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2017 DIGILAW 234 (ORI)

Gangadhar Sai v. Collector, Bolangir

2017-03-03

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This is an appeal from the judgment and decree dated 5.2.1994 and 21.2.1994 respectively passed by the learned District Judge, Balangir in Title Appeal No.80 of 1991 reversing the judgment and decree dated 8.10.1991 and 8.11.1991 respectively passed by the learned Subordinate Judge, Balangir in Title Suit No.88 of 1984. 2. The dispute pertains to a big tank appertaining to Plot No.1139, area Ac.22.438 dec. and Plot No.1174, area Ac.0.120 dec., total Ac.22.558 dec., of village Behera Pali in the district of Bolangir. The case of the plaintiffs is that Bhojaram was a Gountia of village Behera Pali. Judhistir Sai was the grand son of Bhojram. The plaintiffs are the legal heirs and successors of Judhistir. Bhojram had excavated the tank over the suit land. After death of Bhojaram, his son and grand sons remained in possession of the tank. During 1916 settlement, the tank was recorded in the name of the State. In 1942, the ex-ruler invited objections from the persons, who claimed the ownership over the same. Accordingly, Judhistir filed an objection claiming suit tank. Fishery Case No.73/50 was instituted. In 1951, the Government recognized fishery right of Judhistir and his successors. They had also paid the required money. Though they were in possession of the tank, but in the current settlement, the same was recorded in the name of the Government. Thereafter, the Municipality tried to lease out the land but the same was postponed due to objection of the plaintiffs. After issuance of notice under Sections 80 CPC and 349 of the Orissa Municipal Act to the defendants, they instituted the suit for declaration of right, title and interest and permanent injunction. 3. Pursuant to issuance of summons, the defendants entered appearance and filed a written statement denying the assertions made in the plaint. According to the defendants, neither Bhojaram excavated the suit tank nor he remained in possession over the same. Being a Gountia, he was in possession of the Bhogra land. In Bhogra conversion proceeding of 1958, the Bhogra land including suit tank vested in the Government. On 27.5.1962, the S.D.O., Bolangir transferred the suit tank to the Gram Panchayat. In the year 1968-69, the suit tank was transferred to the Municipality by the Government. Since then the Municipality is in possession of the same and maintained the suit tank. In Bhogra conversion proceeding of 1958, the Bhogra land including suit tank vested in the Government. On 27.5.1962, the S.D.O., Bolangir transferred the suit tank to the Gram Panchayat. In the year 1968-69, the suit tank was transferred to the Municipality by the Government. Since then the Municipality is in possession of the same and maintained the suit tank. The Municipality has right to lease out the tank for pisciculture. 4. On the, inter se, pleadings of the parties, the learned trial court struck ten issues, out of which issue nos.5,6 and 7 are pivotal. The same are quoted below; “5. Have the plaintiffs any manner of right, title and possession over the suit property ? 6. Is defendant no.1 the owner of the suit property ? 7. Is defendant no.2 in possession of the suit property since 1969 ?” 5. To substantiate the case, the plaintiffs had examined two witnesses and on their behalf, twelve documents had been exhibited. The defendants had examined one witness. 6. The learned trial court came to hold that the ROR of 1894 reveals the suit tank was recorded in the name of Bhojaram Gountia whereas in the current settlement, the same has been recorded in the name of the Government. The entry in the ROR neither creates title nor extinguishes title. The suit tank was excavated in the Bhogra land, which was a service tenure land. The Gountia enjoyed it as an agent of the State. There was no evidence that Bhojaram Gountia excavated the tank by spending money. In Bhogra conversion proceeding, all Bhogra lands were vested in the Government. Thus plaintiffs had no title over the same. It was further held that the plaintiffs have no title over the suit tank and accordingly answered issue no.5 against the plaintiffs. It further held that defendant no.1-State is the owner of the suit tank and accordingly answered issue no.6 in favour of defendant no.1. It further held that the fishery right of the family of the plaintiff was recognized by the Government in Fishery Case No.73/50. Held so, learned trial court decreed the suit in part declaring fishery right of the plaintiffs and restraining the defendants not to interfere with the possession of the plaintiffs. It further held that the fishery right of the family of the plaintiff was recognized by the Government in Fishery Case No.73/50. Held so, learned trial court decreed the suit in part declaring fishery right of the plaintiffs and restraining the defendants not to interfere with the possession of the plaintiffs. Aggrieved by and dissatisfied with the judgment and decree passed by the learned trial court, defendant no.1 filed Title Appeal No.80 of 1991 before the learned District Judge, Bolangir. Learned lower appellate court, on a thread-bare analysis of the evidence, both oral and documentary as well as pleadings, came to hold that in the petition dated 24.2.1942, vide Ext. 11, Judhistira Sai asserted that since the time of his grandfather his family developed and maintained the suit reservoir and as such, they acquired full title over it. Notwithstanding wrong recording of the land in favour of the Government, he had right to catch fish. On examination of the record of Fishery Case No.73 of 1950, the lower appellate court came to hold that Judhistira Sai filed another petition dated 14.3.1950, Ext.11/A, to waive the arrear land revenue or he might be allowed to pay the same by instalments. The order sheet did not reveal the plaintiffs’ fishery right over the tank. There was no order of issuance of patta. It negatived the fishery right of the plaintiffs over the suit tank. Held so, learned lower appellate court allowed the appeal. 7. The second appeal was admitted on Ground Nos.1 and 2 enumerated in the appeal memo. The same are quoted below; “1. Whether the impugned finding of the learned lower appellate court that the plaintiffs were not granted fishery right over the suit tank is perverse in view of documentary evidence led by the plaintiffs vide Exts.11, 12, 7, 7a and 7b which conclusively proves that fishery right was granted to the plaintiffs over the suit tank in Fishery Case No.73/50 ? 2. Whether in view of orders passed in Fishery Case No.73/50 vide Exts.12, granting patta in respect of fishery right of plaintiffs and in view of order under Exts.7, 7a, 7b, which shows that the amount was received towards fishery right, impugned finding that the fishery right was not exercised by the plaintiffs over the suit tank is perverse? 8. Heard Mr. Manoj Mishra, learned Senior Advocate along with Mr. 8. Heard Mr. Manoj Mishra, learned Senior Advocate along with Mr. P.K. Das, learned counsel for the appellants, Ms. S. Mishra, learned Addl. Standing Counsel for respondent no.1 and Mr. Baibaswata Panigrahi, learned counsel for the respondent no.2. 9. Mr. Mishra, learned Senior Advocate for the appellants, argued with vehemence that Bhojaram was the Gountia of village Behera Pali. He excavated the suit tank. Judhistir, grandson of Bhojaram became the Gountia of the village. He filed an application in Fishery Case No.73/50 before the S.D.O., Bolangir. The order was passed recognizing the fishery right in his favour, but no patta was issued. Judhistir had paid the necessary fees for the same. He was in possession of the suit tank notwithstanding the wrong recording of the land in favour of the Government and abolition of Gountia system. After Judhistir, the plaintiffs, who are the legal heirs and successors, are in possession of the same. Since the fishery right of the plaintiffs has been recognized by the State, the defendants can not interfere with the same. 10. Per contra, learned counsel for the respondents submitted that Gountia system in the State has been abolished. The suit tank, a big patch of land of an area Ac.22.558 dec, situates in Bolangir town. After abolition of Gountia system, the tank has been vested in the Government free from all encumbrances. No patta has been issued in favour of the plaintiffs. In the settlement record of right, the suit tank has been recorded in the name of the State of Orissa. The plaintiffs have no semblance of right, title and interest over the same. 11. The question does arise as to whether right to catch and carry away the fish is a profit or benefit arising out of land is immovable property within the meaning and ambit of the Transfer of Property Act, and its sale has to be by means of a registered instrument in case its value exceeds Rs.100/-. 12. Ananda Behera and another v. State of Orissa and another, AIR 1956 SC 17 is a locus classicus on the subject. The dispute pertained to fishery rights of the plaintiffs over a portion of Chilka lake. The estate was vested in the State of Orissa under the Orissa Estates Abolition Act. 12. Ananda Behera and another v. State of Orissa and another, AIR 1956 SC 17 is a locus classicus on the subject. The dispute pertained to fishery rights of the plaintiffs over a portion of Chilka lake. The estate was vested in the State of Orissa under the Orissa Estates Abolition Act. Long before vesting of the estate, the petitioners had entered into contracts with the ex proprietor Raja of Parikud and had obtained from the latter, on payment of heavy sums, licences for catching and appropriating all the fish from the fisheries detailed in the schedule of the petition. The State of Orissa refused to recognise the licenses and were about to re-auction the rights. At this juncture, the petitioner had approached the apex Court under Article 32 of the Constitution of India on the ground that their fundamental rights enshrined under Articles 19(1)(f) and 31(I) were infringed. The question arose before the apex Court as to whether the petitioners had acquired any rights or interests in "property" by their several "purchases". The Constitution Bench of the apex Court held that the lake is immoveable property. After promulgation of the Orissa Estate Abolition Act, it vested in the State of Orissa. Right to catch and carry away fish in specific sections of the lake over a specified future period amounts to licence to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a ‘profit a prendre’ which has been regarded as a benefit that arises out of the land and, as such, is immoveable property. If ‘profit a prendre’ is regarded as tangible immoveable property and the property value is more than Rs.100/-it requires registration under Section 54 of the Transfer of Property Act. The same view was followed in the Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh and others, AIR 1977 SC 2149 . The apex Court in uncertain terms held that the right to catch and carry away the fish being a 'profit a prendre' i.e. a profit or benefit arising out of the land, it has to be regarded as immovable property within the meaning of the Transfer of Property Act, read in the light of Section 3 (26) of the General Clauses Act. If a 'profit a prendre' is tangible immovable property, its sale has to be by means of a registered instrument in case its value exceeds Rs.100/-because of Section 54 of the Transfer of Property Act. If it is intangible, its sale is required to be effected by a registered instrument whatever its value. Therefore, in either of the two situations, the grant of the 'profit a prendre' has to be by means of a registered instrument. Accordingly, the transaction of sale of the right to catch and carry away the fish if not effected by means of a registered instrument would pass no title or interest. 13. The dispute pertains to a big tank having an area of Ac.22.558 dec. of Bolangir town. The value of the property, by no stretch of imagination, is less than Rs.100/-. Admittedly, no lease was granted in favour of the ancestor of the plaintiffs by the ex-landlord. The suit tank was excavated in the Bhogra land, which was a service tenure land. The ancestor of the plaintiffs was Gountia of village Behera Pali. After abolition of Gountia system, the land had been vested in the State free from all encumbrances. Learned trial court held that the plaintiffs have no semblance of right and interest over the same. But then, it travelled beyond its jurisdiction and recognized fishery right of the plaintiffs on untenable and unsupportable grounds. In the absence of any registered document, the lower appellate court has rightly upset the judgment and decree of the learned trial court. The substantial questions of law are accordingly answered. 14. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.