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A.F.R IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.94 of 1990 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Sarangadhar Mohapatra (dead), …. Appellants being his LRs and Others Sureswar Barik & Others …. Respondents -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr. Budhiram Das, Advocate. For Respondents - Mr. A.K. Mishra, Advocate. CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :24.01.2024:: Date of Judgment :08.04.2024 A.C. Behera, J. This Second Appeal has been preferred against the part reversing judgment. 2. The appellants and the respondents Nos.1 and 2 of this 2nd Appeal were the plaintiffs before the trial court in the suit vide T.S. No.100 of 1981. The respondent Nos.3 & 4 of this 2nd Appeal were the defendants before the trial court in the suit vide T.S. No.100 of 1981. SA No.94 of 1990 Page 1 of 19 {{ 2 }} The respondent No.4 of this 2nd Appeal was the appellant before the 1st Appellate Court in the 1st Appeal vide T.A. No.7 of 1987. The respondent Nos.1 and 2 as well as the appellants of this 2nd Appeal were the respondents before the 1st Appellate Court in the 1st Appeal vide T.A. No.7 of 1987. 3.
Legal Reasoning
The suit of the plaintiffs was a suit for declaration of title and possession. 4. According to the plaintiffs, all the parties to the suit are guided and governed by Mitakshara School of Hindu Law. As per the pleadings of the plaintiffs, Khatu Khuntia was their common ancestor. That Khatu Khuntia died leaving behind his one son and one daughter i.e. Gopinath Khuntia and Gelhi Khuntia. Gopinath Khuntia died leaving behind his wife Duli and two sons namely Rama Chandra Khuntia and Krushna Chandra Khuntia. Both the sons of Gopinath Khuntia i.e. Rama Chandra Khuntia & Krushna Chandra Khuntia pre-deceased Duli Khuntia during their respective bachelorhood. Thereafter, Duli Khuntia expired. The daughter of Khatu Khuntia i.e. Gelhi died leaving behind her son Babu. Babu died leaving behind his son Banamali (defendant No.2). SA No.94 of 1990 Page 2 of 19 {{ 3 }} 5. In order to have a better appreciation and so also for the just decision, the aforesaid genealogy of Khatu Khuntia is depicted hereunder: Genealogy Khatu Khuntia Gopinath Gelhi Duli (wife) Babu Banamali (defendant No.2) Ramachandra Krushna Chandra The wife of Gopinath Khuntia i.e. Duli Khuntia was the daughter of late Rama Chandra Barik of village Tirapada. Rama Chandra Barik died leaving behind his son Somnath and daughter Duli. Somnath died leaving behind his one son Bhagaban. Bhaban died leaving behind his two sons namely, Sureswar and Pratap i.e. plaintiff Nos.1 & 2. The aforesaid genealogy of Ramachandra Barik is depicted hereunder: SA No.94 of 1990 Page 3 of 19 {{ 4 }} Genealogy Ramachandra Somonath Duli Bhagaban Sureswar (Son) Pratap (Son) (Plaintiff No.1) (Plaintiff No.2) Plaintiff Nos.3(a) to 3(e) are the purchasers of the suit properties. The suit properties were originally belonged to Gopinath Khuntia. As per the aforesaid genealogy, after the death of Gopinath Khuntia and his two sons, the suit properties devolved upon his wife Duli Khuntia. After the death of Duli Khuntia, the suit properties devolved upon her father Ramachandra Barik. After the death of Ramachandra Barik, the suit properties devolved upon Somanath Barik. After the death of Somanath Barik, the suit properties devolved upon Bhagaban Barik. After the death of Bhagaban Barik, the suit properties devolved upon plaintiff Nos.1 and 2. Ramachandra Barik was possessing the suit properties described in Schedule “B” of the plaint. While Ramachandra Barik was possessing all the properties left by his daughter Duli Khuntia including the suit properties being the owner thereof, sold some properties thereof to Janardan Gajendra Mohapatra and Debenarayan Gajendra Mohapatra and Page 4 of 19 SA No.94 of 1990 {{ 5 }} the properties those were sold to Janardan Gajendra Mohapatra and Debenarayan Gajendra Mohapatra have already been recorded separately in their names. After the death of Ramachandra Barik, Somanath Barik and Bhagaban Barik, the plaintiff Nos.1 and 2 i.e. Sureswar Barik and Pratap Chandra Barik inherited and possessed the same as the owners thereof and the part of their inherited properties sold to Hema Singh and Jagannath Marandi. All the properties (those were inherited by Ramachandra Barik from Duli Barik) have been shown in the schedule “C” of the plaint. Schedule “B” properties are the suit properties, those are the rest properties after their aforesaid sell. The defendant No.1 is a clever person in the locality. He (defendant No.1) approached the plaintiffs and requested them to sell the suit properties in a very low price, to which, the plaintiff Nos.1 and 2 refused. So, the defendant No.1 tried to create disturbances in the possession of the plaintiff Nos.1 and 2 over the suit properties and tried to compel them (plaintiffs) to sale the suit properties to him. At the time of harvesting of the crops from the suit properties in the year 1980-81 raised by them (plaintiff Nos.1 and 2) thereon, the defendant No.1 with some of his supporters created disturbances in the possession of the plaintiff Nos.1 SA No.94 of 1990 Page 5 of 19 {{ 6 }} and 2 over the suit properties. For which, without getting any way, the plaintiff Nos.1 and 2 approached the Civil Court by filing the suit vide T.S. No.100 of 1981 against the defendant No.1 arraying their purchasers as plaintiff Nos.3(a) to 3(e) against the defendant No.1 and the defendant No.2 as the proforma defendant praying for declaration of their title and possession over the suit properties and also to confirm their possession thereon and in alternative, if they are found to be dispossessed during the pendency of the suit by the defendant No.1, then for recovery of possession and to injunct the defendant No.1 permanently from interfering into their possession over the suit properties along with other relief(s), to which, they (plaintiffs) are entitled for. 6. Having been noticed from the trial court in T.S. No.100 of 1981, the defendant No.1 contested the same denying the averments made by the plaintiffs in their plaint by taking his stands therein that: The suit of the plaintiffs is not maintainable. The plaintiffs have no cause of action for filing of the suit against him. The plaintiffs have no locus standi to file the suit. The civil court has no jurisdiction to entertain the suit of the plaintiff being barred under Section 67 of the OLR Act. He (defendant No.1) has been cultivating the suit properties described in Schedule “B” as tenant under Ramachandra Khuntia since last 22 years SA No.94 of 1990 Page 6 of 19 {{ 7 }} and had been paying the Bhag dues to the said Ramachandra Khuntia till his death in the year 1979. As Ramachandra Khuntia died without leaving any heir, for which, he (defendant No.1) is not paying any Sanja or Bhag dues to anyone, but, he has been paying the land revenue of the suit properties to the Government and has been obtaining the rent receipts. He (defendant No.1) filed a petition under Section 15(d) of the OLR Act against the plaintiffs along with Banmali Patra, Lokanath Mohapatra, Sarangadhar Mohapatra, Nilamadhab Mohapatra, Mahesh Chandra Mohapatra, Dusmanta Mohapatra and State of Orissa in the court of Tahasildar, Baripada in respect of the suit properties. In view of his such petition under Section 15 of the OLR Act, the Civil Court has got no jurisdiction to decide the suit, because only the Tahasildar has the jurisdiction to adjudicate the disputes relating to the same. According to him (defendant No.1), after the death of Ramachandra Khuntia, the suit properties have been escheated to the State of Orissa. The plaintiffs have sold some properties to Hema Singh and Jagannath Marandi illegally. He (defendant No.1) has never approached to the plaintiff Nos.1 and 2 to sell the suit properties, for which, the question of offering a very low price by him (defendant No.1) SA No.94 of 1990 Page 7 of 19 {{ 8 }} to the plaintiffs does not arise. He (defendant No.1) has got the right to cultivate the suit properties as a tenant and he had been cultivating the same as a tenant even after the death of Ramachandra Khuntia till yet. The plaintiffs have no right, title, interest and possession over the suit properties. He (defendant No.1) is ready and willing to pay the Bhag dues to the person, whose title over the suit properties will be declared in the OLR case No.25 of 1982 filed by him in the court of Tahasildar Baripada. For which, the suit of the plaintiffs is liable to be dismissed against him (defendant No.1). 7. The defendant No.2 filed his written statement taking his stands denying the claim of the defendant No.1 as the Bhag tenant of the suit properties. His specific case was that, the defendant No.1 filed a case under OLR Act claiming him as Bhag tenant in the suit properties, but his case has been rejected by the competent court. He (defendant No.2) was the exclusive owner by inheriting the suit properties exclusively and he has sold some of his inherited suit properties to the plaintiff Nos.3(a) to 3(e), for which, the title of the plaintiff Nos.3(a) to 3(e) over the suit properties may be declared, but not the title of the plaintiff Nos.1 and 2. So, the reliefs claimed in the plaint by the plaintiffs are to be granted in SA No.94 of 1990 Page 8 of 19 {{ 9 }} favour of the plaintiff Nos.3(a) to 3(e), but not in favour of the plaintiff Nos.1 and 2. 8. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 8 numbers of issues were framed by the trial court in the suit vide T.S. No.100 of 1981 and the said issues are: ISSUES Was the defendant No.1 tenant under late Ramachandra Khuntia, Have the plaintiffs any cause of action? Is the suit maintainable? Have the plaintiffs got locus standi to file the suit? Is the suit barred under Section 67 of the OLR Act and if this Court 1. 2. 3. 4. has jurisdiction to try the suit? 5. the previous recorded owner of the suit land? 6. Are the plaintiff Nos.1 and 2 and proforma defendant No.2 legal heirs of late Ramachandra Khuntia and were in possession of the suit land and whether the sales by them to other plaintiff Nos.3(a) to 3(e) are valid and binding? 7. 8. Have the plaintiffs any right, title and interest in the suit land? To what other reliefs the plaintiffs are entitled? 9. In order to substantiate the aforesaid reliefs sought for by the plaintiffs against the defendant No.1, they (plaintiffs) examined 7 numbers of witnesses from their side including the plaintiff No.3(e) as P.W.7 and relied upon series of documents on their behalf vide Exts.1 to 13. But, on the contrary, the contesting defendant No.1 examined 3 witnesses from his side including him as D.W.1 and proved two documents vide Exts.A & B on his behalf. SA No.94 of 1990 Page 9 of 19 {{ 10 }} 10. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues in favour of the plaintiff Nos.3(a) to 3(e) and against the defendant No.1 and basing upon the findings and observations made by the trial court in all the issues in favour of the plaintiff Nos.3(a) to 3(e) and against the defendant No.1 along with plaintiff Nos.1 and 2 and defendant No.2, the trial court passed the Judgment and decree of that suit vide T.S. No.100 of 1981 on contest on dated 13.01.1987 and 04.02.1987 respectively and declared the right, title, interest and possession of the plaintiff Nos.3(a) to 3(e) over the suit properties described in the Schedule “B” of the plaint and confirmed their possession on the same and injuncted the defendant No.1 permanently from interfering into the peaceful possession of the plaintiff Nos.3(a) to 3(e) in the suit properties assigning the reasons that, the defendant No.1 had filed an OLR case under Section 15 (1)(d) of the OLR Act, 1960 vide OLR Case No.25 of 1982 being the petitioner against the plaintiff Nos.1 and 2 and proforma defendant No.2 in order to declare him (defendant No.1) as Bhag tenant in the suit properties. But, as per the Judgment passed on dated 14.07.1982 in that OLR Case No.25 of 1982, the prayer of the defendant No.1 to declare him as SA No.94 of 1990 Page 10 of 19 {{ 11 }} Bhag tenant in the suit properties was rejected by the Addl. Tahasildar, Baripada on the ground that, the prayer of the defendant No.1 is not coming within the purview of Section 15(1)(d) of the OLR Act, 1960, for which, the Addl. Tahasildar, Baripada held in that case that, Tahasildar has no jurisdiction to decide the said issue raised before him in that OLR Case No.25 of 1982, therefore, the Addl. Tahasildar, Baripada dismissed that OLR Case No.25 of 1982 of the defendant No.1 giving specific observations therein that, the matter in dispute between the parties is to be decided by the Civil Court to ascertain the rightful owner of the suit properties. The trial court also assigned the reasons that, no document was filed and proved on behalf of the defendant No.1 to establish him as a Bhag tenant of the suit properties. He (defendant No.1) had preferred an OLR appeal before the S.D.O. against the above order of Addl. Tahasildar, Baripada passed in OLR Case No.25 of 1982, but that appeal has also been dismissed and against the said dismissal order passed in the OLR Appeal, he (defendant No.1) had filed a revision, but, that revision has also been dropped. On the other hand, it was found that, the plaintiff Nos.1 and 2 and defendant No.2 are the LRs of late Ramachandra Barik and they were in SA No.94 of 1990 Page 11 of 19 {{ 12 }} possession over all the properties left by Ramachandra Barik including the suit properties and they were also in possession over the suit properties. They have sold the same to the defendant Nos.3(a) to 3(e) through the sale deeds vide Exts.1 and 2. For which, the Civil Court has jurisdiction to try the suit and to declare the right, title, interest and possession of the plaintiff Nos.3(a) to 3(e) over the suit properties and to injunct the defendant No.1 permanently from interfering into the possession of the Plaintiff Nos.3(a) to 3(e) over the suit properties. 11. On being dissatisfied with the aforesaid Judgment and Decree dated 13.01.1987 and 04.02.1987 respectively passed by the trial court in T.S. No.100 of 1981 in favour of the plaintiff Nos.3(a) to 3(e) and against the defendant No.1, he (defendant No.1) challenged the same by preferring the 1st Appeal vide T.A. No.7 of 1987 before the 1st Appellate Court being the appellant against the plaintiffs along with the proforma defendant No.2 by arraying them as respondents. After hearing from both the sides, the 1st Appellate Court allowed that 1st Appeal vide T.A. No.7 of 1987 preferred by the defendant No.1 in part on contest as per its Judgement and decree dated 21.02.1990 and 03.03.1990 respectively and set aside to the findings and observations made by the trial court in issue Nos.4,5 and 6 and though decreed the suit SA No.94 of 1990 Page 12 of 19 {{ 13 }} of the plaintiff Nos.3(a) to 3(e) in part declaring their right, title and interest over the suit properties, but set aside the decree of confirmation of possession of the plaintiff Nos.3(a) to 3(e) over the suit properties as well as the decree of permanent injunction in their favour and against the defendant No.1 by clarifying that, the question of possession as well as the existence of relationship of landlord and tenant as claimed by the defendant No.1 is left open to be decided by the revenue court as provided under the OLR Act, as the said matter is coming within the purview of revenue courts jurisdiction being outside the jurisdiction of the civil court, because the defendant No.1 is claiming himself as the Bhag tenant of the suit properties. 12. On being aggrieved with the aforesaid part Judgment and Decree dated 21.02.1990 and 03.03.1990 respectively passed by the 1st Appellate Court in T.A. No.7 of 1987 partly in favour of the plaintiff Nos.3(a) to 3(e) and partly in favour of the defendant No.1, the plaintiff Nos.3(a) to 3(e) challenged the same by preferring this 2nd Appeal being the appellants against the defendant No.1 arraying the plaintiff Nos.1 and 2 and defendant No.2 as respondents. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e. SA No.94 of 1990 Page 13 of 19 {{ 14 }} 1. Whether in view of the admitted fact that, OLR Case filed under Section 15(1)(d) of the OLR Act, 1960 by the defendant No.1 and the appeal as well as revision arising therefrom have been dismissed, then, whether the lower appellate court acted illegally in holding that, the relief for confirmation of possession and permanent injunction cannot be granted by the Civil Court? 2. Whether the Civil Court jurisdiction is barred under Section 67 of the OLR Act to grant the relief of confirmation of possession and permanent injunction?
Legal Reasoning
I have already heard from the learned counsels of both the sides. 13. It is forthcoming from the certified copy of the final order passed in OLR Case No.25 of 1982 by the Addl. Tahasildar, Baripada under Section 15(1)(d) of the OLR Act, 1960 that, the defendant No.1 was the sole petitioner and the plaintiff Nos.1 and 2 were the Opposite Parties in that OLR Case No.25 of 1982. The Addl. Tahasildar, Baripada has rejected that OLR Case No.25 of 1982 of the petitioner (defendant No.1) assigning the reasons that, the petitioner has filed that OLR Case No.25 of 1982 intending to identify the landlord. The OLR Act does not empower any revenue court to decide any dispute regarding the identity of a landlord, although it has been envisaged in Section 16 of the OLR Act to decide a dispute regarding the identity of a tenant and as the petitioner in his petition has indirectly denied the rights and title of the SA No.94 of 1990 Page 14 of 19 {{ 15 }} Opposite Parties over the suit land, then, obviously, the case has been filed by the petitioner one year after filing of the civil suit in the court of the Sub-Judge, Baripada with a probable intention to oust the power of the civil court in that civil suit, for which, it is held that, the matters indicated in the petition of the petitioner is beyond the purview of the provisions of Section 15(1)(d) of the OLR Act. Therefore, the Addl. Tahasildar, Baripada held that, he has no jurisdiction to decide the issue under the said Section or any other provisions of the Act. Therefore, the Addl. Tahasildar, Baripada held that, the petition under Section 15(1)(d) of the OLR Act vide OLR Case No.25 of 1982 filed by the petitioner is not maintainable and as a result, the same is rejected and as the revenue court has no jurisdiction to identify the landlord and as there is no such provision in the OLR Act for identification of the landlord, then the matter in dispute between the parties is to be decided in the civil court to clarify, who is the rightful owner of the suit properties and the case can be adjudicated properly by the Sub-Judge in T.S. No.100 of 1981. 14. The defendant No.1 has admitted in his evidence before the Trial Court during the course of adducing evidence as D.W.1 that, against the final order passed in OLR Case No.25 of 1982 by the Addl. Tahasildar, SA No.94 of 1990 Page 15 of 19 {{ 16 }} Baripada on dated 14.07.1982 rejecting his petition under Section 15(1)(d) of the OLR Act, he (defendant No.1) had preferred an appeal before the S.D.O, Baripada, but, that appeal was dismissed and then, he had filed a revision before the A.D.M. Baripada, but, that revision has also been dismissed and after dismissal of that revision, he (D.W.1) has not approached any other higher forums under OLR Act. As such, after dismissal of his revision before the A.D.M, Baripada, the final order passed on 14.7.1982 in OLR case No.25 of 1982 against the defendant No.1 has already been reached in its finality. So, without challenging the dismissal order of the revision of the defendant No.1 passed by the A.D.M., Baripada under OLR Act before any other higher forums under OLR Act, he (defendant No.1) has abided the final order passed on dated 14.07.1982 in OLR case No.25 of 1982 by the Addl. Tahasildar Baripada. On this aspect, the propositions of law has already been clarified by the Hon’ble Court in the ratio of the following decision: 2016 (Supp-II) OLR 1022: Bharat Petroleum Corporation Limited Vs. Smt. Sugyani Kumar Deo & Others. Effect of non-filing of an appeal against a decree is that, it attains finality. SA No.94 of 1990 Page 16 of 19 {{ 17 }} When as per the final findings of the OLR authorities, starting from the 1st Court up to the revisional Court, the matter in dispute relating to the parties concerning the suit properties is required to be adjudicated before the civil Court in the suit vide T.S. No.100 of 1981 and when the aforesaid findings made by the OLR Authorities starting from the 1st Court up to the revisional Court is binding upon the parties including defendant No.1 and when as per the final findings made by the Courts under OLR Act, the disputes raised by the defendant No.1 are properly ad-judiciable before the Civil Court in the suit vide T.S. No.100 of 1981, but not before any Revenue Courts, then, at this juncture the findings and observations made by the 1st Appellate Court in its judgment and decree passed in T.A. No.7 of 1987 in setting aside the findings made by the Trial Court in issue Nos. 4,5 and 6 against the defendant No.1 by holding/observing that, the question relating to the possession as well as the existence of relationship as landlord and tenant claimed by the defendant No.1 left open to be decided by the Revenue Court as provided under the OLR Act cannot be sustainable under law. 15. Therefore, in view of the final findings made by the Revenue Authorities in OLR case No.25 of 1982 vide order dated 14.7.1982 and confirmation to the same by the higher forums under OLR Act i.e. by the SA No.94 of 1990 Page 17 of 19 {{ 18 }} Appellate Court and Revisional Court and acceptance to the same by the defendant No.1, the jurisdiction of the civil Court for granting the relief of confirmation of possession and permanent injunction in respect of the suit properties in favour of the plaintiff Nos.3(a) to 3(e) against the defendant No.1 is not barred under Section 67 of the OLR Act. For which, the 1st Appellate Court had no authority or jurisdiction to set aside the judgment and decree passed by the Trial Court in the suit vide T.S. No.100 of 1981 i.e. to the decree of confirmation of possession of the plaintiff Nos. 3(a) to 3(e) over the suit properties as well as to the permanent injunction against the defendant No.1 after confirming the declaration of title in favour of the plaintiff No 3(a) to 3(e) over the suit properties. 16. As per the discussions and observations made above, when it is held that, the 1st Appellate Court had no jurisdiction or authority under law to set aside any part of the judgment and decree passed by the Trial Court in T.S No.100 of 1981 but, the 1st Appellate Court should have confirmed the judgment and decree passed by the Trial Court in T.S. No.100 of 1981 in full, then at this juncture, there is justification under law for making interference with the judgment and decree passed by the SA No.94 of 1990 Page 18 of 19 {{ 19 }} 1st Appellate Court through this Second Appeal filed by the appellants {plaintiff Nos. 3(a) to 3(e)}. 17. So, there is merit in this 2nd Appeal of the appellants (plaintiff Nos.3(a) to 3(e)). The same must succeed. 18. In result, the 2nd Appeal filed by the appellants {plaintiff Nos. 3(a) to 3(e)} is allowed on contest, but without cost. The Judgment and Decree passed by the 1st Appellate Court in T.A. No.7 of 1987 in setting aside the decree of confirmation of possession and permanent injunction passed by the Trial Court in its Judgment and Decree in T.S. No.100 of 1981 and keeping the same open for adjudication of relationship between land lord and tenant by the Revenue Court claimed by the defendant No.1 under the OLR Act is set aside. 19. Therefore, the judgment and decree passed by the Trial Court in T.S. No.100 of 1981 in favour of the plaintiff Nos. 3(a) to 3(e) (appellants of this Second Appeal) and against the defendant No.1 is confirmed/maintained/upheld as it is in its all respect. Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 10-Apr-2024 13:07:06 Orissa High Court, Cuttack. Rati Ranjan Nayak// Senior Stenographer Date:08.04.2024 SA No.94 of 1990 (A.C. Behera), Judge. Page 19 of 19