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2017 DIGILAW 199 (ORI)

Krushna Chandra Barik v. State of Orissa

2017-02-27

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. The plaintiff is the appellant against an affirming judgment in a suit for declaration of title and permanent injunction. 2. The case of the plaintiff is that the suit land originally belong to Gobinda Chandra Behera and others, who were the ex-intermediaries. It was recorded as Anabadi land. It was a village jungle. The ex-intermediaries executed an Amalanama patta in favour of his father in the year 1945. His father reclaimed the land and converted the same to the agricultural land. During major settlement operation of the year 1969, the land had been illegally recorded in favour of the Government. His father was in possession of the land and after his death, he is in possession of the same. In the year, 1974, the plaintiff filed Misc. Case No.129 of 1974 before the Tahasildar for fixation of rent. The petition was allowed and accordingly rent schedule was prepared in his favour. Subsequently, the defendant no.4 in a clandestine manner recorded the suit land in her favour. He assailed the same before the Sub-Divisional Officer. The Sub-Divisional Officer set aside the order of the Tahasildar and held that the land to be recorded in the name of the Government. With this factual scenario, the suit has been filed. Though notice was issued, the defendants had chosen not to file any written statement. The defendant no.1, however, contested the suit. 3. To substantiate the case, the plaintiff had examined one witness and on his behalf four documents had been exhibited. No evidence was adduced by the defendants. 4. Learned trial court on a threadbare analysis of evidence on record and pleadings came to hold that the plaintiff has not challenged the order of the Sub-Divisional Officer and as such he cannot maintain the suit. He has no right over the suit land. The plaintiff unsuccessfully challenged the same before the learned appellate court, which was eventually dismissed. 5. The second appeal was admitted on the substantial question of law enumerated in ground nos.2 and 3 of the memorandum of appeal. The same are: “2. He has no right over the suit land. The plaintiff unsuccessfully challenged the same before the learned appellate court, which was eventually dismissed. 5. The second appeal was admitted on the substantial question of law enumerated in ground nos.2 and 3 of the memorandum of appeal. The same are: “2. Whether in view of the pleading and evidence of the plaintiff about reclamation of the suit land and possession of the same from 1945 by the father of the plaintiff and thereafter by the plaintiff having not been challenged by the defendants by filing written statement and leading evidence if the provisions of Section 61 of the Orissa Tenancy Act apply to the case and if the plaintiff shall be deemed to have acquired tenancy right in respect of the suit land. 3. Whether in view of acceptance of rent by the ex-landlord from the father of the plaintiff in respect of the suit land and thereafter from the plaintiff if a tenancy for agriculture purpose shall be deemed have been created in respect of the suit land and it filing a case under Section 6 and 7 of the Orissa Estate Abolition Act was under misconception of law and rent schedule having been granted was the sub-divisional officer justified in setting aside the same and if the S.D.O. had jurisdiction to do so in the eye of law and are the forums below justified in relying upon the order of the S.D.O. in non-suiting the plaintiff.” 6. Heard Mr. A. K. Mohanty, learned counsel for the appellant and Miss Samapika Mishra, learned Additional Standing Counsel for the respondent nos.1 to 3. 7. Mr. Mohanty, learned counsel for the appellant submitted that ex-intermediaries had granted Amalanama patta in favour of the father of the plaintiff in the year 1945. The father of the plaintiff reclaimed the suit land and converted it to agricultural land. After death of this father, the plaintiff is in possession of the suit land. The plaintiff used to pay rent to the State. The same is a document of 30 years old and as such the same is presumed to be correct. The civil court has ample jurisdiction to examine the correctness of the order passed by the quasi judicial authority. The plaintiff used to pay rent to the State. The same is a document of 30 years old and as such the same is presumed to be correct. The civil court has ample jurisdiction to examine the correctness of the order passed by the quasi judicial authority. He further submitted that after vesting of estate in the State, the plaintiff is a deemed tenant, no formal document was necessary to create an agriculture tenancy. A tenant can be inducted by mere acceptance of rent. He relied on the decision of this Court in the case of Jagannath Nanda vs. Bishnu Dalei & others, 1974 (40) CLT 888. 8. Per contra, Miss Mishra, learned Additional Standing Counsel, supported the judgments. 9. W.W. Daiziel in his final Revisional Settlement Report (1922-1932 A.D.) defines “Amalnama patta” an unregistered lease for reclamation of waste land. The assertion of the plaintiff is that the ex-intermediaries had executed or granted Amalanama patta in favour of his father in the year 1945. But the said document has not seen light of the day. No ekpadia was submitted by the ex-intermediaries. There is no quarrel over the proposition of law laid down in Jagannath Nanda (supra). But the instant case is distinguishable on facts. The plaintiff has instituted the suit on the basis of Amalanama patta said to have been granted by the ex-intermediaries in favour of his father in 1945. He failed to substantiate the plea. Furthermore, the plaintiff filed misc. case no.129 of 1974 before the Tahasildar in the year 1974 for fixation of rent. The petition was allowed. Defendant no.4 assailed the said order before the Sub-Divisional Officer, who set aside the order of the Tahasildar and held that the land to be Govt. land. The said order attained finality. 10. In State of Kerala vs. M.K. Kunhikannan Nambiar, AIR 1996 SC 906 , the apex Court held that even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact be effective inter parties until it is successfully avoided or challenged in higher forum. Mere use of the word "void" is not determinative of its legal impact. The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. Mere use of the word "void" is not determinative of its legal impact. The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise. 11. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.