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2017 DIGILAW 591 (ORI)

Satha Kumar Das v. State of Orissa

2017-05-17

A.K.RATH

body2017
JUDGMENT : Dr. A.K.RATH, J. 1. Plaintiff is the appellant against a confirming judgment in a suit for correction of Major Settlement Record of Right. 2. The case of the plaintiff is that one Suresh Chandra Fullonton was the recorded owner of the suit land. He purchased the same from Suresh Chandra Fullonton by means of a registered sale deed dated 18.3.1975. He used to pay rent to the Government. During Major Settlement operation, the suit land was wrongly recorded as “Abadajogya Anabadi” with his note of possession. He could not take steps before the Settlement Authorities for recording of the land in his favour. He is in possession of the land. With this factual scenario, he instituted O.S.No.64 of 1991 in the court of learned Sub-Judge, Balasore, which was transferred to the court of the learned Additional Civil Judge (Sr. Division), Balasore and renumbered as T.S.No.66 of 1995-I/64 of 1991 seeking the relief mentioned supra. 3. Pursuant to issuance of summons, the defendant entered appearance and filed written statement denying the assertions made in the plaint. The specific case of the defendants is that the suit land is a Government land. The plaintiff has no right, title and interest over the same. The vendor of the plaintiff has no title over the suit property and, as such, sale is illegal. 4. On the inter se pleadings of the parties, the learned trial court framed seven issues. To prove the case, the plaintiff had examined two witnesses and on his behalf, nine documents had been exhibited. Neither the defendant had examined any witness nor any document was exhibited on its behalf. The learned trial court held that no document was filed by the plaintiff to establish his vendor’s title. With regard to the rent receipts, vide Exts. 1 to 4, it held that the same cannot confer title. The tenancy ledger has not been proved by the plaintiff. Held so, it dismissed the suit. The unsuccessful plaintiff challenged the same before the learned District Judge, Balasore-Bhadrak in S.J.Appeal No.52 of 1996-I, which was eventually dismissed. 5. The Second Appeal was admitted on 15.2.1999 on the following substantial questions of law enumerated in ground nos. The tenancy ledger has not been proved by the plaintiff. Held so, it dismissed the suit. The unsuccessful plaintiff challenged the same before the learned District Judge, Balasore-Bhadrak in S.J.Appeal No.52 of 1996-I, which was eventually dismissed. 5. The Second Appeal was admitted on 15.2.1999 on the following substantial questions of law enumerated in ground nos. A, B & E. “A. Whether the learned Courts below committed serious error of law and procedure in not taking into consideration the fact that the Zamanbandi had been prepared in favour of Suresh Ch.Kulonton and after purchase of the same suit land, the same was mutated in the name of the plaintiff and the plaintiff had been paying rent to the State Govt. B. Whether the learned Courts below committed serious error of law in not considering the series of documentary evidence particularly Ext.9, the information sheet from which it is clear that the tenant Ledger had been prepared in favour of the appellant after the purchase of the suit land. E. Whether the learned Courts below are correct in dismissing the plaintiff’s suit even though the Defendant/State Government has not adduced any evidence in establishing their sources of title, particularly because the settlement record of right does not extinguish the title.” 6. Heard Mr. Mr.Soubhagya Kumar Samal, Advocate on behalf of Mr.B.Routray, Sr. Advocate for the appellant and Mr.P.C.Panda, learned Additional Government Advocate. 7. Mr.Samal, learned Advocate for the appellant submitted that the suit land originally belonged to ex-intermediary. He executed an Amalnama Patta in favour of Suresh Chandra Fullonton. Suresh Chandra Fullonton was paying rent to the State. To press his legal necessity, Suresh Chandra Fullonton alienated the land in favour of the plaintiff by means of a registered sale deed dated 18.3.1975. The plaintiff is in possession of the suit land. The record of right was prepared wrongly in favour of the State. Thus, the plaintiff instituted the suit for correction of record of right. He further submitted that the learned courts below committed a serious illegality in not taking into consideration of the fact that the zamanbandi had been prepared in favour of Suresh Chandra Fullonton. After purchase of the land, the plaintiff filed an application for mutation of the same. The land was mutated in his favour. The plaintiff was paying rent, vide Exts.1 to 4 and 6 series. After purchase of the land, the plaintiff filed an application for mutation of the same. The land was mutated in his favour. The plaintiff was paying rent, vide Exts.1 to 4 and 6 series. From the same, it is clear that tenancy ledger was prepared in favour of the plaintiff. Though no evidence was adduced by the defendant but the learned courts below committed an illegality in dismissing the suit. 8. Mr.Panda, learned Additional Government Advocate for the respondent submitted that the vendor of the plaintiff has no title over the land. The suit land is a Government land. Thus any alienation will not confer title on the plaintiff. He further submitted that there is no pleadings or evidence on record that the vendor of the plaintiff was a tenant under the ex-intermediary. The land vested in the State free from all encumbrances. No ekpadia was submitted by ex-intermediary. A simple suit for correction of Major Settlement Record of Right is not maintainable. 9. The plaintiff was examined as P.W.1. He has deposed that the ex-intermediary has executed Amalnama Patta in favour of Suresh Chandra Fullonton. There is no material on record that the exintermediary had leased out the land in favour of Suresh Chandra Fullonton. The learned appellate court held that the rent receipts vide Exts.1 and 2 purported to have been granted by ex-intermediary do not have any evidentiary value since the same are beyond pleadings. The rent receipts vide Exts.3 and 4 relate to the year 1973 and 1974. The same were purported to have been granted to Suresh Chandra Fullonton in respect of Ac.1.54 dec. of land. The plaintiff claims that he has purchased Ac.1.54 dec. of land out of Ac.4.38 dec. from the southern side. There was no scope for him to pay rent for Ac.1.54 dec. only. The rent receipts have been mechanically granted. With regard to other rent receipts, it held that the same do not relate to the suit land. The suit land admittedly belonged to ex-intermediary. After coming into operation of the Orissa Estates Abolition Act, the land vested in the State free from all encumbrances. No ekpadia was submitted by ex-intermediary in favour of any person. The suit land was recorded as Abadjogya Anabadi. In view of the same, the learned courts below rightly held that Suresh Chandra Fullonton had no title over the suit land. No ekpadia was submitted by ex-intermediary in favour of any person. The suit land was recorded as Abadjogya Anabadi. In view of the same, the learned courts below rightly held that Suresh Chandra Fullonton had no title over the suit land. Reliance placed under Ext.9 is totally misplaced. Ext.9 is the application filed by the Gunanidhi Swain on 27.3.1996 for supply of information with regard to plot index of M.S.Plot No.1884 of Mouza-Kalika, P.S.Raibania. the O.I.C., District Record Room, Collectorate, Balasore supplied the plot index. By no stretch of imagination, it can be said that the tenancy ledger was opened in favour of the appellant. 10. The matter may be examined from another angle. The title of the plaintiff is under cloud of suspicion. In Anathula Sudhakar Vrs. P. Buchi Reddy (Dead) by L.Rs. and others, AIR 2008 SC 2033 , the apex Court held that where a cloud raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Thus the simple suit for correction of R.O.R. is not maintainable. The substantial questions of law are answered accordingly. 11. In the wake of aforesaid, the appeal, sans any merit, deserves dismissal. Accordingly, the same is dismissed. No Costs.