Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK S.A. No.143 of 1989 In the matter of an appeal under Section 100 C.P.C, 1908. *** The State of Orissa, Through the Collector, Kalahandi, Bhawanipatna, District-Kalahandi … Appellant. -VERSUS- Hrushikesh Sahoo (dead) & Others … Respondents. Counsel appeared for the parties: For the Appellant : Mr. Pattaniak, Additional Government Advocate. Suvashis For the Respondents : None. P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Dates of Hearing : 03.09.2024 :: Date of Judgment : 30.09.2024 ANANDA CHANDRA BEHERA, J.— JUDGMENT 1. This 2nd Appeal has been preferred against the reversing Judgment. S.A. No.143 of 1989 Page 1 of 16 2. The appellant in this 2nd Appeal was the defendant before the Trial Court in the suit vide T.S. No.45 of 1984 and respondent before the First Appellate Court in the 1st Appeal vide T.A. No.38 of 1986. The respondent in this 2nd Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.45 of 1984 and appellant before the First Appellate Court in the 1st Appeal vide T.A. No.38 of 1986. 3.
Legal Reasoning
The suit of the plaintiff (respondent in this 2nd Appeal) against the defendant (appellant in this 2nd Appeal) vide T.S. No.45 of 1984 was a suit for declaration and permanent injunction. 4. The suit land is Ac.0.92 decimals of Sabik Plot No.74 out of Ac.1.60 decimal under Sabik Khata No.10 in Mouza Tetelpada under Komna P.S. in the District of Kalahandi. According to the plaintiff, he is the grand son of Sahadev Sahoo. Sahadev Sahoo had 4 sons namely, Anand, Madanmohan, Paramanand, Jayaram. Hrushikesh (plaintiff) is the son of Anand. His ancestors were the Ex-Thikadars of their village and they were in possession of “Sir” and “Khudakasta” lands of village Tetelpada under Komna P.S. in the District of Kalahandi till the abolition of Thikadari system. The suit land i.e. Ac.0.92 Decimal is a portion of an embankment of a tank. The suit plot No.74 along with other plots being Khudakasta lands were recorded in Bebandabosta Khata No.10 in the Sabik Settlement. As the S.A. No.143 of 1989 Page 2 of 16 suit plot No.74 was under the Bebandabosta Khata, for which, the Tahasildar, Nuapara started O.E.A. Case No.55 of 1976 and illegally settled an area of Ac.0.68 Decimals out of Ac.1.60 Decimals from suit Sabik Plot No.74 in the name of Paramananda Sahoo i.e. Son of Sahadev Sahoo as per final Order dated 14.02.1977 passed in that O.E.A. Case, but, in fact the suit plot No.74 Ac.1.60 decimals was under the exclusive possession of the plaintiff since last 50 years, for the reasons that, the total area of the said Sabik Plot No.74 was allotted to him (plaintiff) in a family settlement made by his grand father i.e. Sahadev Sahoo. So, by virtue of such family settlement, he (plaintiff) was possessing the entire suit plot No.74 for an area of Ac.1.60 Decimals. For which, he (plaintiff) has right, title, interest over the suit plot No.74. The area of the embankment of the tank i.e. suit plot No.74 was big in size, for which, he (plaintiff) was repairing the same from time to time and he was also growing crops on the same, such as Mustard & Bajra etc. As the plaintiff was/is in possession over suit plot No.74, for which, the settlement authorities after making due enquiry noted the possession of the plaintiff in the Remarks Column of the R.o.R of Sabik suit plot No.74, which was finally published on dated 01.04.1965. In spite of recording of his possession in the Remarks Column of the suit plot No.74, the Tahasildar, Nuapara settled Ac.0.68 Decimals out of Ac.1.60 Decimals from suit plot No.74 illegally in the name of Paramananda Sahoo S.A. No.143 of 1989 Page 3 of 16 behind the back of the plaintiff in O.E.A. Case No.55 of 1976. The said Paramananda Sahoo is the younger brother of the father of the plaintiff and after settlement of that Ac.0.68 Decimals out of Ac.1.60 Decimals of land from suit plot No.74 in the name of Paramananda Sahoo, the remaining properties of that suit plot No.74 i.e. Ac.0.92 Decimals (those are the suit land) have been erroneously recorded in the last Hal Settlement under Rakshit Khata in the name of Government of Orissa. For which, after the above settlement of Ac.0.68 Decimals of land from suit plot No.74 out of Ac.1.60 Decimals in the name of Paramananda Sahoo in O.E.A. Case No.55 of 1976, the rest Ac.0.92 Decimals of land of suit plot No.74 have been erroneously recorded in the name of the Government under Rakshit Khata vide Hal Khata No.11. The said order in O.E.A. Case No.55 of 1976 for settlement of Ac.0.68 Decimals of land out of Ac.1.60 Decimals of land from suit plot No.74 in the name of Paramananda Sahoo is illegal, arbitrary and the Orders were passed in that O.E.A. Case No.55 of 1976 without following the proper procedures provided under law without issuing any public notice and without making any proclamation, those were mandatorily required under law. As, Ac.0.68 Decimals of land out of Ac.1.60 Decimals of land of suit plot No.74 has been settled illegally in O.E.A. Case No.55 of 1976 in the name of Paramananda Sahoo by the Tahasildar, Nuapara, for which, in order to keep the relationship of the plaintiff with the successors S.A. No.143 of 1989 Page 4 of 16 of Paramananda Sahoo cordial, he (plaintiff) has confined his claim only over the rest (remaining) Ac.0.92 Decimals of suit plot No.74 leaving/excluding the settled Ac.0.68 Decimals of land from suit plot No.74 in the name of Paramananda Sahoo. So, the State of Orissa has no manner of right, title, interest and possession over the suit land measuring an area of Ac.0.92 Decimals in suit plot No.74. The settled Ac.0.68 Decimals of land from suit Khata No.74 in the name of Paramananda Sahoo in O.E.A. Case No.55 of 1976 along with his other properties have already been distributed between the landless persons in the year 1978 in a ceiling case against Paramananda Sahoo as ceiling surplus lands according to an order passed in OLR Case No.937 of 1975. When, for the first time on dated 14.02.1977, the plaintiff came to know about the above settlement of Ac.0.68 Decimals of land from suit plot No.74 in the name of Paramananda Sahoo illegally by the Tahasildar, Nuapara in O.E.A. Case No.55 of 1976 and recording of the remaining Ac.0.92 decimals of land of that suit plot No.74 under Rakshit Khata No.11 in the name of the Government, then, he (plaintiff) approached the Civil Court by filing the suit vide T.S. No.45 of 1984 against the defendant i.e. the State of Orissa after issuing statutory notice under Section 80 of the CPC, 1908 and prayed for the declaration of his right, title and interest over the suit properties as well as for confirmation of his possession thereon and to injunct the defendant (State of Orissa) and its officials S.A. No.143 of 1989 Page 5 of 16 permanently from interfering in his possession over the suit properties in any manner. 5. Having been noticed from the Trial Court in the suit vide T.S. No.45 of 1984 filed by the plaintiff, the defendant (State) contested the same by filing its written statement taking its stands inter alia therein that, Sahadev Sahoo was an oridinary Thikadar under the Ex-Zamindar of Khariar and he (Sahadev Sahoo) being the Thikadar, he was enjoying the “Sir” lands. Some Khudakasta lands were recorded in the name of Paramananda Sahoo son of Sahadev Sahoo in the Sabik Settlement R.o.R. under Bebandobasta Khata No.10 and the said Sabik R.o.R was finally published on dated 13.09.1965. Some of the Bebandobasti lands under sabik Khata No.10 were settled in favour of ex-Thikadar Paramananda Sahoo son of Sahadev Sahoo of village Tetelpada in O.E.A. Case No.162 of 1973. A case vide O.E.A. Case No.55 of 1976 was initiated for resumption of Ac.0.92 decimals of land from suit plot No.74 under Khata No.10 i.e. the suit properties, in which objections were invited and by following due procedures of law, Ac.0.92 Decimals of land out of Ac.1.60 Decimals of land from suit sabik plot No.74 i.e. the suit properties were resumed by the State. On the approach of the plaintiff, a case, vide O.E.A. Case No.91 of 1974 was initiated on dated 27.05.1974 before the Tahasildar, Nuapara, wherein, he (plaintiff) had prayed for settlement of Ac.30.80 Decimals of land under suit sabik Khata No.10 of S.A. No.143 of 1989 Page 6 of 16 Village Tetelpada vide annexure “A” (Form No. “H”) of his petition stating that the said properties were under his possession and in that petition, he (plaintiff) had not stated about his possession over any portion of the suit plot No.74, as, he (plaintiff) was/is not in possession over any portion of suit plot No.74. The entire suit plot No.74 Ac.1.60 Decimals was under the possession of Ex Thikadar Paramanand Sahoo, for which, the Tahasildar, Nuapara rightly settled only Ac.0.62 Decimals of land out of Ac.1.60 Decimals from suit Sabik plot No.74 in the name of Paramanand Sahoo and recorded the rest Ac.0.92 Decimals of land in the name of State under Rakshit Khata. The averments made by the plaintiff in his plaint that, he was raising crops on the suit land are totally false. The allegations alleged by the plaintiff that proper procedures were not followed in O.E.A. Case No.55 of 1976 are false. In fact, proper notices were issued in O.E.A. Case No.55 of 1976, but, the plaintiff had not filed file any objection in that case before the Tahasildar praying for settlement of the suit land in his name. The plaintiff has no right, title, interest and possession over the suit land. The Order of the Tahasildar for recording the suit land in the name of the Government is valid and proper. The plaintiff has not preferred any appeal challenging the said Order of the Tahasildar. As the plaintiff has no right, title, interest and possession over the suit properties and the suit properties S.A. No.143 of 1989 Page 7 of 16 are the Government land, for which, the suit of the plaintiff is liable to be dismissed against the State (defendant) with cost. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 4 numbers of issues were framed by the Trial Court in the suit vide T.S. No.45 of 1984 and the said issues are: ISSUES 1. 2. 3. 4. Is the suit maintainable? Has the plaintiff cause of action to bring the suit? Has the plaintiff right, title and interest over the suit land? To what relief, the plaintiff is entitled to? 7. During the trial of the suit vide T.S. No.45 of 1984, neither the plaintiff nor the defendant examined any witness from their respective sides in support of their respective pleadings except exhibiting some documents on their behalf. Two documents were exhibited on behalf of the plaintiff vide Exts.1 & 2. D. 8. The defendant-State exhibited 4 documents on its behalf i.e. Exts.A to After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered all the issues against the plaintiff and in favour of the defendant-State and basing upon the findings and observations made by the Trial Court in the issues against the plaintiff and in favour of the State-Defendant, the Trial S.A. No.143 of 1989 Page 8 of 16 Court dismissed the suit of the plaintiff vide T.S. No.45 of 1984 on contest against the defendant as per its Judgment and Decree dated 23.09.1986 and 28.10.1986 respectively assigning the reasons that, as per the Order Sheets of O.E.A. Case No.55 of 1976 vide Ext.D, objections were invited by the Tahasildar, Nuapara for resumption of the suit properties, but no objection was filed in response to the notices issued in O.E.A. Case No.55 of 1976 and as per the final order passed in O.E.A. Case No.55 of 1976, the suit properties along with some other properties under suit Sabik Khata No.10 of village Tetelpada were resumed by the State. According to the Judgment and Decree of the Trial Court, when, after vesting of the suit properties with the Government being free from all encumbrances, there is no settlement of the suit properties in the name of the plaintiff and when the plaintiff had/has not filed any application before the Tahasildar under O.E.A. Act for settlement of the suit land in his name and when, till yet, the suit properties have not been settled in the name of the plaintiff, but the same are in the name of State/Government, then, at this juncture, the plaintiff has no right, title, interest and possession over the suit properties, because, the title and possession of the suit properties are with the State. 9. On being dissatisfied with the aforesaid Judgment and Decree of the dismissal of the suit of the plaintiff vide T.S. No.45 of 1984 passed by the S.A. No.143 of 1989 Page 9 of 16 learned Trial Court, he (plaintiff) challenged the same by preferring the 1st Appeal vide T.A. No.38 of 1986 being the appellant against the defendant- State arraying it as respondent. After hearing from both the sides, the First Appellate Court allowed that 1st Appeal vide T.A. No.38 of 1986 preferred by the plaintiff and set aside the Judgment and Decree of the dismissal of the suit passed by the Trial Court in T.S. No.45 of 1984 as per its Judgment and Decree dated 27.01.1989 and 16.02.1989 respectively and declared the title of the plaintiff over the suit properties and restrained the defendant permanently from interfering into the possession of the plaintiff over the suit properties assigning the reasons that, as the suit properties were the “Khudkast lands”, the same should not be treated as the part of the intermediary estate. Because, “Khudakasta lands” are just like other private lands occupied by the Ex-Thikadar, those are partible, alienable and heritable. For which, “Khudakasta lands” i.e. the suit lands, in which, the incidence of occupancy right is inhered, the same were not vested with the State Government due to abolition of Thikadari system. For which, no resumption proceeding was required to be initiated by the Tahasildar, when the name of the plaintiff was indicated in the remarks column of suit Sabik Plot No.74 under Sabik Khata No.10 as a Raiyat. Therefore, the State Government should not have kept the said lands under Rakshit Khata No.11. For which, in spite of abolition of S.A. No.143 of 1989 Page 10 of 16 the Thikadari System as per the O.E.A. Act, the Raiyat interest of the plaintiff over the suit properties was not affected. Therefore, the provisions of O.E.A. Act are not applicable to the suit properties. So, the Judgment and Decree i.e. the dismissal of the suit of the plaintiff passed by the Trial Court on the ground of vesting of the suit properties with the Government due to abolition of Thikadari System as well as resumption of the suit properties cannot be sustainable under law. 10. On being aggrieved with the aforesaid Judgment and Decree passed by the First Appellate Court in T.A. No.38 of 1996 against the defendant (State) and in favour of the plaintiff declaring the title and possession of the plaintiff over the suit properties, the defendant-State challenged the same by preferring this 2nd Appeal being the appellant against the plaintiff arraying the plaintiff as respondent. 11. This 2nd Appeal was admitted on formulation of the following substantial question of law i.e. I. Whether the conclusion of the lower appellate court in T.A. No.38 of 1996 that, the Khudkast lands, does not vest in the State Government as a consequence of the abolition of Thikadari system is sustainable? 12. I have already heard from the learned Addl. Government Advocate for the appellant-State (defendant) only, as none appeared from the side of the respondent (plaintiff) for participating in the hearing of this 2nd Appeal. S.A. No.143 of 1989 Page 11 of 16 13. It is the undisputed case of the parties that, the Ex-intermediary including the Thikadari system in the area of the suit village were abolished on dated 01.06.1959 and after abolition of such systems, the R.o.R. of the suit land vide Khata No.10 was published on dated 01.04.1965 under Bebandobast status. Now, it will be seen that, what is the meaning of Bebandobasta status. As per the Lexicon of Revenue Terms, “the settlement Authorities prepared bebandobast Khatas in the names of the persons or their successors in interest and keep a special note in the special incident column of the relevant Khata with a view to facilitate identification of such types of lands for settlement at a future date.” 14. The aforesaid meaning of “Bebandobasta” clearly clarifies that, the properties covered under Bebandobasta Khata are not the settled properties of anybody, but the same are the properties of the Government, those can be or may be settled in future in favour of the persons in whose favour the said Bebandobsta Khata is prepared. As per the Lexicon of Revenue terms, “Khudkast means”, a resident hereditary tenant under a Zamindar. The Khudkast Raiyats had a right to and were obliged to pay rents for those holdings to the Zamindar at the customary rates. S.A. No.143 of 1989 Page 12 of 16 15. On conjoint reading to the aforesaid clarified meanings of Khudkast right of a tenant as well as Bebandobast status of a land, it clearly clarifies that, the Khudkast right means, cultivation of land by a person as a tenant under the Zamindar or Ex-intermediary on hereditary basis on payment of rents for the same to the concerned intermediary (Zamindar), and the said Khudkast lands comes within/under the ex-intermediary estates of the ex-intermediary/Zamindar. So, due to the abolition of the ex-intermediary system, as per law, the properties, those were under the ex-intermediary estate including the Khudkast lands were vested with the Government being free from all encumbrances. Therefore, even though, the suit properties were Khudkast lands, but, due to the abolition of Ex-intermediary system including Thikadari system, the same were vested with the State and thereafter, the same were recorded under Bebandobasta Khat vide Sabik Khata No.10 and subsequent thereto, the said suit properties have also been recorded in the name of the Government under Rakhit Khata vide Khata No.11. For which, it cannot be held that, the suit lands being Khudakast lands were not vested in the State Government in spite of abolition of the Ex-intermediary/Thikadari System. So, it is held that, due to abolition of the Ex-intermediary/Thikadari System, the properties those were under the Ex-intermediaries (Thikadars) including S.A. No.143 of 1989 Page 13 of 16 the Khudkast lands were vested with the State being free from all encumbrances. Therefore, the findings and observations made by the First Appellate Court that, the suit properties being the Khudakasta lands were not vested in the Government in spite of abolition of the Ex- intermediary/Thikadari System on dated 01.06.1959 cannot be sustainable under law. 16. That apart, the plaintiff himself had applied before the Tahasildar, Nuapara by filing O.E.A. Case No.51 of 1974 as per Ext.C praying for settlement of some properties (other than the suit properties) covered under the same Bebandabast suit Khata No.10 vide Ext.2 in his name on the basis of his possession indirectly admitting the vesting of the suit properties with the Government due to the abolition of the Ex-intermediary/Thikadari System on dated 01.06.1959. As such, when the plaintiff himself has admitted in his own application vide Ext.C in O.E.A. Case No.51 of 1974 indirectly to the vesting of the suit properties with the State/Government due to the abolition of the Ex-intermediary/Thikadari System without applying for the settlement of the suit properties in his name, then, he (plaintiff) cannot subsequently turned back by taking the plea that, the suit properties under suit Sabik Khata No.10 being the Khudakasta lands were not vested with the Government inspite of abolition of the Ex-intermediary/Thikadari System. S.A. No.143 of 1989 Page 14 of 16 Therefore, he (plaintiff) by his own conduct as well as his indirect admissions as discussed above is estopped under law as per Section 115 of the Evidence Act, 1872 (Section 121 of BSA Act, 2023) to take the plea that, he (plaintiff) is in possession over the suit lands and the same were not vested with the State inspite of abolition of the Ex-intermediary/Thikadari system. When it is held that, the suit properties had vested with the State due to abolition of Ex-intermediary/Thikadari System and after vesting of the suit properties with the State, the said properties have not at all been settled in the name of the plaintiff as yet under the provisions of O.E.A. Act and when, the suit properties are continuing in the name of the Government under Sabik Khata No.10 and Hal Khata No.11, then, at this juncture, the Judgment and Decree passed by the learned 1st Appellate Court in T.A. No.38 of 1986 in decreeing the suit of the plaintiff vide T.S. No.45 of 1984 reversing the Judgment and Decree of the dismissal of the suit of the plaintiff vide T.S. No.45 of 1984 passed by the Trial Court cannot be sustainable under law. For which, the Judgment and Decree of the dismissal of the suit of the plaintiff passed by the Trial Court cannot be held as unsustainable under law. 17. Therefore, there is justification under law for making interference with the Judgment and Decree passed by the First Appellate Court in T.A. S.A. No.143 of 1989 Page 15 of 16 No.38 of 1996 through this 2nd Appeal filed by the appellant-State (defendant). As such, there is merit in the appeal of the appellant (State). The same must succeed. 18. In result, the appeal preferred by the appellant-State (defendant) is allowed on merit, but without cost. 19. The Judgment and Decree passed by the First Appellate Court in T.A. No.38 of 1986 is set aside. 20. The Judgment and Decree passed by the Trial Court in T.S. No.45 of 1984 in dismissing the suit of the plaintiff against the defendant is confirmed. (ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack The 30 .09, 2024// Rati Ranjan Nayak Sr. Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India Date: 30-Sep-2024 16:01:33 S.A. No.143 of 1989 Page 16 of 16