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2018 DIGILAW 749 (ORI)

Dayanidhi Lathi v. State of Orissa

2018-08-21

D.DASH

body2018
JUDGMENT This appeal under Section 100 of the Code of Civil Procedure (for short, hereinafter called ‘the Code) had been filed challenging the judgment and decree dated 12.02.2002 and 20.2.2002 passed by the learned District Judge, Puri in Title Appeal No.22/2000, confirming of the judgment and decree passed by the learned Civil Judge (Junior division), Puri in Title Suit No.364 of 1993. This appellant having filed the suit as the plaintiff with a prayer to declare his occupancy right, title and interest over the suit land and for correction of the settlement record of right, the trial court dismissed the same. So, as the unsuccessful plaintiff, he had filed an appeal under section 96 of the Code which has also been dismissed. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the trial court. 3. The plaintiff’s case is that the suit land originally belonged to ex-intermediary Smt. Susila Bala Dasi as per 1927-28 Settlement. It is stated that on 20.03.1943, said ex-intermediary had issued Kabuliyat Raiyat Patta in favour of one Madan Lathi, who happens to be the father and the vendor of the property in respect of suit land having received salami of Rs.250/-. Pursuant to the said execution of Kabuliyat Raiyat Patta, father of the plaintiff was delivered with the possession of the suit land and he continued to possess the same paying rent to the ex-intermediary all along. The plaintiff’s claim to have succeeded to the suit property upon the death of his father and in possession of the same. He further asserts to have planted trees over there and constructed house. Here in the suit, he has claimed the property under said Kabuliyat Raiyat Patta as to have acquired the occupancy right, title and interest over the suit land. As the same has not been recognized in the last settlement operation and the suit land has been erroneously recorded in the name of the State, the suit has been filed. 4. The defendant while traversing the plaint averments have seriously attacked the claim of the plaintiff to be having occupancy right, title and possession over the suit land. As the same has not been recognized in the last settlement operation and the suit land has been erroneously recorded in the name of the State, the suit has been filed. 4. The defendant while traversing the plaint averments have seriously attacked the claim of the plaintiff to be having occupancy right, title and possession over the suit land. Although, it is admitted that the property originally belonged to the ex-intermediary, Susila Bala Dasi, it has been further pleaded that the State has acquired the suit land with other nearby lands vide Land Acquisition Case No.01 of 1931-32 and has taken possession of the same from the ex-intermediary on payment of compensation. It is stated that after acquisition, the property in suit has been distributed to different Government Institutions and this property in suit is now in possession of the defendant. The claim of the plaintiff is alleged to be false, frivolous and in order to grab the property in such important location. 5. The trial court on the above rival pleadings having framed five issues as it appears to has right gone to decide the issue No.1 and 2 which concern with the right, title, interest and upon possession as claimed by the plaintiff. After examination of evidence and their analysis, a finding has been recorded against the plaintiff which has led to the dismissal of the suit. The result has remained unaltered in first appeal carried by plaintiff. 6. The second appeal has been admitted on the following substantial question of law ;- (i) the Exts. 2 and 3 being 30 years old documents and admittedly the scribe and witnesses having died, the learned courts below are justified in holding that the plaintiff has failed to prove the said document vide Ext. 2. (ii) the finding of the courts below that Ext. 2, the lease deed, which was for agricultural purposes and neither required registration nor to be stamped in view of Section 117 of the T.P. Act, are inoperative, is sustainable in law. 7. Heard learned Counsel for appellant and learned Additional Government Advocate. Perused the judgment of the trial court as well as that of the lower appellate court. 8. 2, the lease deed, which was for agricultural purposes and neither required registration nor to be stamped in view of Section 117 of the T.P. Act, are inoperative, is sustainable in law. 7. Heard learned Counsel for appellant and learned Additional Government Advocate. Perused the judgment of the trial court as well as that of the lower appellate court. 8. Both the courts below have concurrently held that the said deed said to have been filed by ex-intermediary namely, Susila Bala Dasi in favour of the father of the plaintiff is an unregistered one, without the signature of the lessee. The position of law is well settled that to obtain right of occupancy, a person must be a settled raiyat under Section 24 of the Orissa Tenancy Act and if he has continued as such for a period of 12 years, there can be acquisition of status of occupancy right under Section 25 of the said Act. The plaintiff has not pleaded so in the plaint as to how he acquired such status of Occupancy Right. So, the claim of the plaintiff as regards the acquisition of Occupancy Right in respect of the suit land is concerned is without any foundation. Mere execution of lease-deed by ex-intermediary in favour of a person does not confer the status of raiyat on the lessee nor protects the possession of such lessee under section 8 of the Orissa Estates Abolition Act. Furthermore, the courts below have discarded this Ext. 2, Kabuliyat Raiyat Patta and the rent receipts under Ext. 3 series by assigning justified legal reasons and no fault is found with the same. In that view of the matter, in my considered view, the substantial questions of law as framed are academic importance having no such significance and impact over the claim of the plaintiff over the suit land as laid in the suit and as such do not survive for their consideration and answer. 8. In the result, the appeal stands dismissed and in the facts and circumstances without cost. Appeal dismissed.