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2017 DIGILAW 1420 (ORI)

Maheswar Sahu (since dead) v. State of Orissa

2017-12-08

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. This appeal is directed against the judgment and decree dated 29.11.2002 and 09.12.2002 respectively passed by the learned Addl. District Judge, Jagatsinghpur in Title Appeal No.112 of 1997 dismissing the appeal and thereby confirming the judgment and decree dated 30.09.1997 and 25.10.1997 respectively passed by the learned Civil Judge (Senior Division), Jagatsinghpur in Title Suit No.191 of 1995. 2. Plaintiff-respondent no.1 instituted the suit for declaration of right, title and interest over the suit land, decree passed in Title Suit No.171 of 1991 and Title Suit No.320 of 1993 are invalid, inoperative and not binding on him, order dated 27.8.1994 passed by the Tahasildar in mutation case in favour of defendant no.1 is illegal and permanent injunction. 3. The dispute pertains to an area of Ac.0.28 dec. out of Ac.2.45 dec. appertaining to Sabik Khata No.1, Sabik Plot No.446 which corresponds to Consolidation Khata No.584, Consolidation Plot No.698. 4. Case of the plaintiff was that Sabik Plot No.446 appertaining to Sabik Khata No.1, Ac.2.45 dec. of land was recorded as ‘Nijchas land’ of ex-intermediary Rai Bahadur Bijoy Chand Mohatab of Burdhwan estate. The estate vested in the State on 27.11.1952. The ex-intermediary filed a petition under Sec. 6 and 7 of the Orissa Estates Abolition Act (‘OEA Act’) before the Estate Abolition Collector for settlement of the land, which was registered as OEA Case No.10 of 1957. The petition was rejected. He filed appeal. The appellate authority remanded the case to the Estate Abolition Collector. After remand, the Estate Abolition Collector rejected the claim of the applicant. Assailing the order, he filed OEA Appeal No.34 of 1965 before the Addl. District Magistrate, Cuttack. The ADM allowed the claim of the applicant to the extent of Ac.1.67 dec. of land. Balance Ac.0.40 dec. of land was not settled in favour of him, since it was found that the land had been leased out to the Fishery Department by the ex-intermediary. The ex-intermediary filed Second Appeal No.38 of 1966 before the Member, Board of Revenue. The Member, Board of Revenue settled Ac.0.40 dec. of land in favour of ex-intermediary. Thus the entire area of Ac.2.07 dec. of land was settled in favour of ex-intermediary. While matter stood thus, the consolidation operation in the area where the land falls, started. Sabik Plot No.446 Ac.2.07 dec. was sub-divided into several plots. The Member, Board of Revenue settled Ac.0.40 dec. of land in favour of ex-intermediary. Thus the entire area of Ac.2.07 dec. of land was settled in favour of ex-intermediary. While matter stood thus, the consolidation operation in the area where the land falls, started. Sabik Plot No.446 Ac.2.07 dec. was sub-divided into several plots. Consolidation Plot No.698 corresponds to Consolidation Khata No.584 (disputed plot). The land register was prepared in the name of Udaya Chand Mohatab. In the remarks column, name of Utkalmani Gopabandhu Pathagar has been noted. One Narahari Das filed an objection under Sec. 9 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (“OCH & PFL Act”) to record his name. His claim was disallowed. Defendant no.1 manipulated the consolidation parcha and mentioned his father’s name in column no.31 by scoring through the name of Utkalmani Gopabandhu Pathagar. Final consolidation ROR was published in favour of the ex-intermediary as ‘Bebandobasta’ status. While the matter stood thus, defendant no.1 filed an application to mutate Consolidation Plot No.698 in his name on the ground that his father had obtained a patta from ex-intermediary as the same was in his possession as a lessee. The application was rejected. Thereafter, defendant no.1 instituted T.S. No.171 of 1991 for declaration of right, title and interest, confirmation of possession and permanent injunction in respect of the suit land in the court of the learned Subordinate Judge, Jagatsinghpur against ex-intermediary. The State of Orissa was not a party to the suit. The suit was decreed ex parte. The civil court has no jurisdiction to entertain the suit in view of the bar contained in Sec.51 of the OCH & PFL Act. Thereafter, defendant no.1 filed an application for fixation of rent in his favour. The same was rejected. He filed Mutation Case No.1170 of 1994 to mutate the land in his favour on the basis of ex parte decree. The mutation case was allowed. It was further pleaded that defendant no.2 had also instituted T.S. No.320 of 1993 in the court of the learned Civil Judge (Junior Division), Jagatsinghpur for declaration of title in respect of the self-same land on the ground that he had perfected title by way of adverse possession. State of Orissa was not a party to the suit. The suit was decreed ex parte. The decree is void and not binding on the plaintiff. State of Orissa was not a party to the suit. The suit was decreed ex parte. The decree is void and not binding on the plaintiff. With this factual scenario, the State of Orissa instituted the suit. 5. Defendant no.1 filed a written statement. It was pleaded that his father Pahali Sahoo was a tenant under the ex-intermediary. After vesting of the estate, he was in possession of the land as stitiban tenant. He is a deemed tenant under Sec. 8(1) of the OEA Act. The consolidation authority had wrongly recorded the land in the name of the ex-intermediary with a remark ‘Bebandobasta’. In the remarks column, the name of his father has been mentioned that he was in possession of the suit land. He could not take steps to rectify the same. Thereafter, he instituted Title Suit No.171 of 1991 for declaration of title, confirmation of possession and permanent injunction against the sons of the ex-intermediary. The suit was decreed. Title Suit No.320 of 1993 was a collusive suit between the defendant no.2 and the State wherein ex parte decree was passed. Plaintiff has no locus standi to institute the suit. 6. Defendant no.2 filed a written statement denying the assertions made in the plaint. It was pleaded that the suit land originally belonged to the ex-intermediary of Bardhwan estate. His father was a settled raiyat of the village. The ex-intermediary issued a lease patta in his favour on 5.1.1951 on payment of salami of Rs.25/-. He constructed a residential house over the suit land. After vesting of the estate, his father was in possession of the suit land. He could not take steps to record the land in his favour. After death of his father, he is in possession of the suit land. He instituted Title Suit No.320 of 1993 against the sons of ex-intermediary. The suit was decreed. Neither the plaintiff nor defendant no.1 was the true owner of the suit land. 7. Defendants 6 to 8 filed a written statement supporting the stand of the plaintiff. Their case was that the suit land is situated in the prime locality of Kujang Bazar by the side of Cuttack-Paradeep road. The same is adjacent to the quarters of Tahasildar, B.D.O., J.M.F.C., Kujang and Kujang P.S. The suit land is used by the public at large. Their case was that the suit land is situated in the prime locality of Kujang Bazar by the side of Cuttack-Paradeep road. The same is adjacent to the quarters of Tahasildar, B.D.O., J.M.F.C., Kujang and Kujang P.S. The suit land is used by the public at large. The consolidation authority recorded the kissam of the land as ‘patita’ under Bebandobasta khata. Pursuant to the notification no.14782 dated 14.3.1991, OEA Collector, Kujang initiated Suo Motu Case No.1208 of 1991 to settle the land. Defendant no.1 is an encroacher. He has manipulated the parcha. It is apt to state here that during pendency of the appeal, sole appellant died, where after his legal representatives have been substituted. 8. Stemming on the pleadings of the parties, learned trial court struck eleven issues. Parties led evidence, oral and documentary, to substantiate their cases. On an anatomy of the pleadings and evidence, learned trial court came to hold that the father of defendant no.1 was not in possession of the suit land at the time of vesting. The ex-intermediary had the title over the land by virtue of settlement in his favour. Defendant no.1 was not a tenant under the ex-intermediary prior to vesting of the estate. Defendants 1 and 2 had relied on forged documents suppressing vital facts in the plaint to obtain the decree in their favour. The same is fraud on court. Decree in Title Suit No.171 of 1991 is a nullity and not binding on the plaintiff. Decree in Title Suit No.171 of 1991 obtained by defendant no.1 and decree in Title Suit No.320 of 1993 are void, inoperative and not binding on the plaintiff. Process of settlement under Sec. 6 and 7 of the OEA Act could not be completed due to non-fixation of fair and equitable rent. The State has right, title and interest over the suit land. The State is the paramount owner of the land. Held so, it decreed the suit. Assailing the judgment and decree, defendant no.1 filed Title Appeal No.112 of 1997 before the learned Addl. District Judge, Jagatsinghpur, which was eventually dismissed. 9. The second appeal was admitted on the following substantial questions of law. “1. Whether plaintiff has the locus standi to maintain the suit ? 2. Held so, it decreed the suit. Assailing the judgment and decree, defendant no.1 filed Title Appeal No.112 of 1997 before the learned Addl. District Judge, Jagatsinghpur, which was eventually dismissed. 9. The second appeal was admitted on the following substantial questions of law. “1. Whether plaintiff has the locus standi to maintain the suit ? 2. Which of the judgments and orders passed by the different Courts, as appeared in evidence in the courts below, shall prevail relating to the subject-matter of dispute? 10. Heard Mr. Kishore Kumar Jena, learned counsel for the appellants, Mr. R.P. Mohapatra, learned Addl. Government Advocate for respondent no.1 and Mr. Bichitrananda Satpathy, learned counsel for respondent no.2. 11. Mr. Jena, learned counsel for the appellants submitted that the Member, Board of Revenue had settled the land in favour of the ex-intermediary under Sec.6 and 7 of the OEA Act in Second Appeal No.38 of 1966. Father of the plaintiff was a tenant under the ex-intermediary. The ex-intermediary had not submitted ekpadia. After vesting of the estate, he became the deemed tenant under Sec. 8(1) of the OEA Act. After death of his father, the plaintiff is in possession of the suit land. Consolidation ROR has been wrongly published. But then, his father’s name has been recorded in the remarks column of the ROR. Defendant no.1 instituted Title Suit No.171 of 1991 against the ex-intermediary. The same was decreed. Since the land was settled in favour of the ex-intermediary in Second Appeal No.38 of 1966, the State of Orissa was neither necessary nor proper party to the suit filed by him. The State of Orissa has no locus standi to institute the suit. He further contended that against the order refusing to mutate the land, defendant no.1 approached this Court in OJC No.2268 of 1994. By order dated 11.4.1994, this Court directed the Tahasildar to conclude the matter on the basis of the decree of the civil court. Thereafter, the Tahasildar mutated the land in the name of the defendant no.1. Mutation appeal filed by the State against the said order was dismissed. Since ROR was not issued, defendant no.1 filed OJC No.6810 of 1995. This Court directed the Tahasildar to complete the proceeding within three weeks. Thereafter, ROR was issued in his favour. The suit was filed before disposal of OJC No.6810 of 1995. Mutation appeal filed by the State against the said order was dismissed. Since ROR was not issued, defendant no.1 filed OJC No.6810 of 1995. This Court directed the Tahasildar to complete the proceeding within three weeks. Thereafter, ROR was issued in his favour. The suit was filed before disposal of OJC No.6810 of 1995. The said fact was not brought by the State to the notice of this Court. Defendant no.1 was not a party in T.S. No.320 of 1993 instituted by the defendant and as such, he is not bound by the decree. He further contended that during pendency of the second appeal, legal heirs of ex-intermediary filed WP(C) Nos.13977 and 13974 of 2009 for a direction to the OEA Collector to determine the fair and equitable rent in respect of the suit land. This Court directed the Tahasildar to conclude the proceeding within a stipulated time. By order dated 22.8.2013 in OEA Case No.3205 of 2002, the OEA Collector assessed the rent excluding the land of the defendant no.1. 12. Per contra, Mr. Mohapatra, learned AGA submitted that the learned courts below held that OEA Collector rejected the claim petitions twice since ex-intermediary was not in khas possession of the suit land. Ex-intermediary preferred appeal before the ADM. The appellate authority allowed the claim in respect of Ac.2.07 dec. of land as would be evident from Ext.11 information sheet issued by the Tahasildar. Ex-intermediary preferred Second Appeal No.38 of 1966 before the Member, Board of Revenue. Order dated 3.2.1966 passed by the Member, Board of Revenue vide Ext.9 reveals that the entire land has not been settled in favour of the ex-intermediary. The Member, Board of Revenue remanded the matter to the OEA Collector. No final order to settle the land in favour of ex-intermediary has been passed by the competent authority. After vesting of the estate, the State is the absolute owner of the suit property. The judgments are not binding on the plaintiff since the plaintiff was not a party to the suits filed by the defendant nos.1 and 2 respectively. 13. Mr. Satpathy, learned counsel for the respondent no.2 submitted that respondent no.2’s father was a tenant under the ex-intermediary. The ex-intermediary executed the lease deed in favour of his father on 5.1.1951. Defendant no.2’s father used to pay rent to the ex-intermediary. After his death, defendant no.2 has been paying rent. 13. Mr. Satpathy, learned counsel for the respondent no.2 submitted that respondent no.2’s father was a tenant under the ex-intermediary. The ex-intermediary executed the lease deed in favour of his father on 5.1.1951. Defendant no.2’s father used to pay rent to the ex-intermediary. After his death, defendant no.2 has been paying rent. In the consolidation operation, the suit land has been recorded in the name of the successor of the ex-intermediary due to non-production of patta granted by the ex-intermediary. Defendant no.2 instituted Title Suit No.320 of 1993 for declaration of title. The same was decreed. Defendant no.2 is in possession of the suit land. Rest portion of the lands have been used by the general public for communal purposes. Defendant no.1 is not in possession of the suit land. A passage exists over the suit land for ingress and egress to the residential quarters of JMFC, Kujang, staff of the Kujang tahasil and Kujang block. There is another passage in front of Kujang P.S. The plaintiff managed to obtain ex parte decree by suppressing the facts. 14. Article 300 of the Constitution of India postulates: “300. Suits and proceedings – (1) The Governor of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted (2) If at the commencement of this Constitution – (a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and (b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province 15. On an interpretation of the said Article, the Constitution Bench of the apex Court in the case of State of Punjab v. The Okara Grain Buyers Syndicate Ltd., Okara and another, AIR 1964 SC 669 held that the State is an organised political institution. Under Article 300 of the Constitution, the Government of the Union and the Government of a State are enabled to sue and be sued in the name of Union of India and the Government of the State as the case may be. 16. The Constitution Bench of the apex Court in the case of M/s. Kasturi Lal Ralia Ram Jain v. The State of Uttar Pradesh, AIR 1965 SC 1039 went in-depth analysis of Article 300 of the Constitution and held as follows: “14. This question essentially falls to be considered under Art. 300 (1) of the Constitution. This article reads thus : The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted." It would be noticed that this article consists of three parts. The first part deals with the question about the form and the cause-title for a suit intended to be filed by or against the Government of India, or the Government of a State. The second part provides, inter alia, that a State may sue or be sued in relation to its affairs in cases like those in which a corresponding Province might have sued or been sued if the Constitution had not been enacted. In other words, when a question arises as to whether a suit can be filed against the Government of a State, the enquiry has to be; could such a suit have been filed against a corresponding Province if the Constitution had not been passed? In other words, when a question arises as to whether a suit can be filed against the Government of a State, the enquiry has to be; could such a suit have been filed against a corresponding Province if the Constitution had not been passed? The third part of the article provides that it would be competent to the Parliament or the Legislature of a State to make appropriate provisions in regard to the topic covered by Art. 300 (1). Since no such law has been passed by the respondent in the present case, the question as to whether the respondent is liable to be sued for damages at the instance of the appellant, has to be determined by reference to another question and that is, whether such a suit would have been competent against the corresponding Province. 17. The word ‘sue’ is defined in Black’s Law Dictionary (10th Edn.) at 1661 as : “To institute a lawsuit against (another party).” The word ‘sue is defined in Webster’s New Dictionary at 369 as : “Seek justice from. –v.i. make application or entreaty.” 18. Thus the conclusion is irresistible that the State of Orissa has locus standi to maintain the suit. 19. Admittedly the suit land originally belonged to Rai Bahadur Bijoy Chand Mohatab of Burdhwan estate. The estate vested in the State after coming into force of the OEA Act. The ex-intermediary filed an application under Sec. 6 and 7 of the OEA Act before the Estate Abolition Collector for settlement of the suit land along with other lands. The application having been rejected, he filed OEA Appeal No.34 of 1964-65 before the Addl. District Magistrate, Cuttack. The appeal was partly allowed on 3.2.1966. Against the said order, ex-intermediary filed OEA Second Appeal No.38 of 1966 before the Member, Board of Revenue, Cuttack. In respect of Khata No.1, Plot No.446, the Member, Board of Revenue held that out of Ac.2.45 dec. of land, Ac.0.40 dec. of land was handed over to the Fishery Department by the Sub-Manager of the ex-intermediary and another Ac.0.38 dec. of land was given on lease to a private person. Rest of the land is fallow and contains a few coconut trees. He rejected the claim of the ex-intermediary in respect of the land given on lease to the Fishery Department and allowed his claim in respect of the remaining land. of land was given on lease to a private person. Rest of the land is fallow and contains a few coconut trees. He rejected the claim of the ex-intermediary in respect of the land given on lease to the Fishery Department and allowed his claim in respect of the remaining land. He allowed the claim of the ex-intermediary in respect of Ac.0.40 dec. of land. The consolidation ROR was published in the name of Rai Bahadur Bijoy Chand Mohatab under ‘Bebandobasta’ status. Since the ex-intermediary had not taken any steps for fixation of rent, the Estate Abolition Collector initiated suo motu proceeding being OEA Case No.1208 of 1991 for settlement of ‘Bebandobasta’ land. While the matter stood thus, two suits were filed before two different courts. Title Suit No.171 of 1991 was filed by defendant no.1 in the court of learned Civil Judge (Senior Division), Jagatsinghpur against the ex-intermediary. The State was not a party in the suit. The suit was decreed ex parte. Similarly defendant no.2 claiming to be the tenant instituted Title Suit No.320 of 1993 in the court of the learned Civil Judge (Junior Division), Jagatsinghpur. The suit was decreed. Both the suits were instituted by defendant nos.1 and 2 in respect of the same land, when consolidation operation was in progress. The civil court has no jurisdiction to entertain the suit for declaration of title in view of the bar contained in Sec. 51 of the OCH & PFL Act. Rightly the courts below held that the judgment and decree passed in both the suits are not binding on the plaintiff. Further, in Encroachment Case No.153/85 of 1992-1990 initiated under the Orissa Prevention of Land Encroachment Act, defendant no.1 made an application to lease out the land in his favour. The plea of defendant no.1 is mutually destructive. He claims to be a tenant, but then made an application before the Tahasildar to lease out the land. On an anatomy of the pleadings and evidence, learned courts below held that the plaintiff-State is a paramount owner of the suit land. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly. 20. On an anatomy of the pleadings and evidence, learned courts below held that the plaintiff-State is a paramount owner of the suit land. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly. 20. The apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, (1999) 3 SCC 722 held that it is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence. 21. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. The parties will bear their own costs throughout.