The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.188 of 1996 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) State of Orissa, through and Collector, another Cuttack -versus- …. Appellants Jutika Dei …. Respondent Appeared in this case:- For Appellants : Mr. Gyanalok Mohanty, Learned Standing Counsel For Respondent : Mr. Sachidananda Sahoo, Advocate CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing :21.07.2025 / date of judgment :31.07.2025 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment. 2. The appellants in this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.49 of 1985 and the respondents before the 1st appellate court in the 1st appeal vide T.A. No.05 of 1987. 3. The respondent in this 2nd appeal was the sole plaintiff before the trial court in the suit vide T.S. No.49 of 1985 and the appellant before the 1st appellate court in the 1st appeal vide T.A. No.05 of 1987. 4.
Legal Reasoning
The case of the plaintiff(respondent in this 2nd appeal) before the trial court in the suit vide T.S. No.49 of 1985 against the defendants, i.e., against the State and the Tahasildar, Marsaghai as per the averments made in her plaint in a nutshell was that, the suit properties described in schedule of the plaint under Khata No.61, Plot No.116 Ac.1.50 decimals in Mouza-Mahakalpada in the district of Kendrapara were under the ex-intermediary estate of the ex-landlord called as Burdhwan estate having its status as Anabadi. The plaintiff in order to meet food problem of her family applied to the ex-landlord of Burdhwan estate in order to lease out the suit properties in her favour. After accepting the request of the plaintiff, the ex-landlord of Burdhwan estate leased out the suit land in favour of the plaintiff in the year 1948 after accepting ‘salami’ from her and making demarcation of the suit properties through deputation of Amin. After receiving the suit properties on Page 2 of 19 lease in the year 1948 from the ex-landlord, the plaintiff reclaimed the suit properties and made it fit for cultivation and cultivated the same paying rent to the ex-landlord till the vesting of the ex-intermediary estate. Even after vesting of the Burdhwan estate with the Government as per Orissa Estate Abolition Act, the plaintiff continues her possession over the suit properties with the knowledge of the State and the Tahasildar, Marsaghai(defendants). Out of the suit properties, the plaintiff has been using Ac.0.95 decimals for cultivation purpose and also using the rest Ac.0.55 decimals for Dalua crop during summer season, as the said Ac.0.55 decimals out of the suit properties are low land. After vesting of the ex-intermediary estate with the Government, the plaintiff requested number of times to the Tahasildar, Marshaghari(defendant no.2) for recording the suit properties in her name and to accept the rent from her, but, instead of recording the suit properties in the name of the plaintiff, when the defendant no.2 threatened the plaintiff to disposses her from the same initiating encroachment proceeding against her(plaintiff) then, she (plaintiff) applied before the settlement authority for Page 3 of 19 recording the suit properties in her name, which is pending for disposal. As such, she(plaintiff) had/has been possessing the suit properties continuously peacefully without interruption of anybody with the knowledge of the ex-intermediary as well as defendants for more than statutory period. For which, the plaintiff is the settled raiyat of the suit village in respect of the suit properties and she(plaintiff) has acquired occupancy right over the suit properties. When, on dated 25.02.1985, the defendant no.2 (Tahasildar, Marsaghari) threatened her (plaintiff) to evict her from the suit properties, then, she(plaintiff) filed the suit vide T.S. No.49 of 1985 against the defendants seeking leave as per Sub-clause-(2) of Section 80 of the C.P.C., 1908 for filing of the suit without service of notice under Section 80 of the C.P.C. against the defendants praying for the relief(s), i.e., for a declaration that, she(plaintiff) is an occupancy raiyat in respect of the suit properties and to injunct the defendants permanently from dispossessing her from suit properties along with other relief(s), if any, under law of equity, to which, she (plaintiff) is entitled for. Page 4 of 19 5. Having been noticed from the trial court in the suit vide T.S. No.49 of 1985, the defendants filed their joint written statement denying the title of the plaintiff over the suit properties by taking their specific stands in Para No.10 of their written statement that, the suit land under Anabadi Khata No.61, Plot No.116 is Ac.1.50 decimals in village Mahakalapada. The plaintiff possessed Ac.0.95 decimals of land out of the suit Plot No.116, for which, the defendant no.2 started encroachment case against the plaintiff. The suit land is Government land and the same is very low land. The plaintiff had filed petition before him (defendant no.2) for realization of rent in respect of Ac.0.95 decimals of land out of the suit properties, but, the said petition of the plaintiff was rejected. The suit properties were never leased out by the ex- landlord of Burdhwan estate in favour of the plaintiff in the year 1948 and the plaintiff has not reclaimed the suit properties and she has not used and possessed Ac.0.95 decimals out of the suit properties for cultivation purpose and she(plaintiff) has also not used and possessed the rest land for cultivation of Dalua crop. The plaintiff had never Page 5 of 19 requested defendant no.2 for recording the suit land in her name and she(plaintiff) had not applied before the settlement authorities for recording the suit land in her name. The plaintiff is not possessing the suit properties continuously, peacefully without interruption with the knowledge of the defendants. The plaintiff is not a settled raiyat of the suit village. She (plaintiff) has no occupancy raiyati right over the suit properties. The allegations alleged by the plaintiff that, the defendant no.2 had threatened her(plaintiff) on 25.02.1985 to evict her from the suit land is false. As such, the plaintiff has no right, title, interest and possession over the suit properties. For which, the suit of the plaintiff is liable to be dismissed against the defendants. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether five numbers of issues were framed by the trial court in the suit vide T.S. No.49 of 1985 and the said issues are:- (i) Is the suit maintainable? I s s u e s (ii) Has the plaintiff got right, title, interest or possession over the suit land? (iii) Has the plaintiff any cause of action? (iv) Is the suit barred by Section 80 C.P.C. notice? Page 6 of 19 (v) What other relief, the plaintiff is entitled to? 7. In order to substantiate the aforesaid relief(s) sought for by the plaintiff against the defendants, she(plaintiff) examined three witnesses from her side including her(plaintiff) as P.W.3 and relied upon the two rent receipts vide Ext.1 and Ext.1(a). But whereas, the defendants neither examined any witness on their behalf nor proved any document from their side. 8. After conclusion of hearing of the suit vide T.S. No.49 of 1985 and on perusal of the materials and evidence available in the record, the trial court answered all the issues against the plaintiff and in favour of the defendants and basing upon the findings and observations made by the trial court in the issues against the plaintiff and in favour of the defendants, the trial court dismissed the suit of the plaintiff vide T.S. No.49 of 1985 on contest against the defendants as per its judgment and decree dated 19.12.1986 and 13.01.1987 respectively assigning the reasons that, the plaintiff has failed to establish that, the suit properties were leased out to her by the ex- Page 7 of 19 intermediary of Burdhwan estate and also has failed to prove that, she (plaintiff) is an occupancy raiyat of the suit properties, as the State has not accepted any rent from the plaintiff in respect of the suit properties after the abolition of the ex-intermediary estate of Burdhwan estate, for which, the plaintiff has no cause of action for filing the suit against defendants. Therefore, the suit of the plaintiff against the defendants is not maintainable under law. 9. On being dissatisfied with the aforesaid dismissal of the suit of the plaintiff by the trial court as per its judgment and decree dated 19.12.1986 and 13.01.1987 respectively passed in T.S. No.49 of 1985, she(plaintiff) challenged the same by preferring the 1st appeal vide T.A. No.05 of 1987 being the appellant against the defendants arraying the defendants as respondents. 10. After hearing from both the sides, learned 1st appellate court set aside the judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.49 of 1985 passed by the learned trial court as per its judgment and decree dated 28.02.1996 and 15.03.1996 respectively assigning the reasons that, when the possession of the plaintiff has been Page 8 of 19 admitted by the defendants stating that, the plaintiff was an encroacher and encroachment case was initiated against her, for which, the possession of the plaintiff over the suit properties has been established immediately before and after the date of vesting of the estate in the Government. Therefore, she(plaintiff) is deemed to be a tenant in respect of the suit properties under the State(defendant no.1) as per Section 8(1) of the Orissa Estate Abolition Act and the said possession of the plaintiff/appellant can be considered towards the creation of occupancy right of the plaintiff in the suit properties. Accordingly, after setting aside the judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.49 of 1985 passed by the trial court, the learned 1st appellate court decreed that suit vide T.S. No.49 of 1985 of the plaintiff and declared the occupancy right of the plaintiff over the suit properties and injuncted the defendants permanently from interfering with the possession of the plaintiff in respect of the suit properties. 11. On being aggrieved with the aforesaid judgment and decree dated 28.02.1996 and 15.03.1996 respectively passed in T.A. No.05 of 1987 in favour of the plaintiff and Page 9 of 19 against the defendants by the 1st appellate court, they(defendants) challenged the same preferring this 2nd appeal being the appellants against the plaintiff arraying her(plaintiff) as respondent. 12. This 2nd appeal was admitted on formulation of the following substantial questions of law, i.e., :- (i) Whether the findings and observations made by the 1st appellate court in T.A. No.05 of 1987 in setting aside the judgment and decree of the dismissal of the suit vide T.S. No.49 of 1985 passed by the trial court accepting the rent receipts vide Exts.1 and 1(a) paid during the time of ex-intermediary are genuine can be sustainable under law? (ii) Whether the judgment and decree passed by the 1st appellate court in T.A. No.05 of 1987 decreeing the suit vide T.S. No.49 of 1985 of the plaintiff(respondent) declaring that, she(plaintiff) is the occupancy raiyat over the suit properties and injuncting appellants/defendants permanently is sustainable under law? 13. I have already heard from the learned Standing Counsel for the appellants(defendants) and the learned counsel for the respondent(plaintiff). 14. When, both the above formulated substantial questions of law are interlinked according to the pleadings of the parties and judgments and decrees of the trial court and 1st appellate court, then, both the above formulated Page 10 of 19 substantial questions of law are taken up together analogously for their discussions hereunder :- It is the admitted case of both the sides that, no rent receipts has been filed or proved on behalf of the plaintiff(respondent in this 2nd appeal) showing the payment of any rent in respect of the suit properties to the Government/State after abolition of the ex-intermediary estate, i.e., Burdhwan estate. The plaintiff has neither pleaded in her pleadings nor has stated in her evidence about the payment of any rent in respect of the suit properties to the Government after vesting of the Burdhwan estate in the State. 15. On this aspect, the propositions of law has already been clarified in the ratio of the following judgments :- (i) In a case between Krushna Chandra Biswal vrs. State of Orissa : reported in (2017) 1 OJR-393— When, after vesting of the estate in the State, the ex- intermediary had not submitted ekpadia in favour of the father of the plaintiff. The so-called Hatpatta was not produced before the settlement or consolidation authorities. The plaintiff rose from deep slumber and filed the suit after a half century of the year of issuance of the alleged Hatpatta to grab Government properties. The suit of the plaintiff must fail. (ii) In a case between Premananda Das vrs. Tahasildar Sadar, Cuttack and others : reported in Page 11 of 19 of Tenant CLR-57—Recognition 2008(I) by Hatpatta(Para-7)—The petitioner has not been able to prove the fact that, the said intermediary inducted the petitioner as a tenant in the year 1944 and accepted rent from him by adducing any convincing evidence. The so-called induction of the petitioner as tenant in respect of the suit land fails. (iii) In a case between Bibhuti Bhusan Misra vrs. Raghaba Jena and others : reported in 95(2003) CLT- 85(Para-14)—That, rent receipts do not indicate plot numbers and in absence of plot numbers, it is difficult to accept such documents as rent receipts in respect of the lands in dispute. 16. Here, in this matter at hand, when, the plaintiff has specifically pleaded in her pleadings that, ex-intermediary had leased out the suit properties to her(plaintiff) in the year 1948 for cultivation purpose and she(plaintiff) had paid rent in respect of the suit land to the ex-intermediary through rent receipt vide Ext.1 and Ext.1(a), but, when the plaintiff has not filed or proved any document concerning the leasing out of the suit properties in her favour in the year 1948 and when, she(plaintiff) has not proved any Ekpadia submitted by the ex-landlord in her favour in respect of the suit properties at the time of vesting of the ex- intermediary estate with the State stating that, the plaintiff was inducted by him(ex-intermediary) in respect of the suit properties and when, the rent receipts vide Exts.1 and 1(a) relied by the plaintiff are not showing the issuance of the Page 12 of 19 same in respect of the suit plot and when, after the abolition of ex-intermediary estate, no Jamabandi has been opened in respect of the suit properties in the name of the plaintiff and when more than 30 years after the abolition of ex-intermediary estate with continuance of the RoR of the suit properties in the name of the Government/State, the plaintiff has filed the suit in the year 1985 praying for the aforesaid reliefs in her favour in respect of the suit properties, then at this juncture, by applying the principles of law enunciated in the ratio of the aforesaid decisions, it cannot be declared to the plaintiff as the occupancy raiyat over the suit properties. For which, the prayer of the plaintiff to declare her as an occupancy raiyat in respect of the suit properties must fail. Therefore, the above part of the decree passed by the learned 1st appellate court declaring the plaintiff as occupancy raiyat in respect of the suit properties is liable to be set aside. 17. So far as the relief, i.e., permanent injuction sought for by the plaintiff against the defendants praying for injuncting/restraining the defendants permanently from Page 13 of 19 dispossessing her(plaintiff) from the suit properties is concerned. It is the observations of the learned trial court in Para No.7 of its judgment that, “even though the plaintiff is admitted to be in possession of the suit land, but, she(plaintiff) is an encroacher of the same.” The learned 1st appellate court has observed in Para No.5 of the judgment passed in T.A. No.05 of 1987 that, “the defendants have admitted the possession of the plaintiff over the suit properties stating that, she(plaintiff) is an encroacher and for her such encroachment, an encroachment case has been initiated against her.” As such, it is the concurrent findings of the trial court and 1st appellate court that, the plaintiff is in possession over the suit properties. As per the observations made above in the forging Para No.16, when the plaintiff is not entitled to get the decree of declaration that, she(plaintiff) as an occupancy raiyat of the suit properties, then at this juncture, whether, she(plaintiff) is entitled to get the decree, i.e., injunction against the defendants on the basis of her possession. Page 14 of 19 18. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions :- (i) In a case between Midnapur Zamidary Co. Ltd. vrs. Kumar Naresh Narayan Roy : reported in AIR 1929 (Privy Council)-144 (at Para No.9) that, In India persons are not permitted to take forcible possession, they must obtain such possession, as they are entitled to through a court. (ii) In a case between Lallu Yeshwant Singh (dead) by his legal representative vrs. V. Rao Jagdish Singh and others : reported in AIR 1968(S.C.)-620— That, in India, persons are not permitted to take forcible possession’ they must obtain such possession as they are entitled to through a Court. (iii) In a case between Tarsem Singh and others vrs. State of Haryana and others : reported in 2006(I) CCC-101(P&H) That, plaintiff’s suit is for declaration of the title and permanent injunction—Though, plaintiff is not entitled for declaration of title over the suit properties, but, when it is found that, plaintiff is in possession the Government(defendant) could not be permitted to evict the plaintiff otherwise in due course of law. In such a injunct the situation, the plaintiff State(defendant) not to dispossess the plaintiff otherwise in due process of law. is entitled to property, over suit the In a case between Yar Muhammad and another (iv) vrs. Lakshmi Das and others (F.B.) : reported in AIR 1959 (Allahabad)-1—Law respect possession—Even if, there is no title to support it, it will not permit any person to take the law into his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a Judge of his own cause. (v) In a case between Ram Rattan and others vrs. State of Uttar Pradesh(D.B.) : reported in AIR 1977 (S.C.)-619—A true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing and has not accomplished his possession, but this right is not available to the true in owner, accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that, the true owner should dispossess the trespasser if the trespasser has been successful Page 15 of 19 by taking recourse to the remedies available under the law. In a case between Theni Allinagaram (vi) Municipality(Commissioner), Theni and another vrs. Rajeshwari : reported in 4(2005) Civil Law Times-317 (Madras) (D.B.)—Landlord(Municipality) has no right to take forcible possession of property or put lock on same except by due process of law. (vii) In a case between Kasukurthi Karthik vrs. Kasukurthi Hanumantha Rao(Died) and others : reported in 2023(1) CCC-297(Telengana)—A person in possession cannot be dispossessed even by owner of property except by recourse to law. (viii) In a case between Rame Gowda(dead) by LRs. vrs. M. Varadappa Naidu(dead) by LRs and another : reported in (2004) 1 SCC-769—A person, who is in possession, is entitled to a limited injunction restraining the defendant from interfering with his possession except by due process of law. In a case between State of Orissa and another (ix) vrs. Pitambar Maikap and others(Orissa) (decided on 31.01.2025 in S.A. No.148 of 1996) (at Para No.21) that, in possession over the suit when plaintiffs are properties, but, if they(plaintiffs) failed to get the decree of declaration of title, still then, they are entitled to limited injunction restraining the defendant(State) from interfering into their possession over the suit properties, unless they(plaintiffs) are dispossessed therefrom by due process of law. 19. In the suit at hand vide T.S. No.49 of 1985, the plaintiff(respondent) had approached the learned trial court seeking two relief(s), i.e.,:- to declare her(plaintiff) as an occupancy raiyat in (i) respect of the suit land, and (ii) to restrain/injunct the defendants(State and Tahasildar, Marsaghai) permanently from dispossessing her(Plaintiff) from the suit properties. 20. As per the discussions and observations made in Para No.16 of this judgment, the plaintiff has not been entitled to Page 16 of 19 get the decree of declaration that, she is an occupancy raiyat of the suit properties. Because, due to the abolition of ex-intermediary estate, the suit properties vested with the State free from encumbrances, for which, it has been held that, the suit properties are the properties of the State(defendant no.1), but, whereas as per the concurrent findings of the trial court and 1st appellate court, it has been established that, the plaintiff is in possession over the suit properties. 21. As such, when the plaintiff is not entitled to get the decree for a declaration that, she(plaintiff) is an occupancy raiyat of the suit properties and when, it is established that, the plaintiff is in possession over the suit properties(which are the properties of the Government), then at this juncture, in view of the propositions of law enunciated in the ratio of the decisions indicated in Para No.18 of this judgment, she(plaintiff) has been entitled to the limited injunction restraining the defendants from interfering into her possession over the suit properties, unless she(plaintiff) is dispossessed therefrom by due process of law. Page 17 of 19 22. As per the discussions and observations made above, though the plaintiff is not entitled to get the decree that, she(plaintiff) is an occupancy raiyat of the suit properties, but, she(plaintiff) is entitled to a limited injunction against defendants(appellants) in order to restrain the defendants from interfering into her possession over the suit properties, unless she(plaintiff/respondent) is dispossessed therefrom by due process of law. When, the 1st appellate court has decreed the suit of the plaintiff entitling her(plaintiff) to get both the aforesaid reliefs sought for by her(plaintiff) and when, as per the findings made above in Para No.21, the plaintiff is entitled for a limited injunction only in order to restrain the defendants from interfering into her possession over the suit properties, unless she(plaintiff) is dispossessed therefrom by due process of law, then at this juncture, this 2nd appeal filed by the appellants(defendants) is to be allowed in part. 23. In result, this 2nd appeal filed by the appellants (defendants) is allowed in part on contest against the respondent(plaintiff), but, without cost. Page 18 of 19 24. The judgment and decree passed by the learned 1st appellate court in T.A. No.05 of 1987 is set aside in part and modified as follows :- (i) the suit be and the same vide T.S. No.49 of 1985, filed by the plaintiff(respondent in this 2nd appeal) is the decreed defendants(appellants in this 2nd appeal), but without cost. against contest part on in (ii) the prayer of the plaintiff(respondent in this 2nd appeal) to declare her as an occupancy raiyat of the suit properties is refused. (iii) the defendants(appellants in this 2nd appeal) are restrained from interfering into the possession of the plaintiff(respondent in this 2nd appeal) over the suit properties till she(plaintiff) is evicted therefrom by due process of law. ( A.C. Behera ) Judge Orissa High Court, Cuttack The 31st of July, 2025/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 31-Jul-2025 17:27:28 Page 19 of 19