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2017 DIGILAW 1409 (ORI)

Biswambar Das v. State of Odisha

2017-12-06

D.DASH

body2017
JUDGMENT : This appeal under section 100 of the Code of Civil Procedure has been filed challenging the judgment and decree passed by the learned Senior Civil Judge, Jaleswar in R.F.A. No. 42 of 2015 (R.F.A. No. 59 of 2012 / R.F.A. No. 69 of 2009). 2. The appellant as the plaintiff has filed Title Suit No. 47 of 2000 for declaration of his right, title and interest over the suit land as described in Schedule-A of the plaint. The suit has been filed against the State and the Tahasildar within whose jurisdiction, the suit land stands arraigning them as defendants. The suit having been dismissed, he had filed the appeal. As no fruitful result has been yielded in the appeal; with the dismissal of the suit standing confirmed by the appellate court, the present appeal has been filed. 3. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 4. The plaintiff’s case is that Gajendra Narayan Das and Janardan Das were the Zamindars and they were in possession of the land under C.S. plot no. 205 under C.S. Khata no. 1 admeasuring Ac. 0.025 decimals under “Nija Chas” status. Janardan died issueless and therefore Gajendra possessed the land. In the year 1958, Gajandra died leaving behind his son, Niranjan Das, the father of the plaintiff. He possessed the suit land till his death in the year 1972. The plaintiff being the heir and successor of Niranjan came to possess the suit land from the time of death of his father. It is stated that in the year 1953, when the intermediaries interest with respect to the suit land stood vested with the State free from all encumbrances by virtue of the provisions of the Orissa Estate Abolition Act and after it’s coming into force, the possession of the suit land however was not taken over and possessed by the State and it continued as before. It is asserted that the plaintiff has been in possession of the suit land till now openly, peacefully, continuously and without any interruption from any quarter. It is asserted that the plaintiff has been in possession of the suit land till now openly, peacefully, continuously and without any interruption from any quarter. It is further stated that in the major settlement the suit land has however been recorded in favour of the ‘State’ under ‘Rakhit Khata’ being assigned with the kisam “Gramya Jungle” which in the current settlement is stated as “Pala”. The plaintiff filed the suit in view of the threat given by the local Revenue Inspector for initiating proceeding alleging unauthorized possession of the suit land by him and for his eviction. Projecting the above as the cause of action for the suit, the plaintiff after service of notice under section 80 of the Code has filed the suit with the prayer for declaration of his right, title and interest over the suit land. 5. The defendants without filing written statement however contested the suit. 6. The trial court sat over to decide the claim of right, title and interest over the suit land as laid by the plaintiff. On going through the evidence both oral and documentary and upon their analysis in the backdrop of the case as projected in the plaint, the trial court has found the plaintiff to have failed to establish the right, title and interest over the suit land and accordingly has dismissed the suit. In the appeal preferred by the unsuccessful plaintiff, ultimately the said result of dismissal of the suit has remained confirmed. 7. The present appeal has been admitted on the following substantial question of law :- “Whether the plaintiff’s suit though based on possession both prior to and after vesting of the suit land under the OEA Act as is seen from the tenancy ledger prepared after vesting of the estate for the purpose of collection of rent from the tenants under the State including the intermediaries, the courts below are right in dismissing the suit merely in the absence of an order under section 6 & 7 of the OEA Act in favour of the predecessors of the plaintiff ignoring the statutory provision of deemed settlement? 8. 8. Learned counsel for the appellant with reference to the provisions of section 7 of the Orissa Estate Abolition Act submitted that in case of such possession of the land continuing with the predecessors of the plaintiff after vesting which is supported by the entries in the tenancy ledger, the land as such has to be deemed to have been settled on them by virtue of the provisions of section 7 of the OEA Act. In support of the above, he has placed reliance on the decisions in case of (i) Puja Madan Mohan Panda Samanta and Others Vrs. Keshab Rout and others 76(1993) CLT 611; (ii) Rabindra Kumar Das and others Vrs. The Commissioner Settlement and Consolidation and Others; 2010 (Supp-II) OLR 303; (iii) Sri Ramakrishna Deo Vrs. State of Orissa and others (XXXV) 1967 CLT 1063; (iv) Sri Krishna Chandra Gajapati Narayan Deo Vrs. Atreyaparupn Apparao and another (XXXIII) 1967 CLT 155 and (v) Budhan Singh vs Babi Bux and another; AIR 1970(SC) 1880. 9. Learned counsel for the State submits that said provisions of section 7 of the OEA Act have no applicability to the case in hand so as to come to the aid of the plaintiff in sustaining his claim of right, title, interest and possession over the suit land is concerned. According to him, the provisions refer to certain other lands in khas possession of intermediaries which may be retained by them on payment of rent as raiyat having occupancy right. He further submits that there is no pleading as regards that deemed settlement and now by banking upon the entry in the tenancy ledger such a case at this stage of second appeal cannot be permitted to be projected for the first time. 10. Before proceeding to record an answer on the above framed substantial question of law, keeping in view the rival submission, the case laid in the plaint, needs further elaboration. It has been stated in para-2 of the plaint that Gajendra Narayan Das and Janadran Das were in possession of the suit land. Janardan died issue less. In the year, 1958 after the death of Gajendra, plaintiff’s father Niranjan came to possess the suit land and on his death in the year 1972, the plaintiff possessed the same. The possession is said to be open, peaceful and continuous without interruption asserting all the rights as that of owner. Janardan died issue less. In the year, 1958 after the death of Gajendra, plaintiff’s father Niranjan came to possess the suit land and on his death in the year 1972, the plaintiff possessed the same. The possession is said to be open, peaceful and continuous without interruption asserting all the rights as that of owner. It has been simply stated that the intermediary interest stood vested with the State in the year 1953 by virtue of the coming into force of the provisions of Orissa Estate Abolition Act. It may be stated here that there is absolutely no pleading that after such vesting of the right of the intermediaries in so far as the suit land is concerned with the State free from all encumbrances, the predecessors in interest of the plaintiff, possessed the land as its owner denying the title of the State and claiming the title unto themselves although. Thus, the pleadings are wholly lacking in asserting a case of acquisition of the title over the suit land by way of adverse possession. The act of possession in respect of the suit land even if accepted that after such vesting, it continued in the hands of the plaintiff’s predecessors, the same has to be taken in the eye of law as permissible unless it is pleaded and proved that at any subsequent point of time they disowned the State’s title coming to be vested with it by operation of law and accordingly possessed the suit land as its owner. There is no pleading on that score in the plaint nor any evidence in that light has been let in. 11. Coming to the fact situations of the case, this Court finds no case to have at all been set forth by the plaintiff as that of deemed settlement of the land in question in favour of his predecessors. Rather it is seen that in the major settlement record, the suit land has been recorded in the name of the State with kisam ‘Gramya Jungle’ in the year, 1990. Rather it is seen that in the major settlement record, the suit land has been recorded in the name of the State with kisam ‘Gramya Jungle’ in the year, 1990. When it is stated that for having remained in possession of the property for more than thirty years openly, peacefully, and continuously without any interruption from any quarter with hostile animus, the State’s title over the property in question has stood extinguished, no such case as that of deemed settlement as is now canvassed is seen to have placed in the plaint. On this ground alone, thus there arises no further need to delve upon the submission of the learned counsel for the appellant with reference to the cited decisions as that submission at this stage of second appeal gets repelled being without any foundation. For the aforesaid discussion and reasons, this Court finds total absence of the foundation in the pleading so as to proceed with the exercise of returning answers to the substantial question of law. 12. In the result, the appeal stands dismissed. No order as to cost is passed, in the facts and circumstances of the case.