Procedure v. Sushama Sahoo

Mr. S.K. Nanda-1 & B. Mohapatra, Advocates. ------------------------- CORAM: MR. JUSTICE D.DASH Date of Hearing : 22.12.2023 :: Date of Judgment:08.01.2024 D.Dash,J. The Appellant, by filing this Appeal under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree dated 10th August 2015 passed by the learned Additional District Judge, Bhubaneswar in R.F.A. No.60/14/62 of 2013/2009/2007. RSA No.412 of 2015 {{ 2 }} The Respondent as the Plaintiff had filed Title Suit No.212 of 2000 for declaration of her right, title and interest over the suit land seeking further relief of permanent injunction. In the suit, this Appellant has been arraigned as the sole Defendant. The suit having been decreed, this Appellant being the aggrieved Defendant had carried an Appeal under Section-96 of the Code, which too has been dismissed. Hence, the present Second Appeal is at the instance of the Appellant, who was the Defendant and has suffered from the judgments and decrees passed by both the Courts below.

For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

The Plaintiff’s case is that the husband of the Defendant, Nishakar Sahoo died on 16.02.2000. Nishakar Sahoo is the son of Chintamani Sahoo, whose father was Banchhanidhi Sahoo. Nishakar had three brothers namely, Rama Chandra Sahoo, Nilakantha Sahoo and Debraj Sahoo. There was a partition amongst them by registered deed dated 04.02.1959. At that time, Nishakar was a minor and in the said partition; separate portions of joint family property were allotted to each of the share holders. When Nishakar and Debraj became major, RSA No.412 of 2015 {{ 3 }} all the coparceners enjoyed their allotted land separately remaining under separate mess in separate houses. The Plaintiff’s husband was suffering from Peptic Ulcer and mental abnormality since 1995. He was bedridden. He being an illiterate person was only knowing to sign in Odia and that was taken advantage of by the Defendant, who started forcibly cultivating the suit lands on and from the year 1996. He threatened the Plaintiff to kill if she would come over the land. Nishakar had never sold the sold land to the Defendant nor executed any document. On 16.02.2000, when the Plaintiff on 15.04.2002 went over the suit land to cultivate the same, there was resistance since from the side of the Defendant. Hence, the suit come to be filed.

The Defendant in his written submission has first of all raised the question of maintainability of the suit projecting the provision contained under section 67 of the Orissa Land Reforms Act, 1960 as the bar for entertainment of said suit to adjudicate the dispute. The Defendant specifically pleaded that he has been cultivating the suit land as a ‘Bhag tenant’ since the year 1962. The Defendant stated that the suit land originally belonged to Banchhanidhi, Rama Chandra, Nilakantha, Nishakar and Debraj. It is also stated that the suit land with other lands of the joint family of Nishakar had been partitioned as evident from the registered deed dated 04.02.1959 and the suit land RSA No.412 of 2015 {{ 4 }} was allotted to Nishakar. The Defendant claims to have been inducted by Nishar as Bhag tenant to cultivate the suit land and accordingly, he has been in cultivating possession of the said land as a tenant which was never disputed by Nishakar during his lifetime. The Defendant being threatened by the Plaintiff of being dispossessed has filed an application under section-15(b) and section -15(d) of the OLR Act which has been numbered as OLR Case No.167 of 2000 before the Revenue Officer-cum-Additional Tahasildar, Bhubaneswar. The Defendant has prayed therein to declare him as Bhag tenant of Nishakar and in view of his death under the Plaintiff which is sub- judice.

The Trial Court with the above rival pleadings framed as many as six (6) issues. In view of the admitted case of the parties with regard to the ownership of the suit land; upon examination of evidence and their evaluation has arrived at a conclusion that the Defendant has not been able to establish his case that he had any point of time as a Bhag tenant. Therefore, finding such a plea to be based on total falsehood, the suit has been decreed. The aggrieved Defendant having preferred First Appeal has failed in his attempt to get the said judgment and decree passed by the Trial Court, set at naught. Hence, the present Second Appeal. RSA No.412 of 2015 {{ 5 }}

Mr. S.K. Nanda-1, learned Counsel for the Appellant submitted that in view of the pendency of the proceeding before the forum under the OLR Act, the Civil Court ought not to have proceeded with the suit instead would have held the suit to be barred in view of the provision of section-67 of the OLR Act. According to him, the Civil Court has no jurisdiction to rule upon the fact as to if the Defendant was a Bhag tenant under the Plaintiff’s husband thereafter under the Plaintiff, which is exclusively adjudicable by the forum prescribed under the OLR Act. He, therefore, urged for admission of this Appeal to answer the above as the substantial question of law.

Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement filed by the parties as well as the evidence, both oral and documentary, let in by them.

The Defendant in his written statement has not disputed the right, title and interest of the Plaintiff over the suit land. It is his case that he was a Bhag tenant under the husband of the Plaintiff and on his death, his status as such has been continuing under the Plaintiff. The suit having been filed in the year 2000, the Defendant claims to have filed OLR Case No.167 of 2000 before the Revenue Officer-cum- Tahasildar, Bhubaneswar for declaration of his status as aforesaid RSA No.412 of 2015 {{ 6 }} under section-15(b) and 15(d) of the Act. It appears that the Defendant has not proved any document in support of the same nor it has been shown before the Trial Court that the said tenancy was evidenced by any document. It is merely the bald statement of the Defendant that he was a ‘Bhag tenant’ under the husband of the Plaintiff and after him under the Plaintiff. In that view of the matter, when the Plaintiff had filed the suit for declaration of her right, title and interest seeking permanent injunction; the Courts below are found to have committed no error in decreeing the suit and holding that the suit is not barred by the provision of section-67 of the OLR Act. In a suit of this nature, merely because the Defendant raises the plea of tenancy that itself in the absence of any satisfactory evidence to say that such an issue is adjudicable by the forums under the OLR Act would not suffice to hold the suit to be barred under section-67 of the OLR Act. The Defendant in raising the plea was under the legal obligation to place all the evidence before the Court to arrive at a prima facie satisfaction that he has a case in support of his claim of Bhag tenancy in respect of the suit land so as to be adjudicated upon by the forums prescribed under the OLR Act to the exclusion of the Civil Court.

In view of the aforesaid submission of the learned Counsel for the Appellant (Defendant) cannot countenanced with to say that there RSA No.412 of 2015 {{ 7 }} arises any substantial question of law for being answered, meriting admission of this Appeal surfaces. It is however observed that this judgment and decrees passed in the Suit would not stand on the way of the Authorities prescribed under the OLR Act to decide the dispute if has been raised before them within the scope and purview of their jurisdiction.