Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK S.A. No.132 of 1999 In the matter of an appeal under Section 100 C.P.C, 1908. *** Baishnab Charan Choudhury (dead) & Others … Appellants. -VERSUS- State of Odisha & Others … Respondents. Counsel appeared for the parties: For the Appellants : Mr. Karunakar Rath, Advocate. For the Respondents : Mr. G. Mohanty, Standing Counsel (for State respondent Nos.1 & 2) Mr. D.P. Mohanty, Advocate (for respondent Nos.3(a) to 3(d)) P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA S.A. No.132 of 1999 Page 1 of 16 Date of Hearing : 09.04.2025 :: Date of Judgment : 16.04.2025 ANANDA CHANDRA BEHERA, J.— J UDGMENT 1. This 2nd Appeal has been preferred against the confirming Judgment. 2. The predecessor of the appellant Nos.1(a) to 1(g) and
Legal Reasoning
appellant No.2 in this 2nd Appeal were the plaintiffs before the Trial Court in the suit vide O.S. No.197 of 1988-I and the appellants before the 1st Appellate Court in the 1st Appeal vide T.A. No.5/25 of 1993-1991. The respondents in this 2nd Appeal were the defendants before the Trial Court in the suit vide O.S. No.197 of 1988-I and respondents before the 1st Appellate Court in the 1st Appeal vide T.A. No.5/25 of 1993-1991. 3. The suit of the plaintiffs vide O.S. No.197 of 1988-I against the defendants was a suit for declaration of title and correction of M.S. R.o.R. 4. As per the averments made by the plaintiffs in their plaint, the suit properties under C.S. Khata No.101, plot S.A. No.132 of 1999 Page 2 of 16 Nos.292 & 293 were under the ex-intermediary estates of the then Zamindar Samanta Radha Prasanna Das. Under the then Zamindar Samanta Radha Prasanna Das, the father of the plaintiffs i.e. Braja Kishore Choudhury was Madhya Satwadhikari in respect of the suit properties and the suit properties were under his Khas possession and he was paying the rent for the same to the main Zamindar Samanta Radha Prasanna Das. As such, the father of the plaintiffs had his status as Raiyat over the suit properties. Even after vesting of the Ex-intermediary Estates in the Government, the Raiyat Status of the father of the plaintiffs over the suit properties continued, but unfortunately, during major settlement operation, the father of the plaintiffs could not take appropriate step before the settlement authorities for recording of the suit properties in his name. Because, during that time, he was falsely implicated in a criminal case. For which, the suit properties were erroneously recorded in the name of Government under Rakhit Khata in the major settlement. In the year, 1958, a partition suit was filed in the Court of learned Sub-Judge, Balasore by one of the co-sharer S.A. No.132 of 1999 Page 3 of 16 of the father of the plaintiff namely, Bhairab Chandra Choudhury vide O.S. No.96 of 1958-I and as per the final decree passed in that suit vide O.S. No.96 of 1958-I, the suit properties had fallen in the share of the plaintiffs. So, the plaintiffs are in possession over the suit properties as the owners thereof since the time of their father. When the plaintiffs approached the local revenue officer for correction of the recording of the suit properties to their names, their prayer was rejected on the ground that, the revenue officer has no jurisdiction to declare the Rayati Rights of the plaintiffs in respect of the suit properties, as, the suit properties have been recorded under Rakhit Khata in the name of the State. When on the strength of erroneous recording of the suit properties in the name of the State, the local persons tried to erect houses on the suit land and to remove the valuable trees from the same forcibly, then, they (plaintiffs) filed the suit vide O.S. No.197 of 1988-I in the Court of learned Munsif, Balasore against the State and its officer and also against the defendant No.3 impleading him (defendant No.3) as a party, as the defendant No.3 has S.A. No.132 of 1999 Page 4 of 16 constructed a house on the suit properties forcibly, praying for declaration of their title over the suit properties and for correction of the M.S. R.o.R of the suit properties from the name of the State to their names. 5. Having been noticed from the Trial Court in the suit vide O.S. No.197 of 1988-I, the defendant Nos.1 and 2 contested the same by filing their joint written statement denying the averments made by the plaintiffs in their plaint taking their stands inter alia therein that, the plaintiffs have no cause of action to bring the suit. The suit filed by the plaintiffs is not maintainable under law. The suit of the plaintiff is bad for non-compliance of the provisions of Section 80 of the CPC, 1908 and the suit is bad for non-joinder of necessary parties. The further please of the defendant Nos.1 and 2 were that, the suit properties are situated in the midst of the village which had/have been using by the villagers for their communal purposes. The suit properties were not under the Khas possession of the father of the plaintiffs at any point of time. The suit properties were vested in the Government completely on 13.04.1961 free from all encumbrances due to S.A. No.132 of 1999 Page 5 of 16 abolition of Ex-intermediary Estates. For which, the suit properties are the properties of the State, in which, the plaintiffs have no right, title, interest and possession. Therefore, the suit properties have been recorded correctly in the M.S. R.o.R. in favour of the State under Anabadi Khata and the said suit properties have been using by the villagers of the suit village for communal purposes. So, the suit of the plaintiffs is liable to be dismissed. The defendant No.3 filed his written statement stating denying the averments made by the plaintiffs in their plaint taking his stands that, the suit properties were the Anabadi Properties of the then, Jamindar and he had been possessing the suit properties on the basis of Amalanama Patta issued by the Jamindar in his favor. During Jamindary system, he was possessing the suit properties and he was also paying rent for the same to the Jamindar. The so-called Amalanama and other documents in respect of the suit properties, those were issued in his favour destroyed during cyclone. As such, he (defendant No.3) had/has been possessing the suit properties for more than 30 years continuously and peacefully to the S.A. No.132 of 1999 Page 6 of 16 knowledge of the State. For which, he (defendant No.3) has perfected his title over the suit properties through adverse possession. So, the suit of the plaintiffs is liable to be dismissed against him (defendant No.3). 6. 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 O.S. No.197 of 1988-I and the said issues are: ISSUES Have the plaintiffs any cause of action to bring this suit? Is the suit maintainable in law? Have the plaintiffs any right, title and interest over the Is the suit land communal in character? Is the suit land Raiyati Land of the plaintiffs? Any other reliefs, the plaintiffs are entitled to get? Has the defendant No.3 perfected his title in respect of the 1. 2. 3. disputed land? 4. 5. 6. 7. suit land by adverse possession? 8. Is the suit bad for non-joinder of parties? 7. In order to substantiate the aforesaid reliefs sought for by the plaintiffs against the defendants, the plaintiffs examined 3 numbers of witnesses from their side as P.Ws.1 to 3 and relied upon the documents vide Ext.1 to 6/b on their behalf. S.A. No.132 of 1999 Page 7 of 16 On the contrary, in order to nullify/defeat the suit of the plaintiffs, the defendant No.3 examined 5 witnesses on his behalf including him as D.W.1 and relied upon the documents vide Ext.A & B. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered issue Nos.1,2,3,4,5 & 6 against the plaintiffs and in favour of the defendant Nos.1 and 2 and also answered the issue No.7 against the defendant No.3 and basing upon the findings and observations mae by the Trial Court in issue Nos.1,2,3,4,5 & 6, the Trial Court dismissed the suit vide O.S. No.197 of 1988-I of the plaintiffs on contest against the defendants as per its Judgment and Decree dated 26.02.1991 and 11.03.1991 respectively assigning the reasons that, after vesting of the suit properties in the State due to abolition of the Ex-intermediary system including Madhya Satwadhikari system, neither the predecessor of the plaintiffs nor the plaintiffs had made any application before the O.E.A. Collector for fixation of rent of the suit properties in their favour as per Section 7 of the O.E.A. Act and when in the last S.A. No.132 of 1999 Page 8 of 16 Hal Settlement, the suit properties have been recorded properly recorded in the name of the State due to vesting of the suit properties in the State free from all encumbrances, then, the question of declaration of title of the plaintiffs over the suit properties as well as the question of passing of any decree for correction of R.o.R of the suit properties from the name of the State to the name of the plaintiffs does not arise. 9. On being dissatisfied with the aforesaid Judgment and Decree i.e. dismissal of the suit of the plaintiffs vide O.S. No.197 of 1988-I passed by the learned Trial Court, they (plaintiffs) challenged the same by filing the 1st Appeal vide T.A. No.5/25 of 1993-1991 being the appellants against the defendants arraying the defendants as respondents. After hearing from both the sides, the First Appellate Court dismissed to that First Appeal vide T.A. No.5/25 of 1993-1991 of the plaintiffs concurring/accepting the findings & observations made by the Trial Court against the plaintiffs and in favour of the defendant Nos.1 and 2 as per its Judgment and Decree dated 08.03.1999 & 16.03.1999 respectively. S.A. No.132 of 1999 Page 9 of 16 10. On being aggrieved with the aforesaid Judgment and Decree passed by the 1st Appellate Court in T.A. No.5/25 of 1993-1991 in favour of the defendant Nos.1 & 2 and against the plaintiffs, the plaintiffs challenged the same by preferring this 2nd Appeal being the appellants against the defendants arraying them as respondents. When, during the pendency of the 2nd Appeal, the appellant No.1 (plaintiff No.1) expired, then, in his place, his LRs have been substituted as appellant Nos.1(a) to 1(e). 11. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e. I. Whether the learned Trial Court as well as the learned Appellate Court have adjudicated properly to the issue regarding Khas possession of plaintiffs-appellants prior to vesting as per Section 8(1) and 8(3) of the OEA Act? Whether the Ex-intermediary was 2. possessing the suit land from the Zamindar as per C.S. record prior to vesting of properties and why the M.S. authority have recorded the suit land as “Rakhit”? Whether this issue has been framed by the Trial Court? 12. I have already heard from the learned counsel for the appellants (plaintiffs), learned Standing Counsel for the S.A. No.132 of 1999 Page 10 of 16 respondent Nos.1 & 2 (defendant Nos.1 and 2) and the learned Counsel for the respondent Nos.3(a) to 3(d) (legal heirs of defendant No.3). 13. When, according to the pleadings of the parties as well as the findings and observations made by the Trial Court and 1st Appellate Court in their respective Judgments and Decrees, then, both the above formulated substantial questions of law have become interlinked having ample nexus with each other, both the substantial questions of law are taken up together analogously for their discussions hereunder: It is the undisputed fact of the case that, in the Sabik Settlement R.o.R. vide Ext.1, the suit properties were recorded in the name of the father of the plaintiffs i.e. Braja Kishore Choudhury having his status in respect of the suit properties as Madhya Satwadhikari. As per Lexicon of Revenue Terms, Madhya Satwadhikari means, “a person, who holds any kind of interest between the State and cultivators including tenure holders which is synonymous to an intermediary”. Tenure holder means, “holder of an intermediary interest between the proprietor and the Raiyat S.A. No.132 of 1999 Page 11 of 16 who was responsible for collection of rent and payment of assessed revenue to the Government, although he was at liberty to reclaim new lands and take up cultivation himself. The Orissa Tenancy Act defines a tenure holder to mean primarily a person who has acquired from a proprietor or form another tenure holder a right to hold land for the purpose of collecting rents or bringing under cultivation by establishing tenants.” It is the case of the plaintiffs as per their pleadings, the suit properties were under the Khas possession of their father Braja Kishore Choudhury. 14. As per the provisions of law envisaged in Section 7 of the OEA Act that, the question of Khas Possession over any property arises, only when, an intermediary possess the said property personally. Therefore, according to the plaintiffs, their father Braja Kishore Choudhury was an Ex-intermediary as per law in respect of the suit properties and the suit properties were under his Khas Possession. When any intermediary estate vests in the State due to abolition of the Ex-intermediary system, the properties, those S.A. No.132 of 1999 Page 12 of 16 were under Khas possession of an Ex-intermediary also vests in the State as per law free from all encumbrances, if, the same is not settled as per Section 7 of the OEA Act in favour of the Ex-intermediary following the provisions/criterias envisaged under Section 8-A of the OEA Act. 15. Here in this suit/appeal at hand, the suit properties had vested in the State due to abolition of the Ex-intermediary Estates on 13.04.1961. There is no material in the record on behalf of the plaintiffs to show about the filing of any application either by the father of the plaintiffs or by the plaintiffs before the revenue authorities under Section 7 of the OEA Act for settlement of the suit properties and for fixation of rent for the same in their favour on the ground of Khas Possession as Madhya Satwadhikari. So, due to vesting of the suit properties in the State due to the abolition of the Ex-intermediary Estates/system and due to non-settlement of the suit properties through fixation of rent in favour of the plaintiffs as per Section 7 of the OEA Act following the provisions of Section 8-A of the said Act, it S.A. No.132 of 1999 Page 13 of 16 cannot be held that, the plaintiffs have any interest over the suit properties. For which, in other words, it can be held, as per law that, the suit properties have become the properties of the State since its vesting i.e. since 13.04.1961. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decisions: I. II. In a case between Bishnu Dalei & Others Vs. Jagannath Nanda & Others reported in 37 (1971) CLT—Notes—(148) 118 that, Orissa Estates Abolition Act, 1951—Section 8-A—Claim under Sections 6 & 7 not filed within the prescribed period. The vesting and the deemed settlement being two distinct acts, one followed by the other, unless the requisite procedure for obtaining the deemed settlement is followed. Section 8-A must be read in the context of sections 6 and 7 which are exceptions to the general purport of the Act to establish all rights, title and interest in lands of intermediaries and vest the same in the State. The purpose of the penal clause in section 8-A(3) is to enforce that an intermediary cannot have the benefit of the exceptions unless the claim is filed within time. Even if prior to the amendment in 1956 certain deemed settlement had taken place, they were nullified and unless the procedure as laid down in section 8-A adopted, the right of the intermediary got extinguished. Therefore, in the present case, though defendant No. 10 had furnished his name as a tenant in the jamabandi and even assuming that the revenue authorities had treated him as a tenant, by virtue of the enactment of section 8-A it was incumbent on him to file a claim and having failed to do so, no tenancy right can be said to have accrued in his favour under the provisions of the Act. In a case between Sukhadev Samal & Others Vs. The Collector of Balasore & Others reported in 30 (1964) CLT (Notes-86) 53 that, Section 7 & 8A(3)—No application within prescribed period for settlement of fair rent for lands in possession—Right to make any S.A. No.132 of 1999 Page 14 of 16 III. claim stands extinguished. Sub-section (3) of Section 8-A of that Act further stated that, if any intermediary fails to file his claim within the period prescribed under the Act, his right to make any such claim shall stand extinguished. In a case between Alekha Pradhan Vs. State of Orissa & Others reported in 2012 (Supp.-II) OLR 419 that, Orissa Estates Abolition Act, 1951—Section 7—For a settlement under the section, it is necessary to find out if the intermediary was in Khas possession over the land in question on the date of vesting. 16. When, it is the concurrent findings of the Trial Court as well as 1st Appellate Court that, neither the father of the plaintiffs (who was Madhya Satwadhikari of the suit properties) nor the plaintiffs have made any application as per Section 7 of the OEA Act for settlement of the suit properties in their names and when due to abolition of the Ex- intermediary Estate, the suit properties vested in the State free from all encumbrances and became the properties of the State and when the suit properties have not been settled either in the name of the father of the plaintiffs or in the names of the plaintiffs after vesting in the State, then, at this juncture, in view of the principles of law enunciated by the Hon’ble Courts in the ratio of the aforesaid decisions, it cannot at all be held that, the plaintiffs have right, title and S.A. No.132 of 1999 Page 15 of 16 interest over the suit properties and the State has no interest in the same. For which, the question of interfering with the Judgments and Decrees passed by the Trial Court as well as by the First Appellate Court through this 2nd Appeal filed by the appellants (plaintiffs) does not arise. 17. Therefore, there is no merit in the appeal of the appellants (plaintiffs). The same must fail. 18. In result, the 2nd Appeal filed by the appellants (plaintiffs) is dismissed on contest, but without cost. 19. The Judgments and Decrees passed by the Trial Court and 1st Appellate Court in O.S. No.197 of 1988-I & T.A. No.5/25 of 1993-1991 respectively in dismissing the suit of the plaintiffs are confirmed.
Decision
20. Pending application(s), if any, stand(s) disposed of. 21. Interim order(s), if any, stand(s) vacated. (ANANDA CHANDRA BEHERA) JUDGE Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 17-Apr-2025 17:21:03 High Court of Orissa, Cuttack 16 .04. 2025// Rati Ranjan Nayak (RK) Sr. Stenographer S.A. No.132 of 1999 Page 16 of 16