Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 377 (ORI)

State of Orissa v. K. Natabar Prusty

2019-05-01

A.K.RATH

body2019
JUDGMENT : A.K. RATH, J. 1. This appeal, at the instance of the defendants, assails the reversing judgment of the learned 1st Addl. District Judge, Ganjam, Berhampur in T.A No. 22/1987 (38/86-GDC). 2. The dispute pertains to a tank having an area of Ac.1.41 dec. of land appertaining to Khata No.389, Sl. No.51 of village-Polosora in the district of Ganjam. 3. Respondent no.1 and predecessor-in-interest of respondents 2 to 7, as plaintiffs instituted T.S.No.57 of 1981 before the learned Subordinate Judge, Aska for confirmation of possession and permanent injunction. Case of the plaintiffs was that the father of plaintiff no.1 and plaintiffs 2 and 3 were brothers. They were separated in the year 1948, but the suit land was kept joint. The suit land originally belonged to ex-intermediary of Khallikote. It was lying fallow. It was locally known as 'Kendugadia'. Father of plaintiff no.1 applied to the ex-intermediary of Khallikote for allotment of land. The ex-intermediary issued Banjar patta in his favour on 21.12.1938 for a period of twenty years from 1948 to 1968 subject to payment of cist of Rs.2.13 ps. and 1 pie per year. He reclaimed the land and converted the same to a tank. Plaintiffs used to pay cist, land tax, cess to the ex-intermediary. The suit land is the rayati land. The estate vested in the State after coming into operation of the Orissa Estates Abolition Act ('OEA Act'). But the suit plot had not vested in the State. They are the absolute owners of the suit plot. They used to rear fish in the tank and irrigate their land from the water of the tank. Since Kasinath Sahu and others disturbed their possession, they instituted Title Suit No.160 of 1960 in the court of Munsif, Aska. The suit was decreed. In the settlement ROR, the suit land has been wrongly recorded as Paramboka in the name of Executive Officer, NAC, Polosora, defendant no.3. ROR neither creates title nor extinguishes title. Defendants 1 and 2 have no semblance of right, title and interest over the same. Defendant no.3 has taken possession of the tank. While matter stood thus, the Tahasildar, Kodala, defendant no.2, initiated LE Case No.6944 of 1972 under the Orissa Prevention of Land Encroachment Act, 1972 ('OPLE Act') and passed an order of eviction. Order of eviction is illegal. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra. 4. Defendant no.3 has taken possession of the tank. While matter stood thus, the Tahasildar, Kodala, defendant no.2, initiated LE Case No.6944 of 1972 under the Orissa Prevention of Land Encroachment Act, 1972 ('OPLE Act') and passed an order of eviction. Order of eviction is illegal. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra. 4. Defendants 1 and 2 filed a written statement denying the assertions made in the plaint. It was pleaded that the alleged Banjar patta is not genuine. The ex-intermediary had no right to issue Banjar patta in the year 1948. The same is not binding on the State. In the remarks column of the ROR, it is reflected that the plaintiffs were in possession of the tank unauthorisedly with the help of the ex-intermediary. Father of plaintiff no.1 had not excavated the tank. Plaintiffs were in unauthorised occupation of the land for which a proceeding under the OPLE Act was initiated against them. No rent had been paid by the plaintiffs to the State. Defendants were not aware of any suit filed by the plaintiffs. The suit tank is not the raiyati land of the plaintiff. It vested in the State. The suit land had been transferred in favour of defendant no.3. Cause of action arose when the ROR was published in the year 1962-63, but the suit was instituted after lapse of twenty years. 5. Defendant no.3 filed a written statement pleading, inter alia, that the suit tank is a public tank. After abolition of the estate, the suit land vested in the State. When Polosora G.P. was converted to NAC, the entire properties including the suit tank vested in the NAC. Defendant no.3 is in possession of the tank. 6. Stemming on the pleadings of the parties, learned trial court struck four issues. Parties led evidence, oral and documentary. Learned trial court dismissed the suit holding that Banjar patta dated 21.12.1938, Ext.2, reveals that originally the suit land is a tank. The tank was not in possession of the ex-intermediary. The same was not a private land of the ex-intermediary. The ex-intermediary granted patta to the father of plaintiff no.1. The tank was leased out for a period of twenty years. After coming into operation of the OEA Act, the suit tank vested in the State free from all encumbrances. The tank was not in possession of the ex-intermediary. The same was not a private land of the ex-intermediary. The ex-intermediary granted patta to the father of plaintiff no.1. The tank was leased out for a period of twenty years. After coming into operation of the OEA Act, the suit tank vested in the State free from all encumbrances. The plaintiff has no right, title and interest over the same. Felt aggrieved, the plaintiffs filed appeal before the learned District Judge, Ganjam, which was transferred to the court of learned 1st Addl. District Judge, Ganjam and renumbered as T.A No.22/1987 (38/86-GDC). Learned appellate court came to hold that from the village map of the year 1919, Ext.D, it is evident that the suit plot is a tank. Plaintiffs are in possession of the tank. Ext.1 is a genuine document. The suit tank is not a public tank. The suit tank had not vested in the State. Held so, it allowed the appeal. It is apt to state here that during pendency of the appeal, appellants 2 and 3 died, whereafter their legal representatives have been brought on record. 7. The second appeal was admitted on the substantial questions of law. The same are - "(1) Whether the lower appellate court was correct in holding that the disputed land could not have vested in the State under the provisions of the OEA Act because of the lease in favour of the plaintiffs as under Ext.2 " 2. Whether the lower appellate court was correct in declaring title of the plaintiffs in respect of the suit land in the absence of specific declaration on that score by the plaintiffs in the pleadings" 8. Heard Mr. Prasanjit Mohapatra, learned ASC for the State and Mr. Sidharth Mishra on behalf of Mr. S.N. Mohapatra, learned counsel for the respondents 1 to 3 and 6. 9. Mr. Mohapatra, learned ASC submitted that the suit land is a tank. The same vested in the State free from all encumbrances. The plaintiffs have no title over the same. 10. Per contra, Mr. Mishra, learned counsel for the respondents 1 to 3 and 6 submitted that learned appellate court came to a categorical conclusion that the plaintiffs have right, title and interest over the suit tank. Since the suit land is the lease hold land, the same had not vested in the State. 10. Per contra, Mr. Mishra, learned counsel for the respondents 1 to 3 and 6 submitted that learned appellate court came to a categorical conclusion that the plaintiffs have right, title and interest over the suit tank. Since the suit land is the lease hold land, the same had not vested in the State. Learned appellate court held that the plaintiffs are in possession of the suit tank. The plaintiffs had proved Banjar patta, Ext.2. Ext.2 shows that the plaintiffs are in possession of the suit land. Ext.2 is thirty years old document produced from the custody of the plaintiffs. So its execution is admitted. The lessee reclaimed the suit land and excavated the tank. The patta is genuine. There is no document to show that the suit land is Paramboka land. 11. The plaintiffs asserted that Raja of Khallikote granted Banjar patta on 21.12.1938 to K. Gurumurty Prusti, father of plaintiff no.1. On a bare perusal of Ext.2, it is evident that the suit plot is a tank. The same was granted on 21.12.1938 by the Raja of Khallikote estate for a period of twenty years subject to payment of cist. No khata number, plot number and area have been mentioned in Ext.2. 12. Sec. 5 of the OEA Act provides for consequences of vesting of an estate in the State. The same is quoted below; "5. The same was granted on 21.12.1938 by the Raja of Khallikote estate for a period of twenty years subject to payment of cist. No khata number, plot number and area have been mentioned in Ext.2. 12. Sec. 5 of the OEA Act provides for consequences of vesting of an estate in the State. The same is quoted below; "5. Consequences of vesting of an estate in the State Notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification [in the Gazette] under sub-section (1) of Section 3, [or sub-section (1) of Section 3-A] [or from the date of the execution of the agreement under Section 4, as the case may be] the following consequences shall ensue namely:- (a) Subject to the subsequent provisions of this Chapter the entire estate including all communal lands and porambokes, other non-raiyati lands, waste lands, trees, orchards, pasture lands, forests, mines and minerals (whether discovered or undiscovered, or whether being worked or not, inclusive of rights in respect of any lease of mines and minerals) quarries, rivers and streams, tanks and other irrigation works, water channels, fisheries, ferries, hats and bazaars and buildings or structures together with the land on which they stand 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 this Act." 13. On a conspectus of the said section, it is evident that after coming into operation of the OEA Act, the tank vested in the State free from all encumbrances. Admittedly the suit land is a tank. There is no description of property in the patta, Ext.2. The finding of the learned appellate court that the suit land is a raiyati land is perverse. 14. Learned appellate court came to a conclusion that from the village map of the year 1919, Ext.D, it is evident that the suit plot is a tank. When the map was prepared in the year 1919, the tank existed over the suit land. In view of Sec.5 of the OEA Act, the suit land vested in the State. The suit land has been recorded as Paramboka. 15. Section 3(15) of the Madras Estates Land Act defines raiyat. Section 3(16) defines ryoti land. When the map was prepared in the year 1919, the tank existed over the suit land. In view of Sec.5 of the OEA Act, the suit land vested in the State. The suit land has been recorded as Paramboka. 15. Section 3(15) of the Madras Estates Land Act defines raiyat. Section 3(16) defines ryoti land. The same is quoted hereunder : "(16) "Ryoti land" means cultivable land in an estate other than private land but does not include- (a) beds and bunds of tanks and of supply, drainage surplus or irrigation channels; (b) and (c) xxx xxx xxx" 16. In view of the fact that the suit tank is Paramboka land and the villagers use the same, the plaintiffs can not acquire right, title and interest by virtue of patta, Ext.2. 17. Section 5 of the OEA Act provides that all communal lands and Paramboka land shall vest absolutely in the State Government free from all encumbrances. The suit land being not a ryoti land within the meaning of Sec.3(16) of the Madras Estates Land Act, no tenancy right can be created in respect thereof by the landlord by settlement. 18. In Subarna Paridani v. The State of Orissa represented by Collector, Ganjam, 1968 34 CLT 307 , a Jeroyati patta was granted to the plaintiff's husband in the year 1941 by ex-intermediary. This Court held that whatever right he might have against the landlord, was a contractual right entitling him to hold the land against the landlord subject to the provisions of the Madras Estates Land Act and such contractual right, if any, have been wiped out by the operation of Sec.5 of the OEA Act. The ratio of the said decision applies in full force to the facts of the case. 19. A cloud of suspicion raised over the plaintiffs' title. There is no prayer for declaration of title. Learned appellate court fell into patent error in holding that the plaintiffs have right, title and interest and possession over the suit land in absence of any prayer for declaration of title. 20. In Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. and others, (2008) AIR SC 2033, the apex court held that where a cloud is 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. 20. In Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. and others, (2008) AIR SC 2033, the apex court held that where a cloud is 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. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. The substantial questions of law are answered accordingly. 21. Resultantly the appeal succeeds and is accordingly allowed. Impugned judgment of the learned appellate court is set aside and the judgment of the learned trial court is restored. There shall be no order as to costs.