The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.6 of 2018 [In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908.] Mani Charan Swain(Since Dead) Shuka Swain & Others ..… Appellants -Versus- Nrusingha Charan Mohapatra & Others .…. Respondents Advocate(s) appeared in this case: For the Appellant : Mr. P.K. Rath, Sr. Advocate with Ms. S. Das, Advocate For Respondents : Mr. B. Baug, Sr. Advocate with Mr. N. Baug, Advocate CORAM: JUSTICE SASHIKANTA MISHRA J U D G M E N T 26th August, 2025 SASHIKANTA MISHRA, J. This is a plaintiffs’ appeal against a confirming judgment. The suit filed by the plaintiffs Page 1 of 15 for declaration that defendant No.1 has no right, title and interest over the suit property and that the order passed by the Additional District Magistrate (ADM), Bhadrak in OEA Case No.12 of 1995 is illegal and without jurisdiction, as also for permanent injunction, was dismissed by the trial Court and said dismissal
Legal Reasoning
was confirmed by the first appellate Court. 2. For convenience, the parties are referred to as per their respective status in the trial Court. 3. The above mentioned suit was filed by the plaintiffs in representative capacity claiming to be villagers of Narayanpur. It is their case that the suit land was recorded under Anabadi Khata as per C.S. Plot No.220 measuring Ac.1.59 decs as a ‘Joro’ (water channel) being used as such. There is no other outlet to drain out the excess water from the adjacent cultivable lands of different portions. The channel is used by the villagers since the time immemorial with the same being under nobody’s exclusive possession. Page 2 of 15 Some portion of the suit plot was used by the villagers for playground, grazing field and Harijan basti and another portion was possessed by one Babaji Jena. The defendant No.1 however, claims that Ac. 1.36 decs was obtained by him from the ex-landlord in a proceeding under Section 5(i) of the OEA Act. The ex- landlord was his father. He put fence and ridges around the suit land, and when the villagers protested, he filed a police case against them. The villagers approached the Tahasildar, Dhamnagar, who initiated a case under Section 5(i) of the OEA Act and conducted enquiry. After such enquiry, he passed an order dated 24.06.1995 against defendant No.1 and directed the land to be recorded in the name of the State. It is further stated that the land was under Anabadi Khata during vesting of the estate not being allotted to anybody. After abolition of Zamindari the ex-landlord granted ‘Ekpadia’ in favour of the defendant No.1, which is illegal. Defendant No.1 was a minor at that time and managed to subsequently Page 3 of 15 record the land in his name during major settlement and also obtained rent receipts illegally. He filed appeal against the order of the Tahasildar before the ADM, Bhadrak without impleading the plaintiffs as parties. The ADM illegally allowed the appeal setting aside the order of the Tahasildar. Since the easementary right of the plaintiffs was affected thereby, they filed the suit in representative capacity. 4. Defendant No.1 contested the suit by filing written statement. His specific stand was that the suit land was recorded in the current settlement under Ananbadi khata. The then Zamindar transferred Ac.2.45 decs of land to defendant No.1 on the strength of a permanent Krushi Patta. After abolition of Zamindari the landlord issued ‘Ekpadia’ in favour of the defendant No.1, who was paying rent in the ‘Zamindari Sirasta’ and then ‘Anchala Sirasta’. He was therefore, declared as Stitiban Praja of the land. He converted some portion of the family of land to Page 4 of 15 cultivable land and as pond as per amicable partition in the family vide deed dated 11.06.1969. Plot no.-229 measuring Ac. 0.79 decs was allotted to one Bishnu Prasad Mohapatra, while plot no. 228 measuring Ac. 1.59 decs and plot no.-233 measuring 0.07 decs were allotted to him. The lands were recorded accordingly and are in possession of the respective allottees. The said land was never used by the villagers, while he being a Government servant frequently remains absent from the village, taking advantage of which the villagers created trouble in his possession. The suit plot is neither a ‘Joro’ nor a road nor used as such. He was declared Stitiban Praja even as per order of the ADM in Appeal Case No.12 of 1995 of OEA Act. The suit of the plaintiffs is therefore, barred under Section 39 of the OEA Act, 5. Basing on the rival pleadings the Trial Court framed the following issues for determination:- I S S U E S Page 5 of 15 1. Is the suit maintainable in present form? 2. Is there any cause of action to file the suit? 3. Is the order passed in Appeal Case No.12/95 by ADM, Bhadrak illegal, void and without jurisdiction? 4. Whether the present plaintiffs and villagers of Narayanpur have any sort of right either easementary or customary to enjoy the suit property? 5. Has D-1 any right, title, possession over the suit land? interest and 6. Whether the suit and is joro (water channel) or stitiban land of D.1? 7. Is the suit barred under Section 39 of OEA Act? 8. Are the plaintiff entitled to the relief of the injunction against permanent defendants? 9. What other relief(s), the plaintiffs are entitled to? 6. Taking issue Nos.3, 5 and 6 for consideration at the outset, the trial Court observing that the plaintiffs had prayed to declare the order of the ADM in OEA appeal as without jurisdiction, referred to Section 9 of the OEA Act and held that the appeal is maintainable before the ADM. As regards the legality of the order passed by the ADM, the trial Court, in the absence of certified copy of the order produced by the Page 6 of 15 plaintiffs, held that the same is to be treated as valid in the absence of any contrary evidence. Further analyzing the documentary evidence adduced by the parties, it was held that the suit land is the stitiban land of defendant No.1 and cultivable land and a pond exists thereon. It was also held that the evidence on record shows exclusive possession of the defendant No.1. It was thus, held that defendant No.1 has right, title, interest and possession over the suit land. On issue No.4, the trial Court held that the land is cultivable land and pond under stitiban status of defendant No.1 and that the plaintiffs could not prove that they have easementary or communal right over the same. On issue No.7, the trial Court, referring to Section 39 of the OEA Act observed that the plaintiffs had not challenged the order of the ADM before the Board of Revenue. Thus, the suit is barred under Section 39 of the OEA Act. Page 7 of 15 In view of the above findings on the main issues, the remaining issues were answered accordingly and the suit was dismissed. 7. Being aggrieved, the plaintiffs carried appeal to the District Court. Learned District Judge, after independently appreciating the evidence on record found that there is conflict between the entries in different record of rights but, applying the settled principle of law held that the subsequent entries would be presumed to be correct. As such, it was held that even though the CS ROR mentions the suit land as ‘Joro’, the MS ROR mentions the same as paddy land and tank and therefore, being later, is to be accepted. The first appellate Court thereafter, concurred with the findings of the trial Court rendered against the issues and found no reason to interfere. The appeal was thus dismissed. Page 8 of 15 8. Being further aggrieved, the plaintiffs’ are before this Court in the present appeal which was admitted on the following substantial question of law. “(i) Whether the learned Courts below are correct in law upholding defendant No.1 right, title, interest over the Anabadi land on the ground of allowing of OEA Appeal by ADM in absence of any materials produced by the defendant that the lese in favour of defendant No.1 executed by his father has been confirmed by Board of revenue under Section-5(i) of the OEA Act and in absence of which there cannot be a valid lease, so as to confer right, title, interest in favour of the defendant. (ii) Whether the learned Courts below are correct in law dismissing the suit on the ground of lack of jurisdiction particularly when the Civil Court in exercise of power under Section 9 of CPC have wide power to examine whether statutory authorities while exercising their power have acted within their jurisdiction and in conformity with law.” 9.
Legal Reasoning
Heard Mr. P.K. Rath, learned counsel with Ms. S. Das, learned counsel appearing for the plaintiff-appellants and Mr. B. Baug, learned senior counsel with Mr. N. Baug, learned counsel appearing for the defendant No.1- respondent. 10. Mr. Rath assails the impugned orders by arguing that both the Courts below have committed Page 9 of 15 manifest error in treating the order passed by the ADM as valid completely ignoring the fact that said order being passed behind the back of the villagers and is illegal. It is further argued that Section 9 of CPC confers wide power on the Civil Court to examine whether any statutory authority has exceeded its jurisdiction or not. In the instant case, the ADM had no jurisdiction to entertain the appeal but the Courts below refused to interfere. Mr. Rath also argues that even otherwise, defendant No.1 could not independently prove his claim of having Stitiban Rayati right in respect of the suit property by adducing cogent evidence for which the finding of the Courts below in his favour are untenable. 11. Mr. Baug on the other hand, would argue that the plaintiffs, though claimed that the order passed by the ADM in OEA Appeal was null and void being without jurisdiction yet did not produce the said order before the trial Court. In the absence of the order Page 10 of 15 sought to be declared null and void, the Courts below rightly rejected the claim of the plaintiffs. Mr. Baug further argues that as per notification of the Government in Revenue Department dated 09.02.1963 it is the Sub-Collector, who is competent to adjudicate the matter under Section 5(i) of the OEA Act but not the Tahasildar. Since the Tahasildar had wrongly assumed jurisdiction, his order was rightly set aside by the ADM in appeal. He further argues that the plaintiffs never challenged the ADMs order before the higher authorities under the OEA Act. Under such circumstances, the bar under Section 39 applies. As regards the claim that the suit land is communal land, Mr. Baug would argue that both the Courts below have held, on the basis of evidence that the same is not a communal land. This being a concurrent finding of fact cannot be disturbed in the Second Appeal. Page 11 of 15 12. From the rival contentions noted above, it is evident that the primary challenge of the plaintiffs in the suit was with regard to the order passed by the ADM in Appeal No.12 of 1995. Said appeal was preferred against the order passed by the Tahasildar, purportedly under Section 5(i) of the OEA Act directing the suit land to be recorded in the name of the State. Significantly, despite such challenge, the plaintiffs never filed certified copy or any other authenticated copy of the order of the ADM before the trial Court. Now in the absence of copy of the order itself, the trial Court could not have decided anything as regards its legality or otherwise. Faced with such situation, the trial Court referred to Section 9 of the OEA Act and held that such an appeal is maintainable before the ADM. It was therefore, held and according to this Court rightly so, that the ADM did not act without jurisdiction in entertaining the appeal. Page 12 of 15 13. It was also held that in the absence of any contrary evidence the order of the ADM has to be treated as valid. This court fully concurs with such reasoning and finding. It is thus seen that the primary challenge of the plaintiffs’ is found to be without any foundation as the order of the ADM passed in appeal stares at their face. It is common ground that the plaintiffs never challenged said order before the competent authority under the OEA Act. It has been argued that the plaintiffs were not parties in the appeal and therefore, they can maintain the suit. But then, Section 39 of OEA Act would come into play at this stage, which is quoted hereunder:- “39.No suit shall be brought in any Civil Court in respect of any entry in or omission from a Compensation Assessment roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subject to any application made or proceeding taken under the side Chapters.” Page 13 of 15 14. Thus, the suit filed by the plaintiffs was not maintainable as was rightly held by both the Courts below. Notwithstanding the above finding, this Court, on a careful consideration of the findings rendered by both the Courts below is persuaded to concur with the same for the reason that the evidence on record clearly shows that the defendant No.1 has a valid right, title, interest and possession over the suit land. Further, said tittle of defendant No.1 is not only dependent upon order passed by the ADM in the OEA Appeal, there is other evidence as well such as, tenant ledger vide (Ext-D) and rents receipts (Ext-F) series, MS ROR (Ext-J,K, L, M, N) proving the exclusive title and possession of defendant No.1. Nothing has been demonstrated before this Court to show that said findings of the Courts below is erroneous or perverse. 15. Both the Courts below also found from the evidence on record that the nature of the land is not communal as claimed by the plaintiffs. This is also a Page 14 of 15 concurrent finding of fact and it has not been demonstrated as to how such finding is wrong. 16. From the foregoing narration, it is clear that the plaintiffs’ challenge to the order of the ADM in the OEA appeal lacks valid foundation. Further, the suit is barred under Section 39 of the OEA Act. The finding of the Courts below regarding title and possession of the plaintiffs is based on evidence on record. The substantial questions of law are answered accordingly. 17.
Decision
In the result, this Court finds no merit in the appeal, which is dismissed. There shall be no order as to costs. …………………………. Sashikanta Mishra Judge Orissa High Court, Cuttack. 26th August, 2025/P. Ghadai, Jr. Steno Signature Not Verified Digitally Signed Signed by: PUSPANJALI GHADAI Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 26-Aug-2025 13:20:05 Page 15 of 15