The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.188 of 1988 An application under Section 100 of the Civil Procedure Code. Brundabati Jena & Others …. Appellants -versus- Mahendra Senapati & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. D. Nayak, Advocate. For Respondent - Mr. Avijit Pal, on behalf of Mr. B. Pal, Advocate. CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :07.11.2023 :: Date of Judgment :24.11.2023 1. This 2nd Appeal has been preferred against the reversing Judgment. 2. The appellants in this 2nd Appeal were the defendants in the suit vide C.S No65/84 of 1981-79-I and they were the respondents in the 1st Appeal vide M.A. No.21/8 of 1983/82-I. S.A No.188 of 1988 Page 1 of 14 {{ 2 }}
Legal Reasoning
The respondent Nos.3 and 4 of this 2nd Appeal were the defendant Nos.9 and 10 in the suit vide C.S No65/84 of 1981-79-I and they were the respondent Nos.9 and 10 in the 1st Appeal vide M.A. No.21/8 of 1983/82-I. The respondent Nos.1 and 2 of this 2nd Appeal were the plaintiffs in the suit vide C.S No.65/84 of 1981-79-I and they were the appellants in the 1st Appeal vide M.A. No.21/8 of 1983/82-I. 3. The suit of the plaintiffs vide C.S No.65/84 of 1981-79-I was a suit for declaration, delivery of possession and damages. 4. The case of the plaintiffs as per the averments made in their plaint was that, the suit land appertaining to Khata No.115, Plot No.455 Ac.0.97 decimals is a tank. That suit tank was under the ex-intermediary estate of the Ex-landlord Samanta Radha Prasanna Das of Balasore. On 15.03.1943, the land lord Samanta Radha Prasanna Das granted three sets of Amalnama patta in respect of that Ac.0.97 decimals of Plot No.455 having 1/3rd share therein for each set of Amalnama patta. Babu Jena and Golak Jena were granted 1/3rd share from that suit Plot No.455 through one set of Amalnama patta vide Ext.2 by the Ex-landlord Samanta Radha Prasanna Dash. 5. After getting 1/3rd interest/share from the suit tank vide Plot No.455 through Amalnama patta dated 15.03.1943 vide Ext.2 from the S.A No.188 of 1988 Page 2 of 14 {{ 3 }} Ex-landlord Samanta Radha Prasanna Dash, the said Babu Jena and Golaka Jena were enjoying the suit tank. Subsequent thereto, Babu Jena died issuless. Thereafter Golaka Jena died leaving behind his wife Gedi Bewa and one son i.e. Krutibash. After the death of Babu and Golaka, Gedi Bewa and Krutibash being their successors, they were enjoying 1/3rd interest of Babu Jena and Golaka Jena in the suit tank. While Gedi Bewa and Krutibash were enjoying their 1/3rd interest in the suit tank, they transferred their said 1/3rd interest i.e. Ac.0. decimals out of Ac.0.97 decimals of suit plot No.455 to the plaintiffs by executing and registering the sale deed vide Ext.1 on dated 26.11.1951. After purchasing the said 1/3rd share of Gedi and Krutibash in the suit tank, the plaintiffs possessed the same and excavated that tank and reared fish therein. But, suddenly on 16.05.1979, the defendant Nos.1 to 8 damaged to the northern side ridge of the suit tank and forcibly caught the fish from the suit tank. For which, the plaintiffs approached the civil court by filing the suit vide C.S. No.65/84 of 1981-79-I against the defendants praying for declaration of their right, title and interest over the suit plot No.455 and for delivery of possession of their 1/3rd share of the suit tank and also for damages. S.A No.188 of 1988 Page 3 of 14 {{ 4 }} 6. Having been noticed from the court, in the suit vide C.S. No.65/84 of 1981-79-I filed by the plaintiffs, the defendant Nos.1 to 8 contested the same by filing their written statements after taking their stands inter alia therein that: The Ex-landlord of the suit land i.e. Samanta Radha Prasanna Das had not issued any Amalanama patta in respect of the suit plot No.455 in favour of Babu Jena and Golak Jena. But the Ex-landlord Samanta Radha Prasanna Das had granted an Amalanama patta in respect of the entire suit plot No.455 in their favour on dated 11.08.1941 and after getting the entire suit plot No.455 through Amalnama patta on dated 11.08.1941 from the Ex-landlord, they (defendant Nos.1 to 8) have been possessing and enjoying the entire suit tank vide plot No.455, in which Babu Jena and Golaka Jena had no interest. For which, Gedi Bewa and Krutibash as well as the plaintiffs have no interest in the suit plot No.455. It was the specific case of the defendant Nos.1 to 8 in their written statement was that, the so-called Amalnama patta dated 15.03.1943 vide Ext.2 relied upon by the plaintiffs said to have been issued in favour of the vendors of the plaintiffs i.e. Babu Jena and Golaka Jena in respect of 1/3rd share of the suit plot No.455 is a forged and fabricated Amalnama patta. Through the said forged and fabricated Amalnama patta, neither the predecessors of the vendors of the plaintiffs nor the vendors of the plaintiffs or the plaintiffs are entitled to get any interest in the suit plot Page 4 of 14 S.A No.188 of 1988 {{ 5 }} No.455. They (defendants) are the owners of the whole suit plot No.455, but the plaintiffs have no interest in the same. Therefore, the suit of the plaintiffs is liable to be dismissed. The defendant Nos.9 and 10 were set ex-parte. 7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 7 numbers of issues were framed by the trial court in C.S. No.65/84 of 1981-79-I and the said issues are: Issues “1. Have the plaintiffs any cause of action to bring the suit? 2. Is the suit maintainable in the present for? 3. Is the suit bad for non-joinder of parties? 4. Is the Amalnama patta genuine? 5. Have the plaintiffs any right, title and interest over the disputed land or tank? 6. Is the suit maintainable for non-payment of proper court fee and for proper jurisdiction of this court? 7. What relief, if any, the plaintiffs are entitled to?” 8. In order to substantiate the aforesaid reliefs sought for by the plaintiffs against the defendants, they (plaintiffs) examined 6 witnesses from their side including the plaintiff No.1 as P.W.1 and relied upon several documents on their behalf vide Exts.1 to 5. S.A No.188 of 1988 Page 5 of 14 {{ 6 }} On the contrary, the contesting defendant Nos.1 to 8 examined 5 witnesses from their side including the defendant No.6 as D.W.1 and relied upon series of documents on their behalf vide Ext.A to D. After conclusion of hearing and on perusal of the materials and evidence available in the record, the learned trial court answered all the issues except issue No.6 against the plaintiffs and in favour of the defendants and basing upon the findings and observations made by the trail court in the issues against the plaintiffs, the trial court dismissed the suit of the plaintiffs vide C.S. No. 65/84 of 1981-79-I on contest against the defendant Nos.1 to 8 and Ex-parte against the defendant Nos.9 & 10 vide its Judgment and decree dated 15.12.1981 and 22.12.1981 respectively assigning the reasons that, the so called Amalnama patta vide Ext.2 relied upon by the plaintiffs in respect of the suit land is not a genuine one, but, whereas the Amalnama patta vide Ext.B relied upon by the defendants in respect of the suit land is genuine one. For which, the plaintiffs have no interest at all in the suit land. On being dissatisfied with the aforesaid Judgment and decree of the dismissal of the suit vide C.S. No.65/84 of 1981-79-I of the plaintiffs passed by the trial court, they (plaintiffs) challenged the same by preferring the 1st Appeal vide M.A. No.21/8 of 1983/82-I being the appellants against the defendants by arraying them (defendants) as respondents. S.A No.188 of 1988 Page 6 of 14 {{ 7 }} After hearing from both the sides, the 1st Appellate Court allowed that 1st Appeal vide M.A. No.21/8 of 1983/82-I of the appellants (plaintiffs) on contest against the respondents (defendants) and set aside the Judgment and decree of dismissal of the suit passed by the trial court and declared that, the plaintiffs are the owners in respect of 1/3rd share i.e. in respect of Ac.0. decimals from the northern side of suit plot No.455 out of Ac.0.97 decimals and they (plaintiffs) be put in possession on the same through the process of the court vide its Judgment and decree dated 17.03.1988 and 30.03.1988 respectively. On being aggrieved with the aforesaid Judgment and decree passed by the 1st Appellate Court in M.A. No.21/8 of 1983/82-I against the defendant Nos.1 to 8 and in favour of the plaintiffs, they (defendant Nos.1 to 8) challenged the said Judgment and decree of the 1st Appellate Court by preferring this 2nd Appeal being the appellants against the plaintiffs by arraying them (plaintiffs) as respondent Nos.1 and 2 and also arraying the defendant Nos.9 and 10 as respondent Nos.9 and 10. 9. This 2nd Appeal has been admitted vide Order No.3 dated 29.09.1988 to adjudicate the substantial questions of law i.e. the correctness of the findings and observations of the 1st Appellate Court i.e. creation of interest of the plaintiffs in the suit plot No.455 on the basis of the Amalnama patta vide Ext.2 issued by the Ex-landlord in favour of the S.A No.188 of 1988 Page 7 of 14 {{ 8 }} predecessors of the vendors of the plaintiffs followed by the payment of rent by them (plaintiffs) to the Government.
Legal Reasoning
I have already heard from the learned counsels of both the sides. In support of the Judgment and decree of the 1st Appellate Court, the learned counsel for the respondent Nos.1 and 2 (plaintiffs) relied upon the following decisions: (I) (II) (2020) 19 Supreme Court Cases 57—Nazir Mohamed vs. J. Kamala & Others. (2018) 18 Supreme Court Cases 317—Illoth Valappil Ambunhi (dead) by legal representatives Vs. Kunhambu Karanavan. (III) AIR 1958 Orissa 26—Ramakrushna Mohapatra and Others Vs. Gangadhar Mohapatra and Others. It appears from the records of the trial court and as well as the 1st Appellate Court that, on the basis of Amalnama patta vide Ext.2 in favour of Babu Jena and Golaka Jena in respect of 1/3rd share of suit tank vide plot No.455 and the sale deed vide Ext.1 executed by successors of Babu Jena and Golaka Jena i.e. Gedi and Krutibash in favour of the plaintiffs, they (plaintiffs) have been paying rent to the Government in respect of their 1/3rd share of suit plot as per Ext.3 series by mutating the suit plot into their names on the basis of Exts.2 and 1 since the year, 1953 without any objection to their payment of rent by the defendants. One of the contesting defendant i.e. Bhanu Charan Jena (defendant No.1) has been examined as P.W.3 from the side of the plaintiffs and the S.A No.188 of 1988 Page 8 of 14 {{ 9 }} said defendant No.1 (P.W.3) has deposed in his evidence by stating that, “he was in possession of Ext.2 (Amalanama patta) and he has handed it over to the plaintiffs. So, Ext.2 (Amalanama patta) has been filed and proved by the plaintiffs after bringing the same from proper lawful custody. The said defendant No.1 (P.W.3) has also deposed that, Gedi Bewa and Krutibash had 1/3rd share in the suit tank vide plot No.455 being the successors of Babu Jena and Golaka Jena.” The plaintiffs have been paying rent in respect of their 1/3rd share of the suit plot through proper rent receipts to the Government since the year, 1953 without any objection to the same by the defendants. The aforesaid payment of rent to the Government by the plaintiffs in respect of their purchased 1/3rd share from the suit plot No.455 after mutating the same to their names since the year, 1953 after abolition of ex-intermediary system on the basis of preparation of tenancy ledger and R.o.R in their favour is going to show that, the after abolition of the ex- intermediary system, the state has recognized the tenancy of the plaintiffs in respect of their 1/3rd share in the suit tank vide plot No.455. The law on this aspect has already been clarified by the Hon’ble courts in the ratio of the following decision: 2014(II)CLR1217—Susanta Kumar Jena & Another Vs. Smt. Basanti Sethi & Others—Tenancy—Creation of— S.A No.188 of 1988 Page 9 of 14 {{ 10 }} Abadjogya Anabadi land recorded in the name of State of Orissa. in “Claim of lease by the Ex-intermediary in favour of the name of ledger stood Kameswar—Tenants Kameswar and State accepted rent from him after vesting. Kameswar sold land to G in 1966 and G sold a portion of it to F in the year1978. A (who was the widow of F) sold the land purchased by her husband to O.P. No.1 in the year, 1983. Again, G sold portions of his purchased land to O.P. Nos.1 and 2 in the year, 1983. the consolidation operation Dispute raised during challenging the title of “K” and the transferees. Held, since Kameswar was paying rent from the date of operation of the tenancy ledger and thereafter, the tenants of respondents (O.P. Nos.1 and 2) from the date of their purchase and subsequent thereto by respondent Nos.1 and 2 to the State Government after vesting, it clearly substantiated that, tenancy had been created in favour of Kameswar even in absence of any proof of any original lease. Once tenancy was created in favour of Kameswar and the State after vesting recognized his tenancy, right accured in favour of respondents (O.P. Nos.1 & 2) to continue as recorded tenants and they were entitled to enjoy the disputed plot in question.” Here in this suit at hand, when the plaintiffs have been paying rent in respect of their 1/3rd share of the suit tank vide plot No.455 to the Government since the date of preparation of the tenancy ledger and R.o.R in their favour through mutation as per Ext.3 series then, in view of the propositions of law enunciated in the ratio of the aforesaid decision, S.A No.188 of 1988 Page 10 of 14 {{ 11 }} tenancy of the plaintiffs in the suit plot No.455 had been created after vesting due to the recognition of their tenancy by the State through acceptance of rent from them directly since the year, 1953. When the names of the plaintiffs have been continuing as the recorded owners of the suit tank vide plot No.455 in respect of their 1/3rd share therein, for which, they (plaintiffs) are entitled to enjoy the suit tank in respect of their 1/3rd share. Therefore, it cannot at all be held that, the findings and observations made by the 1st Appellate Court about the creation of tenancy of the plaintiffs in the suit tank vide plot No.455 in respect of their 1/3rd share therein is erroneous. As the suit plot No.455 Ac.0.97 decimals is a tank, for which, I thought it proper to clarify the components of a tank and its nature and character through the following decisions of the Hon’ble Courts: (I) AIR 1957 (Patna) 278—Sobharam Mahato Vs. Raja Mahton & Others “Tank-All the following three together namely, (i) the underground or the land underneath, on which the water is stored, (ii) the embankment or the bandh which serves the purpose of keeping the water confined within its boundary and (iii) the bed or pet of the tank, is known as tank.” (II) 2022 (1) CLR-25 Anu Charan Swain Vs. Prahallad Swain (Para-8) “TANK—Its nature—to be not partible.” S.A No.188 of 1988 Page 11 of 14 {{ 12 }} When it is the undisputed case of the parties that, the suit plot No.455 Ac.0.97 decimals is a tank and when it is the settled propositions of law that, a tank is impartible/indivisible in nature, because a tank containing water cannot be divided physically through measurement and when the embankment or the Bandha of the tank is also impartible being included within tank, then at this juncture, the final findings of the 1st Appellate Court that the plaintiffs are declared as owners with respect to Ac.0. decimals land from the northern side out of Ac.0.97 decimals of the disputed plot No.455 and they (plaintiffs) be put in possession of the said Ac.0. decimals of land from the northern side out of Ac.0.97 decimals through the process of the court cannot be sustainable under law. 10. As per the discussions and observations made above, when it is held that, the suit plot No.455 Ac.0.97 decimals is a tank, in which, the plaintiffs have 1/3rd share and the physical division of the suit tank between the parties in their share wise is impossible, then at this juncture, the Judgment and decree passed by the 1st Appellate Court declaring that, the plaintiffs are the owners in respect of 1/3rd share of suit plot No.455 i.e. in respect of Ac.0. decimals out of Ac.0.97 decimals cannot be unsustainable under law. S.A No.188 of 1988 Page 12 of 14 {{ 13 }} But, whereas, the Judgment and decree passed by the 1st Appellate Court entitling the plaintiffs to get Ac.0. decimals of land from the northern side of suit plot No.455 out of Ac.0.97 decimals and they (plaintiffs) be put in possession of that Ac.0. decimals of land from the northern side of that suit plot No.455 through the process of court cannot be sustainable under law. 11. When it is held that the Judgment and decree passed by the 1st Appellate Court in toto is not sustainable under law and the same is interferable to a limited extent as clarified above through this appeal filed by the appellants, for which, there is some merit in the appeal of the appellants. Therefore, this 2nd Appeal filed by the appellants is to be allowed in part. 12. In the result, the appeal filed by the appellants (defendant Nos.1 to 8) is allowed in part on contest, but without cost. The Judgment and decree dated 17.03.1988 and 30.03.1988 respectively passed by the 1st Appellate Court in M.A. No.21/8 of 1983/82-I entitling the plaintiffs (appellant Nos.1 and 2 in the 1st Appeal) to get Ac.0. decimals of land from the northern side out of Ac.0.97 decimals of suit tank plot No.455 and they (plaintiffs) be put in possession S.A No.188 of 1988 Page 13 of 14 {{ 14 }} on that Ac.0. decimals from the northern side of suit tank through the process of the court are set aside. But, whereas the Judgment and decree passed by the 1st Appellate Court in M.A. No.21/8 of 1983/82-I declaring that the plaintiffs are the owners in respect of 1/3rd share of suit plot No.455 is confirmed. The Judgment and decree of the dismissal of the suit of the plaintiffs vide C.S No65/84 of 1981-79-I passed by the trial court are set aside. The suit be and the same vide C.S No65/84 of 1981-79-I filed by the plaintiffs is decreed in part on contest against the defendant Nos.1 to 8 and ex-parte against the defendant Nos.9 and 10. The right, title and interest of the plaintiffs in respect of their 1/3rd share in the suit tank Plot No.455 is declared. As the plaintiffs have been declared as the co-owners of the suit tank vide Plot No.455 with the defendants and as the suit joint tank cannot be divided physically in share wise being impartible in nature, for which, the prayers of the plaintiffs for delivery of possession to their 1/3rd share from the suit tank as well as damages are refused. Orissa High Court, Cuttack. 24th November, 2023//Rati Ranjan Nayak// Junior Stenographer S.A No.188 of 1988 (A.C. Behera), Judge. Page 14 of 14