The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.347 of 2001 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree 15.09.2001 and 29.09.2001 respectively passed by the learned Ad hoc Additional District Judge, Bhubaneswar in T.A. No.3/27/9/6 of 2001/94/90/90 confirming the judgment and decree dated 28.02.1990 and 19.03.1990 passed by the learned Munsif, Bhubaneswar in T.S. No.16 of 1987-I. ---- Biswanath Behera & Others …. Appellants -versus- Baban Swain (Since Dead) by his LRs and Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.Sambit Rath (Advocate) For Respondents - Mr.Ramakanta Mohanty
Legal Reasoning
10. Referring to the previous decision of this Court in case of Hari Jena and Others –V- Somanath Harichandan; 1974 (1) CWR 387, it has been said by the Full Bench of this Court that:- “8.6 The case of Hari Jena (Supra) mainly deals with the process as per which a Sikimi tenant can become a raiyat and rights of Sikimi tenant as it stood then. Since at that point of time the Sikimi tenancy in respect of agricultural land was neither heritable nor transferable, therefore, at that point of time there was no question of anybody making substitution after such a tenant dies in course of a proceeding. But after amendment introduced by Act-29 of 1976 and with insertion of the words “and their successor-in-interest”, it has become clear that Sikimi tenancy in respect of agricultural land has become heritable and transferable and for this; acquisition of raiyat status by a Sikimi tenant is not required. Thus in our view law laid down by this Court in the case of Smt. Sarala Kumari Rath –V- Khati Rout & Others; 2000 (II) OLR 363 is correct and cannot be faulted”. 11. Finally, the answers to the questions had been returned as under:- “10.1 With regard to question No.1, we are clearly of the opinion that in the background of Dalziel Report and definition of Sikmi tenant as given by “Purna Chandra Ordia Bhasakosha”, a Sikimi tenant can be described both as sub- tenant and under-raiyat. With regard to the second question, our answer would be right of Sikimi tenants in respect of S.A. No.347 of 2001 Page 7 of 8 {{ 8 }} agricultural land and homestead land has become similar after coming into force of Orissa Act 29 of 1976 amending the “OLR Act”. With regard to third question, our answer is Sikimi right in respect of agricultural land is both heritable and transferable as has been correctly laid down in Smt. Sarala Kumari Rath’s case (Supra). With regard to question No.4, our answer would be, Sikimi right in respect of homestead land is clearly heritable and transferable”. 12. In view of such pronouncement of the Hon’ble Full Bench in Case of Daitary Swain (Supra), the substantial question of law, as framed, receives its answer accordingly, which in turn, leads to confirm the judgments and decrees passed by the Courts below in non-suiting the Plaintiffs seeking the reliefs of ejectment of the Defendants from the suit land, for recovery of possession and permanent injunction. 13.
Arguments
(Senior Advocate) CORAM: MR. JUSTICE D.DASH Date of Hearing : 31.01.2023 : Date of Judgment:15..02.2023 D.Dash,J. The Appellants, in filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), assail the judgment and decree 15.09.2001 and 29.09.2001 respectively passed by the learned Ad hoc Additional District Judge, Bhubaneswar in T.A. No.3/27/9/6 of 2001/94/90/90. By the same, the Appeal filed by the present Appellants under section 96 of the code in challenging the judgment and decree dated S.A. No.347 of 2001 Page 1 of 8 {{ 2 }} 28.02.1990 and 19.03.1990 passed by the learned Munsif, Bhubaneswar in T.S. No.16 of 1987-I, has been dismissed and thereby the judgment and decree passed by the Trial Court in dismissing the suit filed by the present Appellants as the Plaintiffs have been confirmed. It may be stated here that one of the Appellants, namely, Artatrana Behera (Plaintiff No.2), having died during pendency of this Appeal, the other two Appellants (Plaintiffs) are pursuing this Appeal. The Respondents 1 and 2(Defendant Nos.1 & 2), having died during pendency of the First Appeal, their legal representatives are on record. 2. 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. 3. The Plaintiffs’ case is that the suit land under plot no.6330 was recorded in the name of one Sirish Chandra Ghose and others as landlords and Mukunda Behera, s/o-Ratna Behera as Stitiban Tenant’s with Piru Swain as the Sikimi Rayat. The other part of land involved in the suit, i.e., plot no.6331 was recorded in the name of Sri Jagannath Mahaprabhu Marfat Sivananda Saraswati Swamy as Landlord and Sri Mukunda Behera, S/o-Ratha Behera as Stitiban Tenant with Pira Swain as the Sikimi Rayat. This was the position in the record of right finally published on 14.01.1928. Mukunda Behera is the father of Baja Behera and the grandfather of the Plaintiffs. Pira Swain is the ‘sikimi tenant’ and he is the father of the Defendants. It is the case of the Plaintiffs that the aforesaid Mukunda Behera had engaged the father of the Defendants namely Pira Swain to look after his cultivation and the household affairs and had left S.A. No.347 of 2001 Page 2 of 8 {{ 3 }} the suit land for his personal use. The thatched house which stands over the suit land is said to have been constructed by Mukunda. After the death of Mukunda Behera, his son Baja Behera, the father of the Plaintiffs paid the rent to the original landlords up to 1974 and thereafter, to the Revenue Authority. It is stated that after the death of Pira Swain, the original sikimi rayat, the Defendants, in connivance with the Revenue Authority, in order to grab the suit land, had filed Misc. Case No.20 of 1979 under section 4(5) of the Orissa Land Reforms Act, 1960 before the Revenue Officer to declare themselves as Rayat with respect to the suit properties. However, as the consolidation operation started in the village, the Revenue Officer forwarded the matter to the Assistant Consolidation Officer (ACO) for disposal in accordance with law. The ACO finding no jurisdiction to decide the case, transferred the case to the Additional Tahasildar, Bhubaneswar. The Additional Tahasildar without giving notice and the reasonable opportunity of hearing, on 15.01.1981, declared the Defendants as Rayats over the suit land. The Plaintiffs, being aggrieved by the order, having carried Appeal No.21 of 1981, that order was set aside and the matter stood remanded. The Additional Tahasildar, then after hearing, passed an order on 17.08.1984 to the effect that since suit plots are homestead land, proceeding under section 4(5) of the O.L.R. Act is not maintainable and it further held that the claim of the Defendants can be considered under section 236(1) of the Orissa Tenancy Act. It was also said that the Additional Tahasildar has no jurisdiction to take up the case under section 236(1) of the Orissa Tenancy Act. He, therefore, transferred the matter to the Tahasildar for disposal for disposal. Against that order, the Plaintiffs filed OLR Appeal No.44 of 1984 before the Officer on Special Duty, Land Reforms, (OSD) Khurda and by the order dated 29.07.1985 S.A. No.347 of 2001 Page 3 of 8 {{ 4 }} passed in the said OLR Appeal and by order dated 02.11.1985 in OLR Review Case No.4 of 1985, the impugned order passed by the Additional Tahasildar was set aside. It is the contention of the Plaintiffs that after the aforesaid order of the OSD, the Defendants have no manner of right, title and interest over the suit land. The Defendants having no right, title and interest of the suit land when taking advantage of the entry of their father’s name way back in the year 1928, are claiming to record the suit land and threatening the Plaintiffs, filed the suit. 4. The Defendant No.1 supported the case of the Plaintiffs. The, Defendant No.2 however contested the suit. While traversing the plaint averments, it is stated that two plots as per 1928 settlement record i.e., plot nos.6330 & 6331 corresponding to half area of plot no.6012, 6013 & 6014 of 1912 settlement, which was recorded in the names of Sounti and Punei, the two sons of Bhobani. Bhobani and Sribanta were two brothers. Pira Swain is the son of Sribanta, who is their grandfather. It is stated that Plot Nos.6012, 6013 & 6014 of 1912 settlement in total measuring Ac.0.23 decimals out of which the father of the Defendants, who is the son of Sribanta was possessing half measuring around Ac.0.11 decimals, which corresponding to the area of two suit plots. The father of the Defendants had constructed two rows of houses consisting of 12 rooms over there. However, in the settlement of the year 1912, the name of Sribanta and Punei has only been recorded with respect to Plot Nos.6012, 6013 & 6014 as they were representing the elder branch of Defendants father Piru, who happens to be son of Bhobani. The Defendant has contended that the house over the suit land is their ancestral house and it is since the time of their grandfather Sribanta. It is also stated that the suit land is separate from the homestead land of the Page 4 of 8 S.A. No.347 of 2001 {{ 5 }} Plaintiffs by fencing. It is further stated that the grandfather of the Plaintiffs, namely, Kukunda Behera, being a rich and influential person of the village manipulated and got the suit land recorded in 1928 settlement in his name as stitiban tenant making Pira Swain, the father of the Defendnats as sikim tenant under him. They say that this recording of the land in 1928 settlement with respect of the suit land is wholly erroneous as Pira Swain was possessing the suit land as sikim tenant since the time of his father Sribanta. It is further stated that Pira Swain, on 06.03.1947 and as such even he was a sikim tenant with respect to the suit land, which is house and homestead in nature, has acquired the right of occupancy in respect of the suit plots as per the amendment carried out in section 236 of the Orissa Tenancy Act in the year 1946. The Defendnats, being the successors-in-interest of Pira Swain, claimed to be having the occupancy right over the suit land. In the alternative, they have taken the plea acquisition of title over the suit land by way of adverse possession. 5. On the above rival pleadings, the Trial Court, having framed thirteen issues in total, has answered the crucial issues against the Plaintiffs and accordingly the suit has been dismissed. Said findings returned by the Trial Court, being confirmed by the First Appellate Court, the Plaintiffs have finally been non-suited. 6. The Appeal has been admitted to answer the following substantial question of law:- “Whether after the death of sikim tenant in the year 1936, possession of his sons shall be considered to be permissive or that of trespassers”. 7. Heard Mr.Sambit Rath, learned counsel for the Appellants and Mr.R.K.Mohanty, learned Senior Counsel for the Respondents. Page 5 of 8 S.A. No.347 of 2001 {{ 6 }} 8. In order to find out the answer to the substantial question of law, as aforesaid, it would be profitable to place the Full Bench decision of this Court in case of Daitary Swain –V- Kartika Swain and Others; 2019 (1) ILR 659. The following proposition of law had been referred to the Full Bench for decision:- “a.What is the status of a Sikimi tenant?; b. Whether right of the Sikimi tenants in respect of agricultural is different and distinct?; land vis-à-vis homestead c. Whether the Sikimi right in respect of agricultural land is heritable and transferable?; and d. Whether the Sikimi right in respect of homestead is heritable and transferable?” 9. It has been held that the amendment introduced by the Orissa Act 29 of 1976 has made a sea change in the status of sikim tenant in respect of the land under personal cultivation of such tenant. The correct position with regard to the sikim tenant so far as agricultural land is concerned has been held as under:- “Therefore, in our opinion the correct position with regard to right of Sikimi tenant so far as agricultural land is concerned is that after amendment of the Clause (i) of Sub-Section (1) of Section-4 of the “OLR Act”, such Sikimi tenancy has become both heritable and transferable”. It has been further held that:- “8.4 No doubt without complying the provisions of Sub- Sections (5) to (8), a Sikimi tenant cannot become a raiyat but that does not in any way affect his rights as a Sikimi tenant to transfer the agricultural land and the right of his legal heirs to inherit the same. The Clause (i) of Sub-Section (1) of Section 4 of the “OLR Act” cannot be read to mean S.A. No.347 of 2001 Page 6 of 8 {{ 7 }} that only after being declared as a raiyat, the Sikimi tenancy of a Sikimi tenant can become heritable and transferable; and 8.5 In other words, even without being declared as a raiyat by virtue of the amendment of Clause (i) of Sub-Section (1) of Section-4 of the “OLR Act” as per Act-29 of 1976, a Sikimi tenant can transfer his cultivable/agricultural land and his legal heirs can inherit the same. Therefore, the attempt made by Mr. Pradhan, learned Additional Government Advocate to show that a Sikimi tenancy cannot be transferred and inherited unless a declaration under Sub-Section (5) of Section-4 of the “OLR Act” cannot be accepted as the same runs contrary to the intention of amended Clause (i) of Sub- section (1) of Section-4 of the “OLR Act”.
Decision
In the result, the Appeal stands dismissed. However, there shall be no order as to cost. (D. Dash), Judge. Basu S.A. No.347 of 2001 Page 8 of 8