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2017 DIGILAW 905 (ORI)

D. Narayanamma v. State of Orissa

2017-08-21

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against a reversing judgment in a suit for declaration of right, title and interest and permanent injunction, in alternative for a direction to the defendants to settle the land in her favour. 2. The case of the plaintiff is that the suit land originally belonged to one Ananta Satapathy. Her father purchased the same by means of a registered sale deed on 8.1.1941. The suit land being a rayati land, her father acquired occupancy right over the same by virtue of the Madras Estate Land Act. During settlement operation of the year 1954-55, the settlement staffs illegally omitted to record the land in the name of her father. But then her father, who was in possession of the land, used to pay rent to the Maharaja of Jeypore. Her father died in the year 1958. She succeeded to the properties. While the matter stood thus, the Tahasildar, Jeypore initiated Encroachment Case No.2103 of 1991 against her on the ground that the suit land had been recorded as “Patita” in the record of right. She appeared in the case and contended that the suit land was a rayati land, but order of eviction was passed. She filed O.P.L.E. Appeal No.1 of 1992 before the Sub-Divisional Officer, Jeypore. The appeal was dismissed. Thereafter the Tahasildar, Jeypore issued notice to her to vacate the land. It is further pleaded that the suit land being a rayati land, the same had not been vested in the Government. Thus, initiation of proceeding under the OPLE Act was without jurisdiction. With this factual scenario, she instituted the suit after issuing notice under Sec.80 C.P.C. 3. Pursuant to issuance of summons, the defendant nos.2 to 4 filed written statement denying the assertions made in the plaint. It is pleaded that the registered sale deed no.19/1941 does not cover suit plot no.265. It was never a rayati land of the father of the plaintiff. They had not acquired occupancy right over it. The kissam of the land was ‘Patita’. The same was recorded in the name of the Government of Orissa in the ROR. As the plaintiff encroached upon Ac.1.20 cents of land, O.P.L.E. Case No.3103/91 was initiated against her. Order of eviction was passed and penalty of Rs.363.70 was imposed on her. She preferred OPLE Appeal No.1/92 before the S.D.O., Jeypore and lost. The same was recorded in the name of the Government of Orissa in the ROR. As the plaintiff encroached upon Ac.1.20 cents of land, O.P.L.E. Case No.3103/91 was initiated against her. Order of eviction was passed and penalty of Rs.363.70 was imposed on her. She preferred OPLE Appeal No.1/92 before the S.D.O., Jeypore and lost. After disposal of the appeal, she deposited Rs.406.30 towards penalty with interest. She had not preferred any revision against the said appeal. The suit is not maintainable under Sec.16 of the OPLE Act. 4. Stemming on the pleadings of the parties, learned trial court struck seven issues. Both the parties led evidence, oral and documentary, in support of their cases. Learned trial court came to hold that prior to estate abolition, the family of the plaintiff was in possession of the suit land since 1941. The plaintiff has right, title and interest over the suit land. Held so, it decreed the suit. Felt aggrieved, the defendants filed appeal before the learned District Judge, Jeypore, which was subsequently transferred to the court of the learned Adhoc Additional District Judge, Jeypore and renumbered as T.A. No.17 of 2001. 5. Learned appellate court came to hold that there is no trustworthy evidence that the land described in the sale deed, Ext.1 and Ext.1/a corresponds to the suit plot no.265. The sale deed was executed on 8.1.1941. The land vested in the State on 31.12.1952. The father of the plaintiff was not in possession of the land for 12 years prior to vesting. Thus he was not a rayat. The record of right had been published in the name of the State in the year 1958. Thus the presumption arises that the State was the owner of the land. It further held that in paragraph 6(a) of the plaint, the plaintiff had taken a stand that in view of Sec.4(b) of the Orissa Government Land Settlement Act, 1962 which provides settlement of Anabadi land, the land ought to have settled in the name of the plaintiff. The plaintiff admitted that the suit land is a Government land. It negatived the plea of the plaintiff that notwithstanding vesting of the land in the State under the provisions of O.E.A. Act and wrong recording of the land in the ROR, the occupancy right of the plaintiff has not been affected. It further held that the plaintiff was not a rayat. It negatived the plea of the plaintiff that notwithstanding vesting of the land in the State under the provisions of O.E.A. Act and wrong recording of the land in the ROR, the occupancy right of the plaintiff has not been affected. It further held that the plaintiff was not a rayat. Held so, it allowed the appeal. 6. The second appeal was admitted on the substantial questions of law enumerated in ground nos.A and B of the appeal memo. The same are: “A. When the father of the appellant has not been evicted from the suit land following the provisions of the Act i.e. Section 163-A of the Madras Estate Land Act and when the settled legal position is that the Revenue Authorities have no right to evict a person when the title of the Government is disputed, whether the findings of the learned lower appellate court that appellant has got no right, title, or interest over the suit property and her father were not in possession of the suit property are sustainable ? B. Whether finding of the learned lower appellate court that father of the appellant was not a ryot is sustainable when the settled legal position is that cultivable land is “Ryoti Land” within the meaning of Section 3(16) of the Madras Estate Act and father of the appellant was in possession for 12 years i.e. since 1941 till the abolition of the estate on 29.12.52 and thereafter continued to own and possess the suit land till his death and thereafter the appellant as well, thereby perfected her title as “Ryot” by adverse possession on the principle “possession follows title” and as per the meaning of Section 3(15) of the Madras Estate Act ?” 7. Mr. P.K. Das, learned counsel for the appellant contended that the suit land originally belonged to Ananta Satapathy. The father of the plaintiff purchased the same by means of a registered sale deed on 8.1.1941. The plaintiff is a pardanasini lady. She could not take steps to record the land in her favour during settlement operation. The record of right neither creates title nor extinguishes title. The father of the plaintiff was a rayat. Thus initiation of case under the OPLE Act, so also the orders passed by the authorities are bad in law. The father of the plaintiff was in possession of the land. The record of right neither creates title nor extinguishes title. The father of the plaintiff was a rayat. Thus initiation of case under the OPLE Act, so also the orders passed by the authorities are bad in law. The father of the plaintiff was in possession of the land. Thereafter the plaintiff is in possession of the land. In view of the same, the land ought to be settled in her favour under the Orissa Government Land Settlement Act. 8. Per contra, Mr. S. Mishra, learned Additional Standing Counsel for the respondents submitted that there is no description of the suit schedule land in the sale deed, Ext.1. In the settlement, the land was recorded in the name of the State. The Tahasildar, Jeypore initiated Encroachment Case No.2103 of 1991. Order of eviction was passed after affording opportunity of hearing to the plaintiff. The appeal filed by the plaintiff against the State was dismissed. There is no pleading that the plaintiff was a rayat. He further contended that in paragraph 6(a) of the plaint, the plaintiff stated that the order of eviction passed by the Tahasildar, Jeypore is illegal in view of Sec.4(b) of the Orissa Government Land Settlement Act, 1962 which provides settlement of land in case any person is in possession of Anabadi land. She alternatively prayed to settle the land in her favour. Thus the plaintiff is not a rayat. 9. The rival contention made at the Bar requires consideration. The sale deed executed by Ananta Satapathy in favour of the father of the plaintiff had been marked as Ext.1. Since the sale deed was in Telugu, the same was translated in English by an Advocate and marked as Ext.1/a. Learned Advocate, who was translated the sale deed, had also been examined as a witness. The schedule of the land has been described in the sale deed as follows:- “III. SCHEDULE:-Agricultural lands situated at village Dhubuli, P.S./P.O./Sub-Registrar Jeypore, Koraput district and to hand over 15 putties of paddy to Jeypore Samasthanam for every one year and the cist payable at Rs.1-3-10 towards land revenue and the land is of 5 putties of seedling capacity with 3 crops for every year both wet and dry lands and bounded on four sides as follows:- East :-Dongor lands of Kuppili Parvathesam. South :-Jami Nalo ridge of the purchaser. West :-Kadam nalo ridge of the purchaser. South :-Jami Nalo ridge of the purchaser. West :-Kadam nalo ridge of the purchaser. North :-Pujari beda ridge of Ramo Parja.” 10. There is no description of land in the sale deed. In the schedule of the plaint, the plaintiff had described the land which corresponds to Khata No.73, Plot No.265, area Ac.7.88 cents of village Dubuli, P.S.-Jeypore, District-Koraput. The basis of claim of the plaintiff is the sale deed. Since there is no description of the land in the sale deed, the claim of the plaintiff over the suit schedule land is unfounded. Further none of the witnesses examined by the plaintiff could say the plot number of the suit land. Record of right was published in the name of the Government. The Tahasildar, Jeypore has rightly initiated encroachment case against the plaintiff. Learned appellate court is justified in holding that there is no trustworthy evidence to prove that the land described in Ext.1 and Ext.1/a corresponds to the suit land of plot no.265. In view of the categorically admission of the plaintiff in paragraph 6(a) of the plaint that she was in possession of the suit land, which was Anabadi land, it is no more open for the plaintiff to say that the suit land was her rayati land and her father had acquired occupancy right over the same. The plaintiff cannot blow hot and cold in the same breath. The substantial questions of law are answered accordingly. 11. In the result, the plaintiff’s suit must fail. The appeal is dismissed, but in the circumstances of the case, parties are to bear their own costs throughout.