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2017 DIGILAW 338 (ORI)

Sebati Sahu v. State of Orissa

2017-03-29

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This is plaintiff’s appeal against a confirming judgment. 2. The dispute pertains to an area of Ac.1.846 dec. appertaining to 4th settlement plot Nos.356, 357 and 358 corresponding to Plot No.367 of the 3rd settlement and Plot No.299 of 2nd settlement of Mouza Sonepur town commonly known as “Teli Bandh”. 3. The case of the plaintiff is that Bhaga Teli @ Sahu was the ancestor of the plaintiff. For facilitating irrigation to his rayati land, Bhaga Teli had excavated the tank over the suit land. The suit property situates in the outskirt of the Sonepur town and was surrounded by bushy jungle. The rayati land of the plaintiff adjoins to the suit land. Due to passage of time, a substantial portion of the suit plot has been converted to paddy field. Bhaga Teli was in exclusive possession over the suit land till his death. After him, his successor was remaining in possession. The plaintiff with her sons and daughters are in physical possession over the suit property. In the 4th settlement, the suit land has been wrongly recorded in the name of Sonepur Municipality. During Ex-State regime, the excavation of tank in question was recorded in the revenue record and the name of Bhaga Teli was reflected. Defendants have no semblance of right, title and interest over the same. With this scenario, the suit has been filed for declaration of right, title and interest, confirmation of possession and in the alternative for recovery of possession, if it is found that the plaintiff is not in possession over the suit land. 4. Pursuant to issuance of summons, defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The case of the defendants is that the tank in question is the rayati land of the plaintiff. The State of Orissa is the owner of Plot No. 356, Khata No. 4 measuring Ac.0.720 dec. and Sonepur Municipality is the owner and recorded tenant of Plot Nos.357 and 358, Khata No.10 of 4th Settlement. Bhaga Teli had not excavated the tank over the suit property. There was no such irrigation facility to the plaintiff’s land from the suit land. The suit property situates inside busy locality surrounded by Gridco colony, private residential houses, law college. Their lands and houses were adjacent to the suit land. It is situated within the Municipality area. Bhaga Teli had not excavated the tank over the suit property. There was no such irrigation facility to the plaintiff’s land from the suit land. The suit property situates inside busy locality surrounded by Gridco colony, private residential houses, law college. Their lands and houses were adjacent to the suit land. It is situated within the Municipality area. The suit land is not exclusive property of the plaintiff. Sonepur Municipality is the rightful owner of the suit tank and accordingly settlement authority has prepared the record-of-right of Plot No.356 in favour of the State of Orissa and Plot Nos.357 and 358 of Khata No.10 in favour of Sonepur Municipality. From time to time Municipality used to lease out the suit tank for pisciculture purpose. The same was leased out to the President, Fishermen Cooperative Society, Sonepur from 1992-93 to 1994-95. At present, the land is in possession of the State Government and the tank and its edge is in exclusive possession of the Municipality. After settlement, the husband of the plaintiff along with others had instituted T.S. No.51 of 1975 against the State of Orissa before the Munsif, Sonepur for declaration of right, title and interest and possession. The suit schedule land was not a part of the said suit. Had there been a right of the plaintiff over the same, her husband could have instituted the suit. The plaintiff has no manner of right, title and interest over the suit property. 5. Stemming on the pleadings of the parties, the learned trial court struck six issues, out of which issue no.3 is pivotal, which is quoted hereunder; “3. Has the plaintiff got right, title and possession over the suit properties ?” 6. To substantiate the case, the plaintiff had examined two witnesses and on her behalf, six documents had been exhibited. The defendants had examined two witnesses and on their behalf, eleven documents had been exhibited. The plaintiff herself had not been examined in the case. Her son had been examined as P.W.1. According to him, neither plaintiff nor her ancestor had paid revenue to the State Government. He admits that the suit property was recorded in the name of the State Government in the 3rd settlement. The plaintiff herself had not been examined in the case. Her son had been examined as P.W.1. According to him, neither plaintiff nor her ancestor had paid revenue to the State Government. He admits that the suit property was recorded in the name of the State Government in the 3rd settlement. Learned trial court, on a thread-bare analysis of the evidence, both oral and documentary as well as pleadings, came to hold that P.W.2 has stated that he has not seen excavation of the suit tank. He could not say whether the suit land is the Government land or private land. He did not know khata number and plot number or even its area. It further held that the State Government is the recorded owner of Plot No.356 and Sonepur Municipality is the recorded owner of suit Plot Nos.357 and 358, i.e., the suit tank and its ridge. Sonepur Municipality used to lease out the suit tank since long. Relying upon Exts. E and F, it held that defendant no.5 had taken lease of the suit tank from the Municipality in the year 1997. It negatived the plea of the plaintiff that the ancestors of the plaintiff were the exclusive owner and possession of the suit land. The suit was dismissed. Unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned Addl. District Judge, Sonepur in RFA No.61 of 2005, which was eventually dismissed. 7. The second appeal was admitted on the following substantial question of law; “Whether in view of Section 42 (kha) of Sonepur Bhumi Bidhi as prevailing in the Ex-state of Sonepur in 1925, the learned Courts below ought to have held that the ancestors of the plaintiff are the exclusive owners in possession of the suit tank and the law as amended in 1939 are not application to the present case ? 8. Heard Mr. Budhiram Das on behalf of Mr. N.C. Pati, learned counsel for the appellant and Mr. P.C. Panda, learned Addl. Government Advocate for the respondents. 9. Mr. Das, learned counsel for the appellant, submitted that Bhaga Teli was the ancestor of the plaintiff. He excavated the tank over the suit land for irrigation purpose. In view of Section 42 (kha) of Sonepur Bhumi Bidhi, the courts below ought to have decreed the suit. 10. Per contra, Mr. Panda, learned Addl. Government Advocate for the respondents. 9. Mr. Das, learned counsel for the appellant, submitted that Bhaga Teli was the ancestor of the plaintiff. He excavated the tank over the suit land for irrigation purpose. In view of Section 42 (kha) of Sonepur Bhumi Bidhi, the courts below ought to have decreed the suit. 10. Per contra, Mr. Panda, learned Addl. Government Advocate, submitted that the State of Orissa is the owner of Plot No. 356, Khata No.4 measuring Ac.0.720 dec. and Sonepur Municipality is the owner of Plot Nos. 357 and 358, Khata No.10 of 4th Settlement. The plaintiff has no semblance of right, title and interest over the suit property. The suit property situates in the heart of Sonepur town. 11. Section 42 (kha) of Sonepur Bhumi Bidhi, which is the hub of the issue, is quoted below; “42(kha) The person who has excavated the reservoir and the person who is in possession of the land are deemed to have right on all other reservoirs. The water and fish of those are to be enjoyed as usual as before. In many cases water from the excavated reservoir made by the village possessor or other persons is also taken by all or some of the villagers to their respective fields. In such cases the prevailing codes of rules/regulations will remain unchanged. If any sort of dispute arises in any case, the village panchayats will solve the matter according to the local procedure or codes. However, the party who is aggrieved by the decision can take assistance of the State Government.” 12. On a conspectus of Section 42 (kha) of Sonepur Bhumi Bidhi, it is evident that the person who has excavated the reservoir and the person who is in possession of the land are deemed to have right on all other reservoirs. There is neither any pleading nor evidence when Bhaga Teli had excavated the tank. On an anatomy of pleadings and evidence on record, both oral and documentary, both the courts held that the State Government is the recorded owner of Plot No.356 and Sonepur Municipality is the recorded owner of suit Plot Nos.357 and 358, i.e., the suit tank and its ridge. Sonepur Municipality used to lease out the suit tank since long. It was further held that defendant no.5 had taken lease of the suit tank from the Municipality in the year 1997. Sonepur Municipality used to lease out the suit tank since long. It was further held that defendant no.5 had taken lease of the suit tank from the Municipality in the year 1997. Both the courts below negatived the plea of the plaintiff that the ancestors of the plaintiff were the exclusive owner and possession of the suit land. The suit land situates in the busy locality of Sonepur town. There is no perversity or illegality in the findings of the courts below. Relying on the remarks column of the ROR, the suit was instituted. It is trite that the settlement record of right neither creates title nor extinguishes title. The substantial question of law is answered accordingly. 13. 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.