Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1355 (ORI)

Government of Orissa v. Baidhar Mahapatra

2017-11-25

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Defendants 1 and 2 are the appellants against a reversing judgment. 2. Respondents 1 and 2 as plaintiffs instituted the suit for declaration of right, title and interest, order dated 14.5.1982 passed by the OEA Collector, Basudevpur in OEA Case No.1 of 1982 is illegal and permanent injunction. Case of the plaintiffs is that the suit land originally belonged to ex-landlord Satya Sundar Mahapatra and Shyam Sundar Mahapatra. They sold the suit land to Rangalata Dei, Dausalya Dei, Purnamasi Dei and Janaki Dei by means of hat patta. Rangalata Dei and others cultivated the suit land, paid rent to the ex-landlord and obtained rent receipts. After vesting of the estate under the Estate Abolition Act (‘OEA Act’), ex-landlord submitted ekpadia in favour of Rangalata Dei and others to the Government. Thereafter, they paid rent to the Government and obtained rent receipts. In an amicable family settlement, the suit land fell to the share of Rangalata Dei. Name of Rangalata Dei was recorded in the M.S. R.O.R published on 16.8.1973. On 11.9.1981, she sold the lands to the plaintiffs by means of two registered sale deeds and delivered possession to them. The plaintiffs are in possession of the suit land. In the year 1982, the Tahasildar, Basudevpur initiated OEA Case No.1 of 1982. By order dated 14.5.1982, the Tahasildar declared that the hat patta is void and took possession of the suit land. With this factual scenario, they filed the suit seeking the relief’s mentioned supra. 3. Defendant no.1 and 2 filed a written statement denying the assertions made in the plaint. The case of the defendants is that the suit is not maintainable and is barred by limitation and that the notice under Sec. 80 CPC is illegal. The identity of the suit land as described in the plaint is vague. The suit is barred under Sec. 39 of the OEA Act. The suit land is communal in nature. 4. On the inter se pleadings of the parties, learned trial court has framed five issues. Both the parties led evidence. The suit was dismissed. The plaintiff filed appeal before the learned District Judge, Balasore, which was subsequently transferred to the learned Addl. District Judge, Bhadrak and renumbered as T.A 55/161 of 1985-I/1987. The same was allowed. 5. The second appeal was admitted on the following substantial question of law. Both the parties led evidence. The suit was dismissed. The plaintiff filed appeal before the learned District Judge, Balasore, which was subsequently transferred to the learned Addl. District Judge, Bhadrak and renumbered as T.A 55/161 of 1985-I/1987. The same was allowed. 5. The second appeal was admitted on the following substantial question of law. “Whether the suit is barred in view of Sec. 39 of the Orissa Estates Abolition Act ?” 6. Heard Mr. R.P. Mohapatra, learned Addl. Government Advocate for the appellants and Mr. A.K. Mohapatra, learned counsel on behalf of Mr. P. Kar, learned Senior Advocate for the respondents 1 and 2. 7. Mr. Mohapatra, learned AGA submitted that the Tahasildar, Basudevpur initiated a proceeding under Sec. 5(i) of the OEA Act and cancelled the alleged lease granted in favour of Rangalata Dei & others. Thus the jurisdiction of the civil court is barred under Sec. 39 of the OEA Act. 8. Per contra Mr. Mohanty, learned counsel for the respondents submitted that the suit land originally belonged to ex-landlord. They executed a hat patta vide Ext.1 in favour of Rangalata Dei, Dausalya Dei, Purnamasi Dei and Janaki Dei and delivered possession. Thereafter Ranagalata Dei and others were in cultivating possession of the land and paid rent to the ex-landlord. The estate vested in the State free from all encumbrances. The ex-landlord submitted ekpadia in their favour. In an amicable family settlement, the suit land was allotted to the share of Rangalata Dei. M.S.ROR was published in the name of Rangalata Dei. She sold the land to the plaintiffs by means of two registered sale deeds vide Exts.5 and 6 and delivered possession to the plaintiffs. Initiation of proceeding by the OEA Collector, Basudevpur is illegal and consequently the order passed by him is void. The civil court has jurisdiction to entertain the suit. 9. Before adverting to the contentions raised by the learned counsel for both the parties, it will necessary to set out Section 39 of the OEA Act. “39. Initiation of proceeding by the OEA Collector, Basudevpur is illegal and consequently the order passed by him is void. The civil court has jurisdiction to entertain the suit. 9. Before adverting to the contentions raised by the learned counsel for both the parties, it will necessary to set out Section 39 of the OEA Act. “39. Bar to jurisdiction of civil courts in certain matters – No suit shall be brought in any civil court in respect of any entry in or omission from a compensation assessment roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subject of any application made or proceeding taken under the said Chapters.” 10. In Collector, Cuttack v. Atul Chandra Das and another, ILR 1972 Cuttack 753, a Division Bench of this Court, on an interpretation of Sec. 5(i) of the OEA Act, came to hold that if the proceeding before the Estates Abolition Collector was in accordance with law, the conclusion reached in the proceeding leading to cancellation of the lease must be taken to have been final subject to any appeal under the act. Since the proceeding under Sec. 5(i) is one under Chapter II of the Act, the bar under Sec. 39 does arise. It was further held that the proceeding under Sec. 5(i) of the OEA Act was not a valid one since notice was not served on the plaintiff so as to raise a bar under Sec. 39 of the OEA Act against the plaintiff. 11. In Achutananda Swain v. Hadibandhu Swain and others, 1986 (II) OLR 427, on an interpretation of Sec. 39 of the OEA Act, a Division Bench of this Court held thus : “According to the section, the following classes of suits cannot be instituted in the civil court: 1. A suit in respect of any entry in or omission from a compensation assessment roll. 2. A suit in respect of any order passed under Chapters II to VI. 3. A suit concerning any matter which is or has already been the subject of any application made or proceeding taken under Chapters II to VI.” 12. In Secretary of State v. Mask & Co., AIR 1940 Privy Council 105 is a locus classicus on the subject. A suit in respect of any order passed under Chapters II to VI. 3. A suit concerning any matter which is or has already been the subject of any application made or proceeding taken under Chapters II to VI.” 12. In Secretary of State v. Mask & Co., AIR 1940 Privy Council 105 is a locus classicus on the subject. It was held - “….It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.” 13. Notwithstanding the bar contained in Sec. 39 of the OEA Act, the civil court has jurisdiction to entertain the suit in two contingencies enumerated in Mask & Co. (supra). 14. In Ram Nath Mandal and others v. Jojan Mandal and others, AIR 1964 Pat-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 a 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 creation 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 authoritative pronouncement of the Full Bench decision in the case of Ram Nath Mandal (supra), Ext.1 requires registration under Sec. 17 of the Registration Act. The Tahasildar, Basudevpur initiated OEA Case No.1 of 1982 under Section 5(i) of the OEA Act. In view of the authoritative pronouncement of the Full Bench decision in the case of Ram Nath Mandal (supra), Ext.1 requires registration under Sec. 17 of the Registration Act. The Tahasildar, Basudevpur initiated OEA Case No.1 of 1982 under Section 5(i) of the OEA Act. The plaintiff and his vendor were parties to the said case. Notices were duly served on them. The plaintiffs did not produce Ext.1 said to have been executed by the ex-landlord before the Tahasildar. After affording opportunity of hearing to the plaintiffs the same was cancelled. 15. Learned trial court, on an anatomy of the pleadings and evidence on record dismissed the suit. The finding of the learned trial court was upset by the learned lower appellate court on untenable and unsupportable ground. Learned lower appellate court in para-7 of the judgment came to held that “Ext.1, the unregistered lease deed also shows that the lease has been granted by the ex-zamindar in favour of Rangalata Dei and others for agricultural purpose. It is true that under the provisions of the Indian Registration Act and Transfer of Property Act. Lease of immovable property is required to be registered”. In the same paragraph it held that “Ext.1 being a lease for agricultural purpose is not compulsorily registrable and at the same time it confers right, title and interest over the leasees for the suit land”. The judgment suffers from internal inconsistency. Learned lower appellate court further held that rent receipts, Exts.3/a, 3/b, 3/c and 3/d have been issued without prejudice. The other rent receipts do not bear the seal. 16. The rent receipts had been granted without prejudice. This Court in the case of Magu Sahu v. Bhramarbara Behera and others, 44 (1977) CLT 65 held that the words “without prejudice” import into any transaction that the parties have agreed that as between themselves the receipt of money by one and its payment by the other shall not by themselves have any legal effect on the rights of the parties, but they shall be open to settlement by legal controversy as if the money had not been paid. Acceptance of rent under such rent receipts cannot confer any tenancy interest. The substantial question of law is answered accordingly. 17. In the wake of the aforesaid, the impugned judgment is set aside. The appeal is allowed. Consequently the suit is dismissed. Acceptance of rent under such rent receipts cannot confer any tenancy interest. The substantial question of law is answered accordingly. 17. In the wake of the aforesaid, the impugned judgment is set aside. The appeal is allowed. Consequently the suit is dismissed. There shall be no order as to costs.