The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.05 of 2002 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Gandharba Chatoi Collector, Puri and another -versus- …. …. Appellant Respondents Appeared in this case:- For Appellant For Respondents : :
Legal Reasoning
Mr. B. Das, Advocate appearing on behalf of Mr. N.C. Pati, Advocate Mr. P. Bharadwaj, Learned Addl. Standing Counsel Appeared in this case:- CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 08.01.2024 / date of judgment :16.02.2024 A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment. 2. The appellant of this 2nd appeal was the sole plaintiff before the trial court in the suit vide T.S. No. 473 of 1989-I and he was the appellant before the 1st appellate court in the 1st appeal vide T.A. No.16 of 1992-I. The respondents of this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.473 of 1989-I and they were the // 2 // respondents before the 1st appellate court in the 1st appeal vide T.A. No.16 of 1992-I. 3. The suit of the plaintiff vide T.S. No.473 of 1989-I was a suit for declaration of his occupancy right over the suit properties. 4. As per the averments made by the plaintiff in his plaint, the suit properties were originally under the Ex-intermediary Estate of the then Ex-intermediary Loknath Sahu. That Ex-intermediary Loknath Sahu inducted the father of the plaintiff on dated 02.01.1944 as a tenant over the suit properties for cultivation of the same on the basis of payment of annual rent. The suit properties are the agricultural properties. Accordingly, on the basis of the induction made by the Ex-intermediary Loknath Sahu to the father of the plaintiff over the suit properties on 02.01.1944 as a tenant thereof, the father of the plaintiff re-claimed the suit properties and made it properly fit for agricultural purpose and possessed and cultivated the same on payment of annual rent to the Ex- intermediary. After death of the father of the plaintiff, the plaintiff being his successor possessed / cultivated the suit properties like his father. But, unfortunately, during the Hal settlement operation, the suit properties were recorded erroneously in the name of the State under Anabadi Khata instead of the plaintiff. As because, the plaintiff had been possessing the suit properties by cultivating the same continuously since his father’s time, i.e., since 02.01.1944, for which, the occupancy right of the plaintiff over the suit properties under the State Government has already been created. But, on the basis of wrong recording of the suit properties, in the name of the State in the Hal settlement, the Tahasildar, Nimapara issued a notice against him (plaintiff) under OPLE Act, 1972 for eviction of the plaintiff from the suit properties. For which, without getting any way, the plaintiff approached the trial court by filing the suit vide T.S. // 3 // No.214/473 of 91/1989 against the defendants, i.e., against the Collector and Tahasildar praying for declaring him(plaintiff) as a occupancy tenant of the suit properties under the defendants. Both the defendants were set ex parte without filing any written statement. Therefore, the suit vide T.S. No.473 of 1989-I of the plaintiff was heard ex parte by the trial court. 5. During the course of ex parte hearing of the suit of the plaintiff vide T.S. No.214/473 of 91/1989, the plaintiff examined himself as P.W.1 and relied upon a series of documents on his behalf vide Exts.1 to 6. 6. After conclusion of the ex parte hearing and on perusal of the material, documents and evidence relied by the plaintiff, the trial court dismissed the suit of the plaintiff vide T.S. No.473 of 1989-I ex parte against the defendants, as per its ex parte judgment and decree dated 18.02.1992 and 04.03.1992 respectively assigning the reasons that, the plaintiff has not become able to establish his possession over the suit properties under suit Khata No.286 through oral and documentary evidence. 7. On being dissatisfied with the above ex parte judgment and decree of dismissal of the suit of the plaintiff vide T.S. No.473 of 1989-I passed by the trial court through its judgment and decree dated 18.02.1992 and 04.03.1992 respectively, he(plaintiff) challenged the same by preferring the 1st appeal vide T.A. No.16 of 1992-I being the appellant against the defendants by arraying them (defendants) as respondents. After hearing from both the sides, the 1st appellate court dismissed 8. to the 1st appeal vide T.A. No.30/16 of 2000/1992 of the plaintiff through its judgment and decree dated 06.10.2001 and 20.10.2001 respectively // 4 // concurring/accepting the findings and observations made by the trial court in its judgment and decree passed in T.S. No.473 of 1989-I against the plaintiff for dismissing that suit of the plaintiff. 9. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st appeal of the plaintiff vide T.A. No.30/16 of 2000/1992, he(plaintiff) challenged the same by preferring this 2nd appeal being the appellant against the defendants by arraying them(defendants) as respondents. 10. This 2nd appeal was admitted on formulation of the following substantial questions of law, i.e., :- (i) Whether the learned courts below erred in law in not accepting Exts.1 and 2 series which are documents of more than 30 years back produced from proper custody, which were duly proved, in the absence of any rebuttal evidence? (ii) Whether the courts below failed to appreciate the fact that, plaintiff is a raiyat as defined under Section 5(2) of the Orissa Tenancy Act and morely cultivating a land itself gives him an occupancy right under Section 24 of the Orissa Tenancy Act? 11. I have already heard from the learned counsel for the appellant and the learned Additional Standing Counsel for the respondents. 12. It appears from the pleadings of the plaintiff (appellant in this 2nd appeal) that, he(plaintiff) has prayed for declaration of his occupancy tenancy over the suit properties under Khata No.286 Plot No.1929 on the basis of the documents relied by him vide Exts.1 to 6. 13. Ext.1 is an unregistered lease deed dated 03.01.1944 “Ext.2 is the rent receipt issued by an Ex-intermediary. Ext.3 is the notice issued by the Additional Tahasildar, Konark under OPLE Act, 1972 against the plaintiff. Ext.4 is the certified copy of the RoR of Khata No.186. Ext.5 is // 5 // the copy of notice under Section 80 of the C.P.C. and Ext.6 and 6(a) are the postal receipts. 14. No document has been filed or proved on behalf of the plaintiff to show about the acceptance to the plaintiff by the State Government as tenant of the suit properties after abolition of the Ex-intermediary system. 15. Likewise, no document has been filed or proved on behalf of the plaintiff to show that, after abolition of Ex-intermediary Estates, the Ex- intermediary of the suit area had submitted any Ekpadia/Ruffa/Zamabandi before the Government stating about the possession of the plaintiff over the suit properties under him (Ex- intermediary) at the time of abolition of the Ex-intermediary Estates. No tenancy ledger in respect of the suit properties has been opened in the name of the plaintiff after the abolition of the Ex-intermediary Estates. 16. The own documents relied by the plaintiff vide Exts.3 and 4 for establishing his occupancy tenancy right over the suit properties, relate to some other properties than the suit properties. Because, the suit properties are under Khata No.286, but, Exts.3 and 4 relate to the properties under Khata No.186. As such, the oral and documentary evidence of the plaintiff are not establishing any possession of the plaintiff over the suit properties. Because, no Ekpadia/Ruffa/Zamabandi has been submitted by the Ex-landlord before the Government at the time of vesting of the Ex-intermediary Estates stating about the possession of the plaintiff over the suit properties. No tenancy ledger in respect of the suit properties has been opened in the name of the plaintiff after abolition of the Ex-intermediary Estates. No step has been taken by the plaintiff to // 6 // record the suit properties in his name in Hal Record of Right during Hal Settlement Operation. 17. Rather, the own documents relied by the plaintiff vide Exts.3 and 4 for establishing his occupancy tenancy over the suit properties have no nexus/connection with the suit properties. Because, the said documents vide Exts.3 and 4 of the plaintiff relate to some other properties, than the suit properties. 18. The conclusion drawn above against the claim of occupancy right of the plaintiff over the suit properties, finds support from the ratio of the following decision of the Hon’ble Courts:- 2013(1) CLR—1234 : Bansidhar Jena and others vrs. State of Orissa represented through Collector, Puri and another—Specific Relief Act, 1963—Section 34— Occupancy right over land—“No Ekpadia submitted by the ex-landlord in the name of the plaintiffs to the Government at the time of vesting—No step has been taken by the plaintiffs to get their names recorded during the Hal Settlement operation—Held, the claims of the plaintiffs rightly negatived.” 19. As per discussions and observations made above, when the plaintiff has not become able to establish his right of occupancy over the suit properties through legally admissible evidence, then at this juncture, there is no justification under law for making interference with the concurrent findings made by the trial court and 1st appellate court in dismissing the suit of the plaintiff through this 2nd appeal filed by him(plaintiff). As such, there is no merit in the 2nd appeal of the appellant(plaintiff). The same must fail. // 7 // 20. In the result, the 2nd appeal filed by the appellant(plaintiff) is dismissed on contest against the respondents, but, without cost. 21. The judgments and decrees passed by the trial court in T.S. No.473 of 1989-I and by the 1st appellate court in T.A. No.16 of 1992-I dismissing the suit of the plaintiff are confirmed. Judge Orissa High Court, Cuttack The 16th of February, 2024/ Jagabandhu, P.A. ( A.C. Behera ) Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: PA Reason: eMudhra.App.Views.PartialControls.SigningModeTab.SigningTabVie wModel Location: OHC, CUTTACK Date: 19-Feb-2024 07:19:57