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2019 DIGILAW 246 (ORI)

Daitary Swain v. Kartika Swain

2019-03-27

B.R.SARANGI, BISWAJIT MOHANTY, K.S.JHAVERI

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JUDGMENT : B. Mohanty, J. The following propositions of law have been referred for our decision. 1. What is the status of a Sikimi tenant? 2. Whether right of the Sikimi tenants in respect of agricultural land vis-a-vis homestead is different and distinct? 3. Whether the Sikimi right in respect of agricultural land is heritable and transferable? 4. Whether the Sikimi right in respect of homestead is heritable and transferable? 2. The aforesaid reference has been made in the following circumstances. While this Court in a judgment dated 18.11.1998 rendered by a Division Bench in the case of Smt. Sarala Kumari Rath Vs. Khati Rout and others, (2000) 2 OrissaLR 363 came to hold that Sikimi right in respect of both the agricultural land and homestead land is heritable and transferable, however, another Division bench of this Court in an unreported decision i.e. in the case of Natabara Pandey Vs. Sri Sri Tareswar Dev and Sri Sri Tarini Thakurani and others pertaining to O.J.C. No.4349 of 1994 decided on 30th October, 2002 has held that a Sikimi tenant is an "under-raiyat" and such tenancy is neither heritable nor alienable. This later view has been reiterated by a learned Single Bench of this Court on 24.01.2004 in the case of Subal Baliarsingh and another Vs. Chanchala Bewa and another, (2003) 95 CutLT 438 by relying on Natabara Pandey case (Supra). In view of such cleavage of opinion, with the above noted questionnaire, the matter has been referred before this Bench. 3. Mr. Mohanty, learned counsel for the petitioner submitted that the later Division Bench while pronouncing its judgment in Natabara Pandey case (Supra) has not referred to the judgment pronounced by a Division Bench of this Court earlier in the case of Smt. Sarala Kumari Rath (Supra). Similarly, the Single Bench of this Court in Subal Baliarsingh case (Supra) has also not referred to the Division Bench decision as rendered in Smt. Sarala Kumari Rath case (Supra). In such background, he submitted that the later two judgments namely the judgments rendered in the case of Natabara Pandey and Subal Baliarsingh (Supra) have been pronounced per curiam and, therefore, should be over ruled so far as their observations relating to the rights of Sikimi tenant are concerned. In such background, he submitted that the later two judgments namely the judgments rendered in the case of Natabara Pandey and Subal Baliarsingh (Supra) have been pronounced per curiam and, therefore, should be over ruled so far as their observations relating to the rights of Sikimi tenant are concerned. 3.1 Secondly, he argued that after amendment of Clause (i) of Sub-Section (1) of Section-4 of the Orissa Land Reforms Act, 1960 for short "OLR Act", by Orissa Act No.29 of 1976, the Sikimi tenants being under-raiyats, the agricultural lands held by them have become heritable and transferable. This amended provision has not been taken note of in Natabara pandey case (Supra) and Subal Baliarsingh case (Supra). With regard to Sikimi tenancy vis-a-vis homestead lands, he submitted that there exits no dispute that such tenancy has been recognized long back to be heritable and transferable. Thus Sikimi tenancy is clearly heritable and transferable. Thus he strongly supported the view of the Division Bench of this Court as rendered in Smt. Sarala Kumari Rath case (Supra) and submitted that on this point, the judgment of the Division Bench as rendered in the case of Natabara Pandey and the judgment of Single Bench as rendered in the case of Subal Baliarsingh (Supra) needs to be overruled. 4. Learned counsel appearing for the private opposite party Nos.1 & 2 agreed with the submissions made by learned counsel for the petitioner and submitted that the view as rendered by a Division Bench of this Court in the case of Smt. Sarala Kumari Rath lays down correct propositions of law. 5. Mr. B.P. Pradhan, learned Additional Government Advocate referring to the Dalziel Report prepared during 1922-1932, submitted that as per the said report Sikimi tenants are under-raiyats. He also submitted that while it is settled that Sikimi tenancy in respect of homestead land is clearly transferable and heritable as per Section 236 of the Orissa Tenancy Act, 1936 r/w Section 9 of the "OLR Act" however, with regard to agricultural land, he submitted that Sikimi tenancy has been made heritable and transferable only after declaration of the raiyati status of such tenant under the provisions of Section-4 of the "OLR Act". 5.1 In this context, he further submitted that for this purpose, a declaration is required to be made under Sub-Sections (5) to (8) of Section-4 of the "OLR Act" and only after such declaration; Sikimi tenancy in respect of agricultural land becomes heritable and transferable. In this context, Mr. Pradhan relied upon a decision of this Court rendered by a learned Single Judge in the case of Hari Jena & Others Vrs. Somanath Harichandan,1974 1 CWR 387. 5.2 So from the submissions of the parties, one thing is clear that both the parties have not disputed the fact that so far as the homestead land is concerned, Sikimi tenancy in respect of such land has been recognized to be heritable and transferable since long. A slight dispute remains with regard to Sikimi tenancy in respect of agricultural land. Though both sides agree that such land has become transferable and heritable after coming into force of Orissa Act 29 of 1976, however, Mr. Pradhan learned Additional Government Advocate submitted that for the said purpose declaration of raiyati status of a Sikimi tenant a must. 6. Before discussing the rival submissions in details, we may profitably refer to the Dalziel Report as indicated above. A perusal of the same clearly shows that Shikmi tenants are under-raiyats. There is no dispute at the Bar that there is no difference between the Shikmi tenants, Sikmi tenants and Sikimi tenants and that these are one and the same. A reference to "Purna Chandra Ordia Bhasakosha" which happens to be a lexicon of oriya language published during 1940 recognizes Sikimi tenant as a sub-tenant or a under-tenant. Section-4 (1) (i) of the "OLR Act" clearly deals with the status of sub-tenants and under-raiyats vis-a-vis their lands in personal cultivation or their agricultural lands. 6.1 Since Sikimi tenants have been recognized as underraiyats/sub-tenants, the above noted provision clearly deals with status of Sikimi tenants. As to how such tenants can become raiyats have been dealt with in Sub-sections (5) to (8) of Section-4 of the "OLR Act". But here we are mainly concerned with the status of a Sikimi tenant vis-a-vis homestead land and agricultural land and not with the issue as to how a Sikimi tenant acquires the status of raiyat and rights of such raiyat. 7. But here we are mainly concerned with the status of a Sikimi tenant vis-a-vis homestead land and agricultural land and not with the issue as to how a Sikimi tenant acquires the status of raiyat and rights of such raiyat. 7. Keeping this in mind, let us refer to the provision of Clause (i) of Sub-Section (1) of Section-4 of the "OLR Act" as it originally stood and its later amended versions. "(i) Persons who are immediately before the commencement of this Act in personal cultivation of any land and recorded as sub-tenants or under-raiyats in respect of such land in the record-of-rights under any law in force in any part of the state." (as originally stood) "(i) Subject to the provisions of sub-sections (5) to (8) persons who are immediately before the commencement of this Act in personal cultivation of any land and recorded as sub-tenants or under-raiyats in respect of such land in the record-of-rights under any law in force in any part of the State." (as stood after amendment by Orissa Act 13 of 1965) "(i) Subject to the provisions of Sub-sections (5) to (8) persons who are in personal cultivation of any land and recorded as sub-tenants or under-raiyats in respect of such land in the record-of-rights under any law in force in any part of the State and their successions-in-interest. (emphasis supplied) Provided that nothing in this clause shall apply to persons who are recorded as sub-tenants or under-raiyats after the 30th day of September, 1965 or to their successor-in-interest if the land in respect of which they have been so recorded belongs to a person under disability or to a privileged raiyat." (as stood after amendment by Orissa Act 29 of 1976) 7.1 In order to understand the matter better, let us also refer to relevant provisions of Orissa Act 29 of 1976, which amended Section-4 (1)(i) of the "OLR Act". The same reads as follows: "3. The same reads as follows: "3. In Section 4 of the principal Act,- (a) in sub-section (1),- (i) X X X (ii) in clause (i) (1) the words "immediately before the commencement of this Act" shall be and shall be deemed always to have been deleted; (2) the words "and their successors-in-interest" shall be and shall be deemed always to have been added at the end;" 7.2 A perusal of all these would make it clear that only after the "OLR Act" stood amended by Orissa Act 29 of 1976 and with introduction of the phrase "and their successors-in-interest"; the sub-tenants and under-raiyats and their successors interest have all been covered under Clause (i) of Sub-section (1) of Section-4 of the "OLR Act". Since the successors-in-interest would cover both inheritors and transferees, it clearly means that the tenancies covered under the above mentioned clause have been recognized as heritable and transferable. Accordingly, Sikimi tenancy in respect of agricultural land has clearly become heritable and transferable. 8. Now coming to the decision rendered in the case of Smt. Sarala Kumari Rath (Supra), it has been observed there that since a Sikimi tenant in possession of homestead land acquires occupancy status, therefore his right thereto is both heritable and transferable. With regard to agricultural land it observed that with amendment of the "OLR Act" by Orissa Act-29 of 1976, the words "and their successors-in-interest" were introduced and this Court while interpreting the words "successor-in-interest" has ruled in the case of Shridhar Chandra Kar Vs. Upendranath Gochhayat and others, 1980 49 CutLT 9 (Note 16) that the successors-in-interest also includes a transferee and accordingly, therefore, the right of sub-tenant or under raiyat in respect of cultivable land in his possession has become heritable and transferable. As indicated earlier since Sikimi tenant has been treated both as subtenant and under-raiyat, then the cultivable lands held by him have also become heritable and transferable. 8.1 The Division Bench in Smt. Sarala Kumari Rath (Supra) further held that even if the sub-tenant/under-raiyat has not filed an application as envisaged under Section-4 of "OLR Act" for declaration of his status as raiyat, yet the right of underraiyat/sub-tenant in respect of the disputed land will not get extinguished. 8.1 The Division Bench in Smt. Sarala Kumari Rath (Supra) further held that even if the sub-tenant/under-raiyat has not filed an application as envisaged under Section-4 of "OLR Act" for declaration of his status as raiyat, yet the right of underraiyat/sub-tenant in respect of the disputed land will not get extinguished. However, their rights would be enlarged when they would become raiyats by moving the Revenue Officer within the prescribed time as envisaged under Sub-Sections (5) to 8 of Section-4 of the "OLR Act". Thus this decision makes it clear that even without being declared as raiyats, the right of a subtenant/under-raiyat is heritable and transferable vis-a-vis cultivable lands in possession of a Sikimi tenant after "OLR Act" got amended by Orissa Act 29 of 1976. In such background Sikimi tenancy in respect of agricultural land has clearly become inheritable and transferable. 8.2 With regard to judgment of this Court rendered in the case of Hari Jena & Others (Supra) let it be pointed out that the issue there was how and under what process a Sikimi tenant can become a raiyat and it was made clear therein that until the proceeding as envisaged under Sub-Sections (5) to (8) of Section-4 are concluded by the Revenue Officer by passing an order declaring an under-raiyat to be raiyat, a Sikimi tenant cannot be deemed to be a raiyat and without such declaration, a successor cannot get any benefit. Here, we are not concerned with the said issue. Our only concern here is with the status of Sikimi tenant vis-a-vis homestead land and agricultural land held by him. Secondly, it is most important to note here that the said judgment was pronounced by this Court on 18.02.1974 and by that date the Orissa Act 29 of 1976 was yet to see the light of the day. 8.3 As indicated earlier with the amendment introduced by the Orissa Act 29 of 1976, the status of Sikimi tenant in respect of land under personal cultivation of such tenant has undergone sea change. Therefore, in our opinion the correct position with regard to right of Sikimi tenant so far as agricultural land is concerned is that after amendment of the Clause (i) of Sub-Section (1) of Section-4 of the "OLR Act", such Sikimi tenancy has become both heritable and transferable. Therefore, in our opinion the correct position with regard to right of Sikimi tenant so far as agricultural land is concerned is that after amendment of the Clause (i) of Sub-Section (1) of Section-4 of the "OLR Act", such Sikimi tenancy has become both heritable and transferable. 8.4 No doubt without complying the provisions of Sub-Sections (5) to (8) a Sikimi tenant cannot become a raiyat but that does not in any way affect his rights as a Sikimi tenant to transfer the agricultural land and the right of his legal heirs to inherit the same. The Clause (i) of Sub-Section (1) of Section 4 of the "OLR Act" cannot be read to mean that only after being declared as a raiyat, the Sikimi tenancy of a Sikimi tenant can become heritable and transferable. 8.5 In other words, even without being declared as a raiyat by virtue of the amendment of Clause (i) of Sub-Section (1) of Section 4 of the "OLR Act" as per Act-29 of 1976, a Sikimi tenant can transfer his cultivable/agricultural land and his legal heirs can inherit the same. Therefore, the attempt made by Mr. Pradhan, learned Additional Government Advocate to show that a Sikimi tenancy cannot be transferred and inherited unless a declaration under Sub-Section (5) of Section-4 of the "OLR Act" cannot be accepted as the same runs contrary to the intention of amended Clause (i) of Sub-section (1) of Section-4 of the "OLR Act". 8.6 The case of Hari Jena (Supra) mainly deals with the process as per which a Sikimi tenant can become a raiyat and rights of Sikimi tenant as it stood then. Since at that point of time the Sikimi tenancy in respect of agricultural land was neither heritable nor transferable, therefore, at that point of time there was no question of anybody making substitution after such a tenant dies in course of a proceeding. But after amendment introduced by Act-29 of 1976 and with insertion of the words "and their successor-in-interest", it has become clear that Sikimi tenancy in respect of agricultural land has become heritable and transferable and for this; acquisition of raiyat status by a Sikimi tenant is not required. Thus in our view law laid down by this Court in the case of Smt. Sarala Kumari Rath (Supra) is correct and cannot be faulted. 9. Thus in our view law laid down by this Court in the case of Smt. Sarala Kumari Rath (Supra) is correct and cannot be faulted. 9. With regard to Natabara Pandey case (Supra) where judgment was pronounced on 30.10.2002, the issue there related to legality or otherwise of the demand of the Landlord from the Sikimi tenant to get rent in a proceeding under Section 15 of the "OLR Act". The present issue was directly not the issue there. Division Bench of this Court however in the said case held that a Sikimi tenant has no abiding interest in the land and has only a right of cultivation which protects him from paying higher rent or from eviction except as stipulated under the "OLR Act". He is liable to pay rent as per the contract and perform other obligations. Division Bench further opined that Sikimi tenant being underraiyat, such tenancy is neither heritable nor alienable. There the attention of this Court was neither drawn to Smt. Sarala Kumari Rath case (Supra) nor to the amended Clause (i) of Sub-Section (1) of Section-4 of the "OLR Act". 9.1 In such background, for reasons indicated earlier, we have no hesitation in coming to a conclusion that so far as the issue of status of Sikimi tenancy is concerned, the conclusion of the Division Bench of this Court is wholly erroneous. Accordingly, we overrule the observation made in that decision with regard to the present issue wherein it has observed that Sikimi tenancy is neither heritable nor transferable. Subal Baliarsingh case (Supra) involved a suit relating to eviction where judgment was pronounced on 24.01.2004. There the plaintiffs claimed that their predecessor Gangadhar was a Sikimi tenant. In the said eviction suit the defendants took a plea that since the Sikimi right is not heritable; the plaintiffs could have no title to that portion of the disputed land i.e. Plot No.400. Relying on Natabar Pandey case, the Single Bench therein came to a conclusion that since such tenancy is neither heritable nor transferable, the plaintiffs cannot claim title over the same and bring any suit for eviction vis-a-vis Plot No.400. Relying on Natabar Pandey case, the Single Bench therein came to a conclusion that since such tenancy is neither heritable nor transferable, the plaintiffs cannot claim title over the same and bring any suit for eviction vis-a-vis Plot No.400. However, in that judgment also there is neither any reference to the amended provisions of Section 4(1)(i) of the "OLR Act" nor to Smt. Sarala Kumari Rath's case (Supra) which makes it clear that Sikimi tenancy both with regard to homestead land and agricultural land is transferable and heritable. In such background, we have no hesitation in coming to a conclusion that declaration of law made by the learned Single Judge in Subal Baliarsingh (Supra) case with regard to status of Sikimi tenant is incorrect and accordingly, we over rule the same to that extent. 10. Thus in the end, our answers to the questions containing the propositions of law as referred to this larger Bench are as follows: 10.1 With regard to question No.1, we are clearly of the opinion that in the background of Dalziel Report and definition of Sikmi tenant as given by "Purna Chandra Ordia Bhasakosha", a Sikimi tenant can be described both as sub-tenant and under-raiyat. With regard to the second question, our answer would be right of Sikimi tenants in respect of agricultural land and homestead land has become similar after coming into force of Orissa Act 29 of 1976 amending the "OLR Act". With regard to third question, our answer is Sikimi right in respect of agricultural land is both heritable and transferable as has been correctly laid down in Smt. Sarala Kumari Rath's case (Supra). With regard to question No.4, our answer would be, Sikimi right in respect of homestead land is clearly heritable and transferable. 11. Accordingly, the reference is answered. Place this matter before appropriate Bench for disposing of O.J.C. No.13720 of 1997 in accordance with law.