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2017 DIGILAW 493 (ORI)

Sivala Mohan Rao v. State of Orissa

2017-05-01

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This appeal is by the plaintiff. 2. The case of the plaintiff is that the suit schedule property originally belonged to Sri. Krushna Chandra Gajapathi Narayan Deo, the then Maharaja of Parlakhemundi. He was in possession of the same. He alienated the same to one Bhimo Syamalo on 12.12.1963. Thereafter Bhimo Syamalo sold the same to his father on 7.6.1967 by means of a registered sale deed for a valid consideration. The father of the plaintiff was in possession of the suit land till his death. Thereafter, he is in possession of the same to the knowledge of the defendant. The plaintiff and his brother filed mutation case no.38/91 before the Tahasildar, Parlakhemundi, but the same was rejected on the ground that the suit land stood recorded as Anabadi. He was not aware of the settlement proceeding. The entry made by the settlement authorities is wrong. The defendant had recognised the plaintiff as the owner of the suit land and sought permission for holding different Government function on the suit land. But the defendant, who has no semblance of right, title and interest over the suit land, had proposed to construct boundary wall to use the same as play ground. The defendant tried to dispossess the plaintiff from the suit land. Hence he instituted the suit with the aforesaid reliefs. 3. Pursuant to issuance of summons, the defendant entered appearance and filed written statement denying the assertions made in the plaint. The case of the defendant is that the vendor had no title over the suit land. The suit land was originally a part of the estate of Parlakhemundi Zamindari recorded in the name of Maharaja of Parlakhemundi. The estate vested in the State after coming into force the Orissa Estate Abolition Act (in short, ‘O.E.A. Act’). The suit land has been recorded in plot no.145 and 147 and classified as Patita in the Anabadi Khata. The same had been recorded showing one Ganesh Chandra Mishra, Tulasi Samal, Lingaraj Patra and Banamali Jena as encroachers. Encroachment case no.367/87-88 was initiated and eviction order was passed. Since then, the defendant was in possession of the suit land and using the same for Government functions. The suit land had been transferred to the Sports and Tourism Department for construction of Stadium in Lease Case No.14/90. Encroachment case no.367/87-88 was initiated and eviction order was passed. Since then, the defendant was in possession of the suit land and using the same for Government functions. The suit land had been transferred to the Sports and Tourism Department for construction of Stadium in Lease Case No.14/90. The plaintiff had no semblance right, title and interest over the suit land. 4. On the interse pleadings of the parties, learned trial court struck eight issues. To substantiate the case, the plaintiff had examined one witness and on his behalf six documents had been exhibited. On behalf of the defendants, one witness had been examined and two documents had been exhibited. 5. Learned trial court came to hold that the suit land is the estate property of ex-Maharaja and the same vested in the State after the O.E.A. Act came into force. The land was purchased by Bhimo Syamalo from the ex-Maharaja after the same was vested in the State. The Maharaja had no right to transfer the land, since he had no title over the same. Bhimo Syamalo had not acquired any title and consequently he had no right to transfer the land to the father of the plaintiff. The plaintiff’s father had no right or title over the land and as such the plaintiff had no title over the land. The plaintiff is not in possession over the land in question. The alleged transaction is not valid. The plaintiff had not acquired any title. The unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned Addl. District Judge, Gajapati, Parlakhemundi in Title Appeal No.7 of 1995, which was eventually dismissed. 6. The second appeal was admitted on the substantial questions of law as enumerated in ground nos. A, B, C and D of the memorandum of appeal. The unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned Addl. District Judge, Gajapati, Parlakhemundi in Title Appeal No.7 of 1995, which was eventually dismissed. 6. The second appeal was admitted on the substantial questions of law as enumerated in ground nos. A, B, C and D of the memorandum of appeal. The same are: “(A) In view of the admitted fact that in Ext.5, the Dewans of Paralakhemundi Samasthan, after vesting of the estate, submitted the list of private lands of Maharaja which includes the suit land under serial no.21 showing it to be in Khas possession of the Maharaja and in Ext.6, claim being made by Maharaja for settlement of fair and equitable rent, whether the learned courts below are justified in holding that the suit land does not come within the category of Raiyat land though it was in the Khas possession according to Sec.5(3) of Orissa Tenancy Act, 1913 ? (B) In view of the doming provisions of Section 6, 7 and 8-A of O.E.A. Act, as the Maharaja of Paralakhemundi was in Khas possession of the suit land, he being deemed to have been the occupancy rayait, whether the learned courts below are justified in holding that the Maharaja of Paralakhemundi cannot be said to be a Rayait in respect of the suit land ? (C) There being provision under O.E.A. Act either for deeming the occupant intermediary as the Rayait or to recognize the tenancy of persons under the intermediary, whether the learned courts below are justified in holding that, if would difficult to say that the suit land is exempted from vesting under the O.E.A. Act ? (D) In view of the fact that the suit land was in Khas possession of Maharaja of Paralakhemundi at the time of vesting and necessary application was made for fixation of fair rent, whether the learned courts below are justified in holding that the transaction made thereafter by the Maharaja or his purchaser are not valid ?” 7. Heard Mr. C.A. Rao, learned Senior Advocate along with Mr. S.K. Behera, learned counsel for the appellant and Mr. P.C. Panda, learned Additional Government Advocate along with Miss Samapika Mishra, learned Additional Standing Counsel for the respondent. 8. Mr. Rao, learned Senior Advocate for the appellant submitted that suit property originally belonged to Sri. Heard Mr. C.A. Rao, learned Senior Advocate along with Mr. S.K. Behera, learned counsel for the appellant and Mr. P.C. Panda, learned Additional Government Advocate along with Miss Samapika Mishra, learned Additional Standing Counsel for the respondent. 8. Mr. Rao, learned Senior Advocate for the appellant submitted that suit property originally belonged to Sri. Krushna Chandra Gajapathi Narayan Deo, the then Maharaja of Parlakhemundi. He was in khas possession of the same. He sold the same to one Bhimo Syamalo by means of a registered sale deed dated 12.12.1963 for a valid consideration. Bhimo Syamalo sold the suit land to the father of the plaintiff by means of a registered sale deed dated 7.6.1967 for a valid consideration and delivered possession. The father of the plaintiff was in possession of the suit land. After him, the plaintiff had exercised any right or possession over the same. The sabik ROR stood recorded in the name of the ex-landlord. The plaintiff and his brothers filed mutation case to mutate the land in their favour. But then, the same was dismissed on the ground that the land has been recorded as Patita Kisam (Anabadi) in the ROR. The plaintiff came to know that the suit property has been recorded in the name of the Government. The settlement record of right neither creates title nor extinguishes title. He further contended that after coming into force of the O.E.A. Act, the estate of Maharaja vested in the State. In O.E.A. Case No.2/59, the O.E.A. Collector, Parlakhemundi assessed rent of the private lands of Maharaja of Parlakhemundi including the suit schedule land on 28.10.59. Notice under Form-J was issued for publication by beat of drums and affixture in a conspicuous place of the village and in the notice board of the Tahasil office inviting objection. In Form ‘J’, objection was invited with regard to the suit land along with other lands. In O.E.A. Case No.357/68, the Dewan Parlakhemundi filed a petition before the Tahasildar, Parlakhemundi with regard to the private lands which were in khas possession of Maharaja on 19.7.54 vide Ext.5. In the statement showing the private lands, the suit schedule land finds place. Further in O.E.A. Case No.2/59, an objection was filed by the ex-Maharaja under Sec.9(2) of the O.E.A. Act stating therein that the land is liable for assessment. In the statement showing the private lands, the suit schedule land finds place. Further in O.E.A. Case No.2/59, an objection was filed by the ex-Maharaja under Sec.9(2) of the O.E.A. Act stating therein that the land is liable for assessment. The same had been wrongly treated as Guest House in the rent roll approved by the Collector. Thus, the suit land was in khas possession of ex-Maharaja. In view of sub-Sec.(1) of Sec.6 of the O.E.A. Act, the suit property shall be deemed to have been settled by the ex-intermediary in favour of ex-Maharaja on raiyati basis. For his legal necessity, he sold the same to the vendor of the plaintiff’s father. The defendant has no semblance right, title and interest over the same. He relied on the decision of this Court in the case of Bhagaban Rath vs. Ananda Das, ILR 1968 Cuttack 745. 9. Per contra, Mr. Panda, learned Additional Government Advocate as well as Miss. Mishra, learned Additional Standing Counsel for the respondents submitted that suit land originally belonged to estate of Parlakhemundi. The same vested in the State free from all encumbrances after coming into force of O.E.A. Act. The lands which were in khas possession of Maharaja were settled in his favour under Secs.6 and 7 of the O.E.A. Act. The suit land was not settled in his favour. Thus Maharaja has no title over the suit land. Any alienation made by him is void and will not confer any title on the subsequent transferee. 10. It is not disputed at the Bar that after promulgation of O.E.A. Act, the estate vested in the State. The question does arise as to whether the suit schedule land was settled in favour of ex-landlord. Reliance placed on the order dated 28.10.1959 in O.E.A. Case No.2/59, Ext.4, application of the Dewan Parlakhemundi before the O.E.A. Collector, Ext.5, objection filed by ex-Maharaja and form ‘J’, Ext.6 by Mr. Rao, learned Senior Advocate for the appellant is totally misplaced. After Rule 8-A was inserted to O.E.A. Rule by way of amendment, by order dated 28.10.59, Ext.4, the O.E.A. Collector directed issuance of notice in form ‘J’ inviting objection in O.E.A. Case No.2/59. In O.E.A. Case No.357/68, the Dewan Parlakhemundi submitted the list of lands in the khas possession of the ex-landlord, vide Ext.5. The suit land finds place in the said list. In O.E.A. Case No.357/68, the Dewan Parlakhemundi submitted the list of lands in the khas possession of the ex-landlord, vide Ext.5. The suit land finds place in the said list. The suit land finds place in the form ‘J’. But no order of settlement of the suit land by the O.E.A. Collector has been passed. There is also no pleading to that effect. Thus the irresistible conclusion is that the suit land vested in the State free from all encumbrances. The same was not settled in favour of the ex-landlord. The ex-landlord had no title over the same. Any alienation made by the ex-landlord in favour of Bhimo Syamalo will not confer any title to him. Thus, the plaintiff cannot derive any title on the basis of the said transaction. 11. Reliance placed on the case of Bhagaban Rath (supra) is totally misplaced. This Court had the occasion to interpret Sec.5(a) and Sec.6(1) of the O.E.A. Act. This Court held that Sec.5(a) lays down that the entire estate including various subject-matters dealt with therein shall vest absolutely in the State Government free from all encumbrances, and such intermediary shall cease to have any interest in such estate other than the interest expressly saved by or under the provisions of the Act. It would thus be clear that whatever interest has been expressly saved did not vest in the State. Section 6(1) deals with the homesteads of intermediaries and buildings together with lands on which such buildings stand in the possession of intermediaries and used as golas, factories or mills to be retained by them on payment of rent. Section 6(1) thus saves the properties mentioned therein from vesting in the State and they shall be deemed to be settled by the State Government with such intermediary. The process of vesting and saving operates simultaneously. The properties so saved continue to be the properties of the ex-intermediaries without the title being in any way extinguished at any time subject to payment of fair and equitable rent. 12. The process of vesting and saving operates simultaneously. The properties so saved continue to be the properties of the ex-intermediaries without the title being in any way extinguished at any time subject to payment of fair and equitable rent. 12. Sec.6(1) of the O.E.A. Act provides that with effect from the date of vesting, all homesteads comprised in an estate and being in the possession of an intermediary on the date of such vesting, and such buildings or structures together with the lands on which they stand, other than any buildings used primarily as offices or Kutcheries or rest houses for estate servants on duty as were in the possession of an intermediary at the commencement of the O.E.A. Act and used as golas (other than golas used primarily for storing rent in kind), factories or mills for the purpose of trade, manufacture or commence, or used for storing grains or keeping cattle or implements for the purpose of agriculture and constructed or established and used for the aforesaid purpose before the 1st day of January, 1946, shall, notwithstanding contained in this Act, be deemed to be settled by the Government with such intermediary and with all the share-holders owning the estate, who shall be entitled to retain possession of such homesteads and of such buildings or structures together with the lands on which they stand, as tenants under the State Government subject to the payment of such fair and equitable ground-rent as may be determined by the Collector in the prescribed manner. The suit schedule land is not in the category mentioned in Sec.6(1) of the O.E.A. Act. The substantial questions of law are answered accordingly. 13. Resultantly, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.