The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RFA No. 81 of 2006 Smt. Hemalata Sahoo (Dead) & Others …. Appellants Mr. S. Mishra, Advocate & Associates -Versus- Sri Manchanath Mahadev Bije and another …. Respondents
Legal Reasoning
Mr. S.P. Dash Advocate & Associates CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:20.12.2023 1. Instant appeal under Section 96 of Code of Civil Procedure, 1908 is filed by the appellants challenging the correctness of the impugned judgment dated 17th February, 2006 of the learned Additional District Judge, Fast Track Court, FTC-III, Bhubaneswar promulgated in T.S. No. 20/63 of 2004/2001, whereby, the suit was dismissed ex parte with costs on the grounds inter alia that the same is against the weight of evidence and law and hence, not sustainable in law and therefore, the same is liable to be interfered with and set aside in the interest of justice followed by consequential relief. 2. The original appellant instituted the suit challenging the Record of Right in respect of the schedule land settled with the deity with a claim that it was recorded in her name exclusively earlier. In other words, the current settlement RoR published is challenged being erroneous with a declaration of title vis-à-vis the suit land. RFA No. 81 of 2006 Page 1 of 4 The defendants were set ex parte in the suit. Considering the evidence received, learned court below held that the title in favour of the plaintiff with respect to the suit land cannot be declared and hence, dismissed it. 3. Heard Mr. Mishra, learned counsel for the appellants and Mr. Nath, learned counsel for respondent No.2, namely, Commissioner of Endowments. None represented respondent No.1. 4. The contention of the plaintiff is that the vendor was in possession of the suit land and transferred the same vide Ext.3 followed by delivery of possession and thereafter, the same stood recorded with her in settlement RoR 1973 i.e. Ext.4 and accordingly, rent was received vide Annexure-5 series. The claim is that the suit land stood wrongly recorded in the name of defendant No.1 deity with the plaintiff as a Marfatdar. It is further submitted that defendant No.1 is a private deity and the suit land was in ‘Nijdakhal’ of the vendor of the plaintiff and hence, C.S. settlement entry to be wrong. In other words, the claim is that the vendor of the plaintiff is like other sebayats being in ‘Nijdakhal’ transferred the suit land in favour of the plaintiff on execution of the sale deed dated 17th June, 1948. It is submitted that the suit land was recorded as ‘Nijdakhal’ as made to reveal from Ext.2 and accordingly, the plaintiff’s vendor by the time of sale had become a raiyat. In fact, reference is made to the remarks column of Ext.2 and note of possession recorded ‘Aamba dakhal raiyati’ and hence, contended that it was not a tenure land and by being in continuous possession till 1948, in view of Sections 23 & 24 of the Orissa Tenancy Act, the vendor became a settled raiyat. By claiming so, it is further contended that by the time of execution of Ext.3, the vendor of the plaintiff was holding the RFA No. 81 of 2006 Page 2 of 4 land as a settled raiyat having occupancy right and hence, the transfer to be valid, which could not have been rejected by the learned court below. Reference to Section 30-A of the said Act is also made to justify the transfer on the ground that the vendor had a transferable right. In support of such contention, the following two decisions have been placed reliance on, such as, Dandapani Nayak Vrs. State of Orissa 1986 (II) OLR 391 and Radhamani Dibya & others Vrs. Braja Mohan Biswal & others AIR 1984 Orissa 77. On the other hand, Mr. Nath, learned counsel for respondent No.2 submits that the argument advanced by the other side is not acceptable for the reason that the vendor of the plaintiff was a sebayat and he had no right to transfer the suit land vide Ext. 3. It is further contended that the claim that the vendor to be a settled raiyat and had an alienable right is misconceived. 5. In so far as the decision in Dandapani Nayak (supra) is concerned, it was in connection with a lease and considering the adverse possession, a plea which was accepted, it was held by the Court that the lessee had become a non-occupancy raiyat under the State Government being in continued possession for 12 years until his death in view of Section 23 of the Orissa Tenancy Act and by virtue of such status, he acquired occupancy right. In Radhamani Dibya (supra), it has been held and observed that a bhag tenant under the ex-proprietor to be a tenant as defined in Section 2(23) of the Orissa Tenancy Act and he falls within the class of non-occupancy raiyat and being in continuous possession as a raiyat for 12 years, he acquires the occupancy right. The facts of the said decisions are distinguishable, as in the present case, the vendor of the plaintiff cannot be treated as a settled raiyat. In fact, the vendor was a sebayat and in such capacity, he transferred the suit land in favour of the plaintiff in 1948. Since the land RFA No. 81 of 2006 Page 3 of 4 stood wrongly recorded in the name of plaintiff by virtue of Ext.3, it was subsequently rectified and accordingly, Ext.6 came into being and settled with defendant No.1 deity with the plaintiff as its Marfatdar. Though the suit land was in ‘Nija dakhal’ of the plaintiff’s vendor as made to reveal from Ext.2, in the considered view of the Court, he did not have the transferrable right vis-à-vis the title. So, therefore, the conclusion is that notwithstanding Ext.2 & Ext.4 with rents having been received from the plaintiff vide Ext. 5 series, the transfer in respect of the suit land of defendant No.1 deity with the exclusive title recorded in favour of the plaintiff was rightly corrected vide Ext.6. In other words, the decision of the learned court below does not suffer from any legal infirmity and thus, therefore, not to be disturbed. 6. Hence, it is ordered. 7. In the result, the appeal stands dismissed, however, in the circumstances, without any order as to costs. (R.K.Pattanaik) Judge Kabita RFA No. 81 of 2006 Page 4 of 4