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2021 DIGILAW 199 (ORI)

Nityananda Nayak v. Biswanath Kalo

2021-04-23

D.DASH

body2021
JUDGMENT : D. Dash, J. 1. The Appellant, by filing this Appeal under section 100 of the Code of Civil Procedure (for short, 'the Code'), has assailed the judgment and decree dated 04.09.2012 and 15.09.2012 respectively passed by the learned Additional District Judge, Fast Track Court, Sundargarh in R.F.A. No. 12/36 of 2009-11. By the same, the judgment and decree dated 06.03.2009 and 19.03.2009 respectively passed by the learned Civil Judge (S.D.), Sundargarh, in C.S. No. 63 of 2006 have been confirmed. This Appellant, as the Plaintiff, had filed the Suit for declaration of his right, title and interest over the suit land and confirmation of possession with further prayer to declare the entire proceeding and the decision rendered in a proceeding under the Odisha Scheduled Areas Transfer of Immovable Property (By Scheduled Tribe) Regulation, 1956 (hereinafter, for short called as 'the Regulation 2 of 1956') in Misc. Case. No. 4 of 1998 by the Officer on Special Duty (Land Reforms), Sundargarh arraigned as Defendant No. 3 as also the decision rendered in the Appeal proceeding by the Additional District Magistrate, Sundargarh in R.A. No. 49 of 2002. 2. For the sake of convenience and clarity as also to avoid confusion; the parties hereinafter have been referred to in the same rank as assigned to them in the original proceeding before the Trial Court. 3. The Plaintiff's case is that the suit land originally belonged to one Jayadev Kalo, the predecessor-in-interest of Defendant Nos. 1 and 2. It is his case that said Jayadev Kalo, during his life time, had sold the land to two persons, namely, Harun Nag and Abdul Gony Ansari on 05.03.1955. Said Harun Nag had purchased the suit land measuring Ac. 0.06 decimals from Jayadev Kalo under one unregistered plain paper document for a consideration of Rs. 140/-. It is stated that from the date of said purchase, Harun Nag becoming the owner possessed the land in question. Later Harun Nag sold the suit land to the Plaintiff by executing a registered sale deed on 17.05.1961. Pursuant to the same, the Plaintiff possessed the suit land being its owner. When the matter stood thus, the Defendant No. 3 initiated a proceeding under the Regulation, 1956 vide Misc. Case No. 4 of 1998 against the Plaintiff and his vendor Harun Nag. Pursuant to the same, the Plaintiff possessed the suit land being its owner. When the matter stood thus, the Defendant No. 3 initiated a proceeding under the Regulation, 1956 vide Misc. Case No. 4 of 1998 against the Plaintiff and his vendor Harun Nag. The above action initiated was to evict them from suit land and restore the possession of the said land to the successor-in-interest of Jayadev Kalo. The proceeding finally ended with an order of eviction of the Plaintiff and his vendor Harun Nag followed by an order of restoration of possession of the suit land in favour of the Defendant Nos. 1 and 2. The order being passed on 30.11.2002, the Plaintiff carried an Appeal as provided under Regulation 2 of 1956 to the Appellate Authority, i.e., Defendant No. 4. The Appeal being numbered as R.A. No. 49 of 2002, finally came to be dismissed. The order passed by the Defendant No. 3 thus stood confirmed. The Plaintiff being aggrieved by the said orders, challenged those by carrying writ petitions before this Court in W.P.(C) Nos. 8994 and 8995 of 2005. Those also stood dismissed. The Plaintiff thereafter filed Letters Patent Appeal vide W.A. No. 71 of 2005. The Hon'ble Division Bench of this court on 19.12.2005 dismissed those Appeals. Thus, having failed in the attempts, the Suit was instituted praying for the reliefs as already stated. 4. The Defendant Nos. 1 and 2 in whose favour the orders had been passed by Defendant Nos. 3 and 4 in those proceedings under Regulation 2 of 1956, contested the Suit by filing their written statement and so also the Authorities acting under the Regulation 2 of 1956, i.e., Defendant Nos. 3 and 4 filed their written statements. The case of the Defendant Nos. 1 and 2 is that they are members of Scheduled Tribes community residing in the Schedule Area. Jayadev Kalo was there predecessor-in-interest. They denied the case of the Plaintiff that Jayadev Kalo had ever sold the suit land to Harun Nag, who is a member of their community. It is their case that the suit land had been erroneously recorded in the name of Harun Nag in the settlement operation. Be that as it may, by virtue of erroneous recording, Harun Nag had not acquired any sort of interest over the suit land. It is their case that the suit land had been erroneously recorded in the name of Harun Nag in the settlement operation. Be that as it may, by virtue of erroneous recording, Harun Nag had not acquired any sort of interest over the suit land. Since Harun Nag had no interest whatsoever the land in question, he had no alienable right over the same and the sale of the land in favour of the Plaintiff, according to them is of no value in the eye of law and is void. So, the Plaintiff has never been clothed with any right, title and interest by his so called purchase from Harun Nag. It is their case that Misc. Case No. 4 of 1998 had been initiated by the Defendant No. 3 to evict Harun, the Plaintiff along with another co-purchaser Abdul Gony Ansari from the suit land in exercise of the power under the Regulation 2 of 1956. The proceeding was rightly concluded and final order therein having been passed, the same has stood the test before the Appellate Authority, i.e. Defendant No. 4 as also before this Court on Original as well as appellate side. It is stated that the Suit is barred by the section 7-E of the Regulation 2 of 1956 which clearly prohibits entertainment of Suit and any matter so decided in the proceeding under the Regulation for being agitated again. The Defendant Nos. 3 and 4, reiterating the stand taken by the Defendant Nos. 1 and 2 have stood in support of the orders passed in Misc. Case No. 4 of 1998 as well as Appeal No. 49 of 2002. It is stated that all such due procedures as provided in law holding the field have been scrupulously followed and those orders being free from any illegality or infirmity have remained un-interfered in the Writ Proceeding as well as the Appeal carried therefrom. It is stated that the Suit is vexatious for no reason except to harass the Defendant Nos. 1 and 2, who are the members of the Scheduled Tribe with a bid to deprive them of the fruit of the proceeding under the Regulation 2 of 1956 and grab their immovable property which forms the subject matter of the Suit. 5. On the above rival pleadings, have framed in all ten issues. 1 and 2, who are the members of the Scheduled Tribe with a bid to deprive them of the fruit of the proceeding under the Regulation 2 of 1956 and grab their immovable property which forms the subject matter of the Suit. 5. On the above rival pleadings, have framed in all ten issues. Answering the crucial issue as to the jurisdiction of the Civil Court with which we in this second Appeal are concerned, as on that score, the substantial question of law has been formulated for being answered, together with other two issues which are consequential as to the right, title and interest of the Plaintiff over the suit land vis-a-vis that of the Defendant Nos. 1 and 2 as asserted, the Trial Court has non-suited the Plaintiff. The unsuccessful Plaintiff having carried the First Appeal has also lost therein. The Plaintiff has thus filed this Appeal before this Court. 6. The Appeal has been admitted on the following substantial question of law:- "Whether the finding of both the Courts below with regard to issue No. v is contrary to principles laid down in Paramananda Pradhan and another v. Palau Sahu and others, 56(1983) CLT 482 (F.B.) and Mangulu Jal and others v. Bhagaban Rai and others, 41 (1975) CLT 526?" 7. I have heard learned counsel for the Appellant and the learned counsel for the Respondents at length. The judgments of the Trial Court as well as the First Appellate Court have been carefully gone through. The written notes of submissions filed by the learned counsels for the parties being taken on record have been carefully read. 8. Section 7-E of the Regulation 2 of 1956 reads that no Civil Court has any jurisdiction to decide any matter in a Suit which has already been adjudicated by the Competent Authority under the Regulations. This section in the Regulations creates a bar for the jurisdiction of the Civil Court to entertain this Suit. In case of Manglu Jal and others v. Bhagaban Rai and others, 41 (1975) CLT 526, the Hon'ble Full Bench of this Court had the occasion to deal with the question of exclusion of the jurisdiction of the Civil Court by a provision in the special statute. 9. In case of Manglu Jal and others v. Bhagaban Rai and others, 41 (1975) CLT 526, the Hon'ble Full Bench of this Court had the occasion to deal with the question of exclusion of the jurisdiction of the Civil Court by a provision in the special statute. 9. Legal position has been well explained in the said decision as also in the subsequent one, i.e., in case of Paramananda Pradhan and another v. Palau Sahu and others, 56 (1983) CLT 482 (FB). It is pertinent to mention at this stage that those two decisions were not directly dealing with the bar to suits as provided under section 7E of the Regulation 2 of 1956 and in those cases similar provision as to bar of suits and exclusion of the jurisdiction of the Civil Courts in another Special Statue, i.e. Odisha Merged Territories (Village Offices Abolition), Act, 1962 (for short, OMT (VOA) Act) under consideration as to its applicability and the limit as to permissibility on the part of the Civil Court in the matters thereto. Yet the principles laid down therein get well attracted for deciding the issue concerning similar provisions as to bar of suits and exclusion of the jurisdiction of the Civil Court as provided in pari materia provision in other Special Statutes. It has been laid down therein that even if jurisdiction is excluded, it is always open to the Civil Courts which are courts of general jurisdiction to consider and decide whether the Statutory Tribunal has acted within the ambit of the powers conferred upon it by the Statute to which it owes its existence or the provisions of the Act have not been complied with or the Statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure or it has transgressed the limits placed on its powers by the Legislature. The Civil Court would interfere if it finds that the order of the Statutory Tribunal is unfair, capricious or arbitrary. The Civil Court would interfere if it finds that the order of the Statutory Tribunal is unfair, capricious or arbitrary. Referring to the decision in case of Mangulu Jal (supra), in case of later Full Bench decision in case of Paramananda (supra) what has been held is reproduced hereinunder:- The question about the exclusion of the jurisdiction of the Civil Courts to entertain a Suit by virtue of the specific provisions contained in Orissa Act 10 of 1963 has been examined in the Full Bench decision of this Court in the case of Mangulu Jal and others v. Bhagaban Rai and others, to which one of us (P.K. Mohanti, J) was a party. In that case some Bhogra lands were settled by the Collector after abolition of the village office by a Press Note which had been issued prior to the enactment of Orissa Act 10 of 1963. The Trial Court set aside the settlement made in favour of the defendants and granted a decree for declaration of title and recovery of possession in favour of the plaintiff. The appeal preferred by the defendants proved abortive. During the pendency of the Second Appeal Orissa Act 10 of 1963 came into force. Construing the provisions of the Act, the Hon'ble Full Bench held as follows:- "....The Act provides a complete machinery for determination of rival claims and when revision and appeal have been provided to the High Court subject to which the decision of the Board of Revenue will be final, it will be fantastic to contend that the Civil Court has jurisdiction to try those disputes. Ouster of jurisdiction of the Civil Court is clearly implied...." It was further held: "......settlement made under the Press Note before the Act came into force whether prior to the Suit or during the pendency of the litigation would be governed by the provisions of the Press Note. Civil Court will have no jurisdiction to set aside such settlement except in the limited manner already pointed out. Settlements made under the provisions of the Act during the pendency of a litigation would be governed by the provisions of the Act," 10. In the above cited case, during pendency of the suit one schedule property being dealt under OMT (VOA) Act were settled with Appellants and Respondent No. 8 therein on 22.10.1971 under the provision of section 6 of the said Act. In the above cited case, during pendency of the suit one schedule property being dealt under OMT (VOA) Act were settled with Appellants and Respondent No. 8 therein on 22.10.1971 under the provision of section 6 of the said Act. The Appeal was even pending when the Second Appeal was disposed of. After the Act came into force, the Gountiaraiyati lands settled with the Appellants and Respondent No. 8 Dibakar Sahu. The decree for partition of those lands among all the parties was found virtually amounting to setting aside the settlement. It has been held that by virtue of section 3(g) of the OMT (VOA) Act the Gountia ceased to have the right to hold the Gountiaraiyati lands and after the lands were settled with the Appellants and Respondent No. 8 therein under section 6 of the Act, they acquired good title to the same. So it has been authoritatively it is said that the settlement thus made cannot be questioned in Civil Court when it is not shown that the settlement was made without complying the provisions of the Act or that the Statutory Tribunal did not act in conformity with the fundamental principles of judicial procedure and further nothing was also shown that the order of settlement made by the Statutory Tribunal is unfair, capricious or arbitrary. Having so held, the Hon'ble Full Bench declared that the Civil Court has no jurisdiction to entertain the Suit for Partition of the Gountiaraiyati lands, which would unsettle the settlement in terms of the order of the Statutory Tribunal. 11. While approaching the matter to examine the contentions raised, on examining the evidence on record, the Trial Court has stated thus:- "The plaintiff has also filed and proved the entire order sheet in Misc. Case No. 4/98 disposed of by defendant No. 3 and marked as Ext. 10 in the suit. It is stated in the affidavit evidence at para-5 that proper opportunity was not given to the present plaintiff in the court of Defendant No. 3 to call for some document and this is the only allegation against the defendant No. 3 in the affidavit evidence of P.W. 1 finds place at para-4 of its pleading. Upon perusal of the order sheet in Misc. Case No. 4/98 marked as Ext. Upon perusal of the order sheet in Misc. Case No. 4/98 marked as Ext. 10, it appears that there is no material in the order sheet to show that the plaintiff intended to call for some document on 19.10.2001 but on 19.11.2001 the Advocate for the OP filed a petition praying therein to call for the original service book of the OP namely Harun Nag from the S.P., Sundargarh. The further order sheet shows that the said record was called for from the office of S.P., Sundargarh. The order dated 7.3.2002 passed in the said misc. case shows that Superintendent of Police reported that no such A.S.I. namely Harun Nag was posted since last ten years and the S.P. has requested the place of posting and year of posting of Harun Nag and as such defendant No. 3 directed the present plaintiff to furnish details of informations as pointed out by the S.P. Sundargarh to call for said documents. The further order sheet shows that the present plaintiff did not comply the said order for which the service book of Harun Nag could not be called for from the S.P. office and on 8.7.2002 the case was fixed for argument. The plaintiff the challenged procedural irregularity by defendant No. 3 in not calling for the service book of Harun Nag. There is no material to show either in the case record of Misc. Case No. 4 of 1998 as to how service book of Harun Nag was a material document for just decision of that case under clause-3 of Orissa Regulation-2 of 1956. Moreover, in case it is a material document for some or other and the plaintiff intends to get relief in this suit what debarred him to file a petition in this Court to call for the said document when the plaintiff has filed and proved some other ten documents. Furthermore upon perusal of the facts and materials involved in the case before the defendant No. 3. I find from the entire order-sheet supplied by the plaintiff marked as Ext. 10, it appears that defendant No. 3 has acted in conformity with the law laid-down in Regulation-2 of 1956 after giving reasonable opportunity and affording natural justice to the plaintiff. Furthermore upon perusal of the facts and materials involved in the case before the defendant No. 3. I find from the entire order-sheet supplied by the plaintiff marked as Ext. 10, it appears that defendant No. 3 has acted in conformity with the law laid-down in Regulation-2 of 1956 after giving reasonable opportunity and affording natural justice to the plaintiff. Hence, this Court has no jurisdiction to entertain a suit in view of bar under clause- 7(E) of Orissa Regulation-1 of 1956." It has further placed the discussion as under:- According to Regulation of Orissa Regulation-2 of 1956, transfer of immovable property by member of Schedule Tribe in favour of a non-Schedule Tribe without prior permission is void ab initio and of no force or effect whatsoever. Order dated 7.6.2002 passed in Misc. Case No. 4/98 shows that Book No. 1 in Vol. 6 from page No. 153 to 156 pertaining to R.S.D. No. 580 dated. 17.05.61 was called for from the office of District Sub-Registrar, Sundargarh and it was produced by one Niranjan Patel, Sr. Clerk and both parties accepted the same to be a genuine one and it was compared with the certified copy submitted by the petitioner. The plaintiff in his pleading has stated that the transaction was in the year 1955, but it appears that the transaction was made on 17.5.1961 by registered sale deed which is long after coming into force of Orissa Regulation-2 of 1956. 12. The First Appellate Court, referring to certain decisions, as to taking recourse before the Civil Court on the face of the special law providing Special Forums has held that the issues raised in the Suit having already been raised before the Competent Authorities in different Forums and the answers recorded therein, have attained finality. Therefore, for the Plaintiff to raise said similar and identical issues in a Suit is not permissible and accordingly, the Suit cannot be maintained. 13. The contention raised from the side of the Appellant in support of bringing the case within the purview and scope for entertainment to the Civil Suit in terms of the decision of this Court rendered by the Hon'ble Full Bench is founded upon the fact that Bisam Kalo and Raghunath Kalo both sons of Jayadev Kalo had filed T.S. No. 68 of 1988 against Gopinath Kalo and other co-sharers for partition where these Defendant Nos. 1 and 2 being placed as Plaintiffs, had admitted that Jayadev Kalo had sold land measuring Ac. 0.12 decimals to the Head Master of Badagaon High School which had been so accepted in said T.S. No. 68 of 1988, the judgment of which is Ext. 1. The said judgment and decree passed in the Suit being challenged by these Plaintiffs as Appellants, the said sale of land in favour of Badagaon High School was not interfered with by the Appellate Court in its judgment marked Ext. 4. So, it is stated that Defendant Nos. 1 and 2 are bound by the said judgments and in that state of affair, the Defendant Nos. 3 and 4 in disposing the proceeding under the Regulation 2 of 1956 since have ignored the above vital fact and without taking cognizance of the same, as have passed the final order had thus not acted in conformity with the fundamental principle of judicial procedure and have transgressed their limit placed by its power by the Legislature. Therefore, it is urged that the Courts below committed grave error of law by dismissing the Suit filed by the Plaintiffs merely holding that the orders passed by the Defendant Nos. 3 and 4 have attained finality. The Regulation 2 of 1956 has been promulgated by the Hon'ble Governor in exercise of the powers conferred in sub-paragraph 2 of paragraph 5 of the Fifth Schedule to the Constitution of India which is the legislative function of Hon'ble The Governor in respect of the Scheduled Areas of the State in so far as the members of Scheduled Tribe community are concerned. This Regulation received the assent of His Excellency, The President on 2 September, 1956 and published in the Odisha Gazette Extra Ordinary dated 4 October, 1956 with effect from which date, the Regulations became effective. The purpose of the Regulations is to control and check transfer of immovable property in Scheduled Areas of the State of Odisha by Scheduled Tribes for their protection in all respect. The purpose of the Regulations is to control and check transfer of immovable property in Scheduled Areas of the State of Odisha by Scheduled Tribes for their protection in all respect. Section 3 begins with a not obstante clause that notwithstanding anything contained in law for the time being, in force, any transfer of immovable property by a member of the Scheduled Tribe except by way of mortgage executed in favour of any public, financial institution for securing a loan granted by such institution for any agricultural purpose shall be absolutely null and void and of no force or effect whatsoever unless such transfer is made in favour of any member of Scheduled Tribe. Sub-section (2) of said section 3 of the Regulations speaks of the consequence of such transfer of immovable property in contravention of the provisions made at sub section 1. The most important feature of this sub-section (2) is that the Competent Authority can initiate the proceeding for its culmination in accordance with law on his motion and proviso thereto says that if the restoration of immovable property to the transferer or his heirs is not reasonably practicable, by recording the reasons and subject to the control of the State Government, the said property can be settled with another member of a Scheduled Tribe or in absence of any such member with any other member in accordance with the provisions contained in the Orissa Government Land Settlement Act, 1962. The restoration of possession has been further clarified by the Explanation thereto which means the actual delivery of possession by the Competent Authority to the transferer or his heirs. The jurisdiction of the Competent Authority in the matter is no more open to challenge in the Suit as section 7-E of the Regulations 2 of 1956 provides that no Civil Court can try and decide any suit or proceeding so far as it relates to any manner which any which any Officer or other Competent Authority is empowered by or under the Regulation to decide. The aforesaid fact even though has not been touched upon by the Authorities, i.e., Defendant Nos. 3 and 4, on the face of the provision of law, as stated above, the same cannot term the orders passed by the Defendant Nos. 3 and 4 as unfair, capricious or arbitrary. Nor can the Defendant Nos. The aforesaid fact even though has not been touched upon by the Authorities, i.e., Defendant Nos. 3 and 4, on the face of the provision of law, as stated above, the same cannot term the orders passed by the Defendant Nos. 3 and 4 as unfair, capricious or arbitrary. Nor can the Defendant Nos. 3 and 4 by not taking cognizance of the above fact be said to have not acted in conformity with the fundamental principles of judicial procedure and thereby transgressed the limits placed on the power by the Legislature. In the case at hand, even accepting the factual, position, the Plaintiff thereby nowhere can retain his possession in respect of the suit land as he is not the beneficiary under that transaction which is referred to. 14. The Authorities, in exercise of the jurisdiction conferred upon them even though said for a moment to have gone to decide the matter wrongly which was available to be corrected by the higher forum, the Civil Court certainly cannot assume the jurisdiction to examine the sufficiency or adequacy of the materials in support of the said decisions. The procedure and the remedies normally associated with actions in Civil Suits are provided and prescribed and the same imply to oust the jurisdiction of the Civil Court. The principles have been authoritatively set at rest by the Hon'ble Full Bench in two cases, i.e., Mangulu Jal and Paramannda Pradhan (supra) that the Civil Court cannot sit over to examine the legality and propriety of the said order touching the fundamental aspects which are required to be decided by the Authority and its interference is permissible firstly on ground that the order is unfair, arbitrary and capricious which conclusion has to be reached if on the materials placed before the Collector, a reasonable man could not have reached the same conclusion, but however unsatisfactory the conclusion may be, it cannot be set aside merely because a different view is taken by the Civil Court on the materials before it; the correctness of the decision cannot be the subject matter of decision before the Civil Court. The other ground of interference is the violation of the judicial procedures which if so surface on record, so as to hold the order as unfair, capricious and arbitrary. 15. The other ground of interference is the violation of the judicial procedures which if so surface on record, so as to hold the order as unfair, capricious and arbitrary. 15. In our given case, the Trial Court in that exercise having scrupulously examined the entire order-sheet of the proceedings before the Authorities under the Regulation 2 of 1956 has not found anything to be surfacing therefrom to conclude that the orders are unfair, capricious and arbitrary which have gone uninterferred in exercise of the writ jurisdiction of this Court and also the Appellate Jurisdiction thereunder. The First Appellate Court has not found any reason/justification to accord any note of dissent to the said conclusions arrived at by the Trial Court. For the discussions made in the foregoing paras, this Court does not find the answer the substantial question of law in favour of unsettling the above conclusions arrived at by the Courts below so as to annul the judgments and decrees passed by the First Appellate Court confirming the judgment and decree of the Trial Court. 16. The Appeal is accordingly dismissed. However, in the peculiar facts and circumstances, no order as to cost is passed. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed, vide Court's Notice No. 4587, dated 25 March, 2020 as modified by Court's Notice No. 4798 dated 15 April, 2021.