector settled the land in favour of defendant no.1. While the matter stood thus, defendant no.1 sold Ac.0.29 dec. out of Ac.8.82 dec. to Harihar Mohapatra on 24.10.1970 by means of a registered sale deed for a consideration of Rs.200/-. Defendant no.1 had also sold Schedule-B land to defendant no.2, Schedule-C land to Ghanashyam Mohapatra on 2.3.1974, and Schedule-D land to Udayanath Misra on 31.5.1976. The sale deeds are void, since on the date of sale defendant no.1 had no subsisting interest in the suit land. The purchasers forcefully entered into the suit land. With this factual scenario, he filed the suit seeking the relief’s mentioned supra. 3. Defendants 1 to 3 filed a written statement denying the assertions made in the plaint. It was pleaded that the defendant no.1 made an application under Sec.7 of the OEA Act. Notice was duly published in the village by beat of drum. All the villagers were aware of the same. No objection was filed. The land was settled in his name. Neither the plaintiff nor any other co-sharers preferred appeal. The settlement of land in favour of defendant no.1 on 3.4.1965 attained finality. The suit is barred under Sec. 39 of the OEA Act. Defendant no.1 was the owner of the suit land. He sold Ac.0.29 dec. to Harihar Mohapatra on 22.10.1970. The land was settled in his name. Neither the plaintiff nor any other co-sharers preferred appeal. The settlement of land in favour of defendant no.1 on 3.4.1965 attained finality. The suit is barred under Sec. 39 of the OEA Act. Defendant no.1 was the owner of the suit land. He sold Ac.0.29 dec. to Harihar Mohapatra on 22.10.1970. Defendant no.1 and Harihar Mohapatra had sold Schedule-B land to Laxman Mishra for a valid consideration of Rs.3500/-. Schedule-C land was sold to Ghanashyam Mohapatra for a valid consideration. Schedule-D was sold to Udayanath Misra for a valid consideration. As the entire villagers raised voice against him, he agreed to give 1/33 share to each branch. It was decided that the land would be put to auction in the village and the highest bidder would take the same. The consideration amount would be equally divided among 33 share holders. The auction was held in the year 1973. Schedule-B land was put to auction. As the defendant nos.2 to 4 were highest bidders, the villagers agreed to accept the bid amount. Therefore, the entire money of Rs.4435/-was kept with the plaintiff. It was decided that after registration, the registration ticket would be kept with the plaintiff, who after giving delivery of possession of the respective shares would distribute the amount. Registrations were made by defendant no.1 in favour of defendants 2 to 4. After purchase, defendant nos.2 and 3 made considerable improvement by spending huge amount. 4. Defendant no.4 filed a separate written statement contending, inter alia, that the sale in his favour is not void since defendant no.1 had sold his interest subsisting over the suit land. He is in possession of the same. 5. On the inter se pleadings of the parties, learned trial court struck ten issues. Parties led evidence, oral and documentary. Learned trial court held that the suit property was a joint property. It was recorded in the name of 33 families. The settlement made in favour of defendant no.1 under Sec. 7 of the OEA Act will enure the benefit to all the co-sharers. The defendant no.1 cannot claim exclusive title and possession over the same. Sec. 39 of the OEA Act is not a bar for institution of the suit. The plaintiff has a right, title and interest over the same. The defendant no.1 cannot claim exclusive title and possession over the same. Sec. 39 of the OEA Act is not a bar for institution of the suit. The plaintiff has a right, title and interest over the same. The sale in favour of defendants 2 to 4 by defendant no.1 is not valid and binding on the plaintiff. Held so, it decreed the suit. Assailing the judgment and decree, defendant no.2 filed Title Appeal No.8 of 1985 before the learned Sub-Judge, Nayagarh. Learned lower appellate court held that the settlement made in favour of defendant no.1 enures to the benefit of other co-sharers. Learned lower appellate court concurred with the finding of the learned trial court, but then it held that in 1973 Dasahara all co-sharers took a decision to sell the land in auction and appropriate the sale proceeds. Therefore, it is deemed that the plaintiff had knowledge about the same and admitted that all the co-sharers had taken a joint decision to sell the lands in auction and to appropriate the sale proceeds. The sale proceeds were distributed among all co-sharers including plaintiff. Granting receipt in the circumstance did not arise at all. All the co-sharers had authorised defendant no.1 to sell the land as stood in his name. The suit was not maintainable. Held so, it allowed the appeal. 6. The second appeal was admitted on the substantial questions of law enumerated in ground nos.(i), (ii) and (iii) of the appeal memo. The same are - “i. Whether the lower appellate court is justified to hold that the transfers made by defendant no.1 in favour of other defendants under three registered sale deeds are valid and binding on the plaintiff specially when all the co-sharers in respect of the suit property are admittedly not parties to file impugned sale transactions ? ii. Whether the title of thirty-three co-sharers of the suit properties can be conveyed under the registered sale deeds executed by defendant no.1 (a co-sharer) even assuming not admitting that all the co-sharers had mere consent to the impugned sale transactions ? iii. ii. Whether the title of thirty-three co-sharers of the suit properties can be conveyed under the registered sale deeds executed by defendant no.1 (a co-sharer) even assuming not admitting that all the co-sharers had mere consent to the impugned sale transactions ? iii. Whether defendant no.1 becomes competent to transfer the suit property exceeding his one thirty-third share merely because there was a settlement of the entire suit lands in his favour under the provisions of Section 7 of the Orissa Estates Abolition Act and whether in such an event the transferees (defendant nos.2 to 4) on the strength of the sale deeds executed by defendant no.1 in their favour acquire any title to the property specially when defendant no.1 has no subsisting title to alienate the property in question (Schedule B, C and D) in favour of them ?” 7. Heard Mr. Maheswar Mohanty, learned counsel on behalf of Mr. D.P. Dhal, learned counsel for the appellant and Mr. Tushar Kumar Mishra, learned counsel on behalf of Mr. C.R. Misha, learned counsel for the respondents. 8. Mr. Mohanty, learned counsel for the appellant submitted that the suit land vested in the State after coming into force of the OEA Act. Learned lower appellate court is not justified in holding that the suit was not maintainable. There are several co-sharers. Defendant no.1 filed an application under Sections 6 and 7 of the OEA Act for settlement of the land. The same was allowed by the OEA Collector. The settlement in favour of defendant no.1 enures to the benefit of other co-sharers. Thus defendant no.1 has no authority to alienate the land. 9. Per contra, Mr. Mishra, learned counsel for the respondents submitted that there are several co-sharers. The suit at the behest of one of the co-sharer is not maintainable. Defendant no.1 made an application under Sec. 7 of the OEA Act for settlement of land. Notice was duly published. The villagers were aware of the case. No objection was filed. The OEA Collector, on taking a holistic view of the matter, settled the land in favour of defendant no.1. Thus defendant no.1 became the paramount owner of the land. The villagers took a decision to put the land in auction and appropriate the sale proceeds. Accordingly the land was sold in auction to the defendants. The sale proceeds had been appropriated by the villagers. Thus defendant no.1 became the paramount owner of the land. The villagers took a decision to put the land in auction and appropriate the sale proceeds. Accordingly the land was sold in auction to the defendants. The sale proceeds had been appropriated by the villagers. He sold his interest in favour of other co-sharers. The sale proceeds were distributed amongst all co-sharers. There was no perversity in the finding of the courts below. 10. The jurisdiction of the civil court to entertain suit in respect of any order passed under Chapters II to VI is excluded under Sec. 39 of the OEA Act. In the instant case, the plaintiff has not challenged the order passed by the OEA Collector under Sec.7 of the OEA Act. Thus the civil court has jurisdiction to entertain the suit. Sec. 39 of the OEA Act is not a bar for institution of the suit. 11. The pivotal question is whether defendant no.1 had any authority to alienate the land after settlement was made in his favour. In Hemchandra Dansana v. Dolamani Dansana and others, AIR 1965 Orissa 188, 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. 12. In Dileswar Patel and others v. Mst. Binodini Patel and others, 55 (1983) CLT 282, it was held that if settlement is made on the application under Sec.8-A of the OEA Act filed by one of the intermediaries, benefit thereof will accrue to the co-sharers even though they have not joined in the application. It was further held that Sec.7(1) of the OEA Act enjoins that the settlement shall be deemed to have been made with all the co-sharers owning the estate. The same view was reiterated in Bhagaban Panda and another v. Dullav Panda and others, 32 (1990) OJD 230 (Civil). 13. It was further held that Sec.7(1) of the OEA Act enjoins that the settlement shall be deemed to have been made with all the co-sharers owning the estate. The same view was reiterated in Bhagaban Panda and another v. Dullav Panda and others, 32 (1990) OJD 230 (Civil). 13. In view of the authoritative pronouncement of this Court in the decisions cited supra, the conclusion is irresistible that the settlement of land made in favour of defendant no.1 will enure to the benefit of other co-sharers, even though they had not joined in the application. 14. Schedule-A land consists of an area of Ac.8.82 dec. There are 33 co-sharers. By means of three sale deeds, defendant no.1 had alienated a major chunk of land having an area of Ac.6.48 dec. in favour of other defendants. Learned trial court is wholly justified in holding that the settlement made in favour of defendant no.1 under Sec. 7 of the OEA Act will enure the benefit to all the co-sharers. The defendant no.1 cannot claim exclusive title and possession over the same. The plaintiff and other co-sharers have a right, title and interest over the same. The question that falls for consideration is as to whether the entire sale deeds are invalid and inoperative on the ground that the defendant no.1 transferred much more than his own interest in the disputed lands. The sale deeds cannot be invalidated in toto. It would be valid and operative to the extent of defendant no.1’s interest in the disputed lands. His interest is 1/33 of the total extent. The sale deed is invalid to the said extent in the disputed lands and is invalid in respect of excess interest transferred. In view of the same, the sale deed executed by defendant no.1 on 24.10.1970 in respect of Ac.0.29 dec. in favour of Harihar Mohapatra is valid. The rest of the sale deeds Exts.A & B are invalid. 15. In the wake of the aforesaid the impugned judgment and decree is set aside. The appeal is allowed to the extent indicated above. Consequently the suit is partly decreed. No costs.