Civil Suit No. 85 of 2006 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 342 of 2017 [In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908. --------------- AFR Ananda Devi Singh & Others ...… Appellant -Versus- Gajraj Singh @ Gajraj Singhdeo @ Birendra Kumar Singh & Others ….. Respondents Advocate(s) appeared in this case :- _________________________________________________________ For Appellants : M/s. Ajit Kumar Hota, & D.P. Dash, Advocate For Respondents: M/s. Sanjeev Udgata, S. Udgata & A. Mishra, Advocates [For Respondent No.1] M/s. Bibekananda Bhuyan, S. Udgata, S.S. Mohapatra & S. Sahoo, Advocates. [ For R 3 to 5 & 7 to 9] _______________________________________________________ CORAM JUSTICE SASHIKANTA MISHRA Page 1 of 31 JUDGMENT 22nd November, 2024 SASHIKANTA MISHRA, J. This is a plaintiff’s appeal against a reversing judgment. Judgment passed by learned Addl. District Judge, Jharsuguda on 22.07.2017 followed by decree in RFA No. 13 of 2015 is impugned, whereby the judgment dated 24.02.2015 passed by learned Civil Judge (Sr. Division), Jharsuguda followed by decree in Civil Suit No. 85 of 2006 was reversed. 2. For convenience, the parties are referred to as per their respective status in the trial Court. 3. The plaintiff filed the suit for declaration of her right, title and interest and that of the proforma defendant Nos. 7 to 10 of the suit land, confirmation of possession and alternatively recovery of possession, if found to be dispossessed during the pendency of the suit. 4. The genealogy given below shows relationship between the parties. Page 2 of 31 Jayadev Singh (dead) 1st wife (dead) 2nd wife (dead) Debendra(D.3) Khatindra Manimohan Gourishankar @ Maninda(D2) = Kanak Manjari(D.4) Gajraj(adpt)(D.l) Basanta(D.5) Bhubaneswar(D.6) Ganeswar Singh (dead) Prasanna (dead) Harihar (dead) = Anand Devi Singh (P) Shibashankar(D.7) Laxman(D.8) Deepak(D.9) Santanu(D.10) 5. The suit plot appertains to Hamid Settlement (HS) Plot No. 67/9 measuring Ac.8.00 dec. under Khunti No.1, corresponding to Major Settlement(MS) Plot No. 74 and Khata No. 113, further corresponding to Mutation Plot No. 74/1374 under Khata No. 108/47 of Mouza-Kirarama. 6.
Facts
The case of the plaintiff, briefly stated, is that the predecessor-in-interest of the plaintiff and proforma defendant Nos. 7 to 10 namely, Ganeswar Singh was a land oustee under the Hirakud Dam Project. Several properties belonging to said Ganeswar Singh and others in the Mouza was acquired for the said project. As per the settlement Page 3 of 31 policy, the State Government allotted properties to the oustees. As per Revenue Misc. Case No. 176/1956-57, the then Addl. Commissioner of Hirakud Land Organization settled the suit land in favour of Ganeswar Singh with the stipulation that the land should be reclaimed within two years from the date of order i.e., 17.08.1957. It is stated that late Ganeswar reclaimed the land and continued to possess the same having exclusive right, title and interest. Pursuant to Revenue Department letters dated 17.07.1990, 22.05.1990 and 22.09.1997, the concerned Tahasildars were directed to take up mutation of the allotted properties after making due enquiry. As such, the Tahasildar, Lakhanpur vide order dated 29.08.2000 and 01.11.2000 directed recording of the properties jointly in the name of the plaintiff and all the defendants instead of recording the same exclusively in the name of Ganeswar Singh. Though the plaintiff objected before the Tahasildar but the same was not considered. Moreover, the order of mutation was passed without issuing notice to the legal heirs of Ganeswar Singh nor any field enquiry was made. It is alleged that the said order was obtained by defendant No.1 Page 4 of 31 and his other brothers. When the above fact came to the knowledge of the plaintiff, a Mutation Appeal was filed, being 12/2013 before the Sub-Collector, Jharsuguda but the appeal was dismissed vide order dated 16.09.2005. Taking advantage of joint recording of the suit properties, the defendants obtained an order of partition in Mutation Case No. 425 of 2001 but the same was set aside in appeal by the Sub-Collector, Jharsuguda. Under such facts, the plaintiff filed the suit seeking the relief as stated hereinbefore. 7. The case of the contesting defendants, who filed a joint written statement is that both parties are descendants of the common ancestor, Jayadev Singh. While the plaintiff and defendant Nos. 7 to 10 are the legal heirs through his first wife, Bhagabati, the contesting defendants are the legal heirs through his second wife, Chaaya Devi, whom Jayadev had married after death of Bhagabati. The common ancestor, Jayadev was the recorded tenant of the properties under Khunti No.1 measuring an area of Ac.103.86 dec. and Khunti No.2 measuring Ac.79.81 dec. in the Hamid Settlement. After Page 5 of 31 death of Jayadev, Ganeswar being his eldest son was looking after the affairs of the family, during which the properties came to be acquired for the Hirakud Dam Project. By then Jayadev was already dead, for which the notification was issued in favour of Ganeswar, he being the Lambardar Zamidar/Gountia. It is further stated that the properties of common ancestor being acquired for the Hirakud Dam Project, all his legal heirs have right, title and interest over the same. During Major Settlement, other properties of Jayadev Singh under MS Khata No. 64, 65 and 110 of the same Mouza were jointly recorded and all legal heirs are in peaceful possession without any partition by metes and bounds. During the year 1997, the above properties were partitioned with the consent of co-sharers. Thus the properties acquired for the Hirakud Dam Project being the property of Jayadev and not exclusively of Ganeswar, the other properties allotted by the State, i.e. the suit property is the property of both parties. For the above reason, the properties were jointly recorded in the Mutation Case No. 7 of 1998 and the appeal was rightly dismissed by the Sub-Collector. Basing on the rival Page 6 of 31 pleadings, the trial Court framed the following issues for determination. 1. Whether the suit is maintainable? 2. Whether there is cause of action to bring the suit? 3. Whether the suit is barred by any other law to this Court has no jurisdiction and entertain the suit? 4. Whether the mutation of the suit in favour of the defendants No.l to 6 in respect of „A‟ schedule land is void? 5. Whether the plaintiff and Pro-forma defendants No.7 to 10 have right, title and interest over „A‟ schedule land? 6. Whether their possession over the suit land can be confirmed? 7. Whether the possession of the suit land can be delivered in favour of the plaintiff and Pro-forma defendant Nos.7 to 10 in case they are found dispossessed of during the pendency of the suit? 8. Whether the plaintiff is entitled to any other relief or reliefs as prayed for? 9. To what other relief or reliefs, the plaintiff is entitled to? 8. Issue Nos. 4 and 5 being the important issues, were taken up together for determination at the outset. The trial Court held that the only point which needed consideration was whether all the sons of Jayadev Singh, in whose name the land acquired for Hirakud Dam Project was exclusively recorded, are entitled to equal share over the suit land in respect of which D.C. Patta had been issued exclusively in the name of Ganeswar Singh as land oustee of the Project. The trial Court further found from the Page 7 of 31 pleadings that Jayadev Singh died in the year 1950. Each of his sons being a coparcener in the joint Hindu family had equal right under the old Hindu Law. The said property was the ancestral property of Jayadev Singh as he was the Kharposhdar Zamidar of the village, which was acquired by him from his ancestor by inheritance and succession. The trial court further noted that it was not the case of the parties that any land of MS Khata No. 64, 65 and 110 of the Mouza had been acquired for the project but it showed that the sons of Jayadev were separate and separately possessing the lands inherited by them. As regards the Hamid Settlement Khunti Nos. 1 and 2, major portion of the land was acquired for the project. The settlement in OEA Case No. 29/70 in respect of the portion of HS Khunti No.1 in the name of all co-sharers does not by itself indicate as to why D.C. Patta in respect of suit land was granted in the name of Ganeswar Singh alone. Ordinarily, even if the settlement was in the name of one co-sharer it would enure to the benefit of all but having held so, the trial court on further scrutiny of the D.C. Patta marked Ext.2, found that the same was issued in the name Page 8 of 31 of Ganeswar Singh alone as land oustee. Further, from Ext.1, which is the notification dated 03.09.1955 of Hirakud Dam Project, Ganeswar Singh was the rayat in respect of HS Khunti No.1 and he and his brothers were rayats in respect of HS Khunti No.2. The brothers of Ganeswar never challenged the grant of D.C. Patta in the name of Ganeswar Singh alone before any competent authority or by filing a suit. The trial Court also noted that no reason was cited for grant of DC Patta in the name of Ganeswar Singh alone. The trial Court further took note of the fact that as per decision taken in a high level meeting held on 17.12.1996, it was specifically decided that Mutation in favour of D.C. Patta holders or their their legal heirs should be done through a special drive. Accordingly, D.C. Patta Mutation Case No. 7/98 was initiated, whereby the land was mutated in favour of all the successors of Jayadev Singh. The trial Court held that the Tahasildar had not considered the fact that D.C. Patta in respect of the suit land was issued only in favour of Ganeswar Singh and therefore, could not have gone beyond the same. The Tahasildar was never instructed by the Government to Page 9 of 31 mutate the allotted lands in favour of successors of originally recorded tenants of HS Khunti from which the land was acquired. So the mutation of the suit land in the names of all the successors of Jayadev Singh and the order of the Sub-Collector upholding the same in appeal are beyond the instructions of the Government. The trial Court further took note of the Article (sic) 230 (3) of Mulla’s Hindu Law that Government grant in favour of one member of the family is his separate property unless it appears from the grant that it was intended for the benefit of the family. Ext.2 being the D.C. Patta did not mention anything to show that it was intended for the benefit of the family. Thus, the trial Court held that the order passed by the Tahasildar in the Mutation Case and the order passed by the Sub-Collector confirming the same in appeal did not confer any right, title and interest on defendant Nos.1 to 6 nor can it operate to take away the exclusive right, title and interest of the plaintiff and proforma defendant Nos. 7 to 10. 9. On such findings on the main issue, the remaining issues were answered accordingly and the suit Page 10 of 31 was decreed by declaring the right, tittle and interest of the plaintiff and defendant Nos. 7 to 10 over the suit land and by confirming their possession. 10. Being aggrieved, the contesting defendant Nos. 1 to 6 carried the matter in appeal. Considering the grounds cited in the appeal and the contentions raised by the parties, the first appellate Court framed the following point for determination: in the suit the present is “Whether maintainable and whether the respondents have got exclusive right, title and interest over the said properties and their possession over the same is required be confirmed or the suit property is the joint property of both parties ? form 11. The First Appellate Court analyzed the entire evidence and documents on record and held that Ganeswar being the eldest son of Jayadev and Lambardar Gountia, must have been allotted the suit property not in his individual capacity but in the capacity of eldest member of the family. The D.C. Patta (Ext.2) is to be treated as letter of allotment and not conferring exclusive title in favour of Ganeswar. Before confirmation of title, sufficient procedure was to be followed and the property was to be settled by the concerned Tahasildar. The plaintiff had not proved that Page 11 of 31 Ganeswar had complied with the direction of the authorities to reclaim the property in his individual capacity. According to the First Appellate Court, the trial Court erred by placing undue emphasis on Ext.2. The First Appellate Court further found that there was no proof in support of the claim of the partition, particularly in respect of the properties acquired for the Hirakud Dam Project. Since the common ancestor, Jaydev is the recorded tenant of the property recorded under Khunti No.1 and 2 and in the absence of anything to show as to why Khunti No.1 was recorded exclusively in the name of Ganeswar, the plaintiff cannot take advantage of the notification (Ext.1) so as to claim exclusive title. In the absence of any clear proof of partition between the parties or their predecessor in interest, it cannot be said that the suit property was exclusively meant for the plaintiff and proforma defendants but it was for the benefit of the entire family. The First Appellate Court further held that the suit was barred by limitation under Article 58 of the Limitation Act. The appeal was thus allowed by declaring that both parties Page 12 of 31 have got right, title and interest over the suit properties and their possession was confirmed. 12. Being further aggrieved, the plaintiff and proforma defendants have filed this appeal, which was admitted on the following substantial questions of law. (i) Whether the learned Trial Court/Civil Court had no jurisdiction and powers, and thereby wronged itself by trying the Suit, on the face of right, the present title, interest and possession of appellants, being illegally encroached upon by the present Respondents behind the back of the present appellants, by the orders of fiscal tribunals contrary to the Resettlement Scheme/Policy (Ext.4) under the deliberate nexus and collusiveness particularly with Resp. no.1? (ii) Whether on the basis of order of allotment of suit property in favour of Ganeswar Singh in Exts. 2 and 3, Civil Court has power to sit over the finding of the order in Exts. 2 and 3, and say that it was inured to the benefit of the family members? (iii) Whether the learned First Appellate Court / Addl. District Judge erred in law in holding that the suit is barred by the Sec. 58 of the Limitation Act? (iv) Whether the learned First Appellate Court / Addl. District Judge erred in law in ignoring the statutory provisions of Rule 6(2) of OGLS Rules, and the Resettlement Scheme dt. 22.5.1990 at Ext. 4 for the purposes of mutation of land allotted with D.C. Patta during the years 1957-61 as at Exts. 2 and 3 ? (v) Any other substantial question of law to be formed at the time of hearing.” 13.
Legal Reasoning
issued way back in 1957, the position of law as reflected in Article 230(3) of Mulla’s Hindu Law referred by the Trial Court (corresponding to Article 228(3) of Mulla’s Hindu Law, Twentieth Edition), the property granted by the Government to a member of the joint family becomes his separate property unless it appears from the grant that it was intended for the benefit of the family. Law therefore, makes a distinction between other kinds of acquisition of lands and those by way of Government grant. The contention raised by the contesting defendants may hold good in case of other acquisitions but in so far as Page 22 of 31 Government grant is concerned, the position of law is as referred to hereinabove. Perusal of Ext.2 , which is the copy of the order passed by the Additional Deputy Commissioner, Hirakud Land Organization, Sambalpur on 17.08.1957 in Revenue Case No. 176 of 1956 regarding allotment of waste land from village Kirarama in Brajarajnagar PS contains the list of 19 allottees including Ganeswar Singh who was allotted with 8 acres. The said order, inter alia, reads as follows: “The report of the Addl. Tahasildar is seen and the villagers were also .......(illegible). The nineteen persons named in the allotment statement ... page 3/C of this record are allotted waste lands as described in the schedule below provisionally for the purpose of reclamation only. They will complete the reclamation within two years from this date failing which they will lose their rights under this order and the lands may be given away to other persons for reclamation. They may get their names mutated as the reclamation. they complete tenants after 16.3 As already stated, there is nothing on record to show that Ganeswar Singh had failed to comply with the condition of reclaiming of land within the stipulated period of two years. Thus, from what has been narrated hereinabove and particularly, considering the fact that the other co-sharers had never challenged the order under vide Page 23 of 31 Ext.2 or the actual allotment vide Ext.3, it cannot be held that the land so allotted to Ganeswar Singh would enure to the benefit of the other co-sharers. It must be noted that the First Appellate Court has proceeded on the presumption that Ganeswar being the eldest son of Jayadev and Lambardar/Gountia must have been allotted the suit property not in his individual capacity but in the capacity of the eldest member of the family. Further, the observation of the First Appellate Court that the trial Court has taken into consideration extraneous materials like allotment of properties in the name of the sons of another allottee, named, Kokia is a product of misreading of the trial Court’s order. In this regard it is pertinent to note that the trial Court, as an illustration had referred to other co- allottees under Ext.2 and drawn parallel therefrom to reject the arguments made by the contesting defendants that such major portion of land being granted in favour of Ganeswar Singh implies that the same was granted also in favour of his brothers. It is in this context that the trial Court referred to the allottees mentioned in Col No. 14, 15 and 16 where DC Patta had been issued in the names of Page 24 of 31 three sons of a co-allottee named Kokia in respect of 6 acres of land and therefore, held that had such being the intention of the Government, the names of brothers of Ganeswar Singh could also have been mentioned in other columns. This Court fully concurs with the above reasoning of the trial Court. The substantial question of law No.(ii) is answered accordingly. 17. Substantal Question No.(iii) (iii) Whether the learned First Appellate Court / Addl. District Judge erred in law in holding that the suit is barred by the Sec. 58 of the Limitation Act? In this regard Mr. Hota would argue that the finding of the first appellate Court that the suit was barred by limitation as per Article 58 of the Limitation Act is erroneous for the reason that the suit being filed for declaration of right, title and interest and possession, Article 58 has no application rather, Article 65 applies to the case which provides the prescribed period of 12 years. As regards the other prayer i.e., for a declaration that the contesting defendants have no right to be settled with the land, Article 58 applies whereby the prescribed period is three years from the date the right to sue first accrues. Page 25 of 31
Arguments
Heard Mr. A.K Hota, learned counsel for the appellants; Mr. S. Udgata, learned counsel appearing for Page 13 of 31 respondent No.1 and Mr. B. Bhuyan, learned counsel for other respondents. 14. The rival contention of the parties would be referred to while answering the substantial questions of law framed individually. 15. Substantial question No.(i) (i) Whether the learned Trial Court/Civil Court had no jurisdiction and powers, and thereby wronged itself by trying the Suit, on the face of right, title, interest and possession of the present appellants, being illegally encroached upon by the present Respondents behind the back of the present appellants, by the orders of fiscal tribunals contrary to the Resettlement Scheme/Policy (Ext.4) under the deliberate nexus and collusiveness particularly with Resp. no.1? Mr. Hota would submit that admittedly Khunti No.1 was recorded exclusively in the name of Ganeswar, while Khunti No.2 in the names of all co-sharers. As per the D.C. Patta marked Ext.2, the property of Ganeswar being acquired, he was allowed to reclaim the allotted land in lieu thereof. In the notification dated 22.05.1990, marked Ext.4, the procedure was laid down to allot the land to a genuine oustees as per D.C. Patta or his legal heirs and mutation proceeding was to be initiated in their names separately to decide tenancy rights. Therefore, on Page 14 of 31 the basis of D.C. Patta (Ext.2), the names of the legal heirs of Ganeswar ought to have been mutated but the Tahasildar in complete violation of the resettlement scheme and the D.C. Patta wrongly mutated the property in names of all the co-sharers. The Sub-Collector also dropped the Mutation Appeal for want of authority. As such, accordingly to Mr. Hota, the plaintiff and the proforma defendants had no other remedy available except to file the suit. 15.1 Per contra, both Mr. Udgata and Mr. Bhuyan have submitted that a Hindu family is always presumed to be joint unless proved otherwise and that mere separate recording as per the ceiling will not be akin to partition by metes and bounds. The defendants pleaded that they were separate but never stated that there was partition by metes and bounds. Since all the co-sharers were land oustees, any grant or allotment of land in lieu of the land acquired, even if made in favour of one co-sharer, shall always enure to the benefit of all co-sharers. 15.2 Admittedly, Jayadev Singh was the common ancestor. Ganeswar was his son through his first wife, Page 15 of 31 while the contesting defendants belong to the branch created by his four sons through his second wife. The Tahasildar, noting the above fact as also the possession of the defendants during field enquiry rightly allowed the mutation in their favour. The appeal preferred against the said order was dismissed. The question is, can the Civil Court sit in further appeal over the orders passed by the Revenue Authority. 15.3 From the pleadings and the rival contentions of the parties, it is seen that as per Notification No. 130 of the Hirakud Dam Project dated 03.09.1955, Ganeswar Singh was the rayat in respect of HS Khunti No.1 while Ganeswar Singh and his brothers (through the second wife) were rayats jointly in respect of HS Khunti No.2. Land from both HS Khunti Nos. 1 and 2 were acquired for the Hirakud Dam Project. D.C. Patta was however, granted only in the name of Ganeswar Singh. This was never challenged by the contesting defendants at any point of time nor any suit was filed by them seeking declaration of their right, title and interest over the said land granted vide D.C. Patta, marked Ext.2. It has been argued and rightly so, that D.C. Patta Page 16 of 31 does not by itself create a title but is only a letter of allotment. Such grant was subject to the condition that the allottee would reclaim the land within two years from the date of order i.e., 17.08.1957. It is not disputed that Ganeswar had reclaimed the land within the period for which notice of allotment was issued in his favour on 19.01.1961. As per the decision taken by the Government in Revenue Department, the concerned Tahasildars were directed to take up the matter for mutating and settling the names of the allottees or in the names of their legal heirs after due enquiry. The letter dated 22.05.1990, marked Ext.4, issued by the Additional Secretary to Government in Revenue Department and addressed to the RDC, Northern Division, Sambalpur lays down the detailed procedure to be followed for settlement of the land in favour of the oustees as was granted to them. The Tahasildar, Lakhanpur accordingly initiated a suo motu mutation case, the order sheet of which was admitted into evidence as Ext.5. The concerned R.I./Amin was directed to conduct field enquiry to ascertain the possession but most importantly, no notice appears to have been issued to the parties. The final order Page 17 of 31 of mutation appears to have passed entirely basing on the field enquiry conducted by the R.I./Amin. The Tahasildar appears to have been lost sight of the fact that the D.C. Patta was granted only in favour of Ganeswar Singh with the condition of reclaiming the land within two years, which he complied. Therefore, as per Ext.4, only the original allottee or his legal heirs are entitled to be settled with the land. The Tahasildar instead, basing on the genealogy of the parties settled the land in favour of all the co-sharers, which is contrary to the instructions of the Government referred above. There was no instruction by the Government to the Tahasildar to mutate the allotted lands in favour of the successors of the originally recorded tenants for HS Khunti from which land was acquired for Hirakud Dam Project. Therefore, the order of mutation as confirmed in appeal cannot be held to have been passed in conformity with the instructions of the Government. The plaintiff also claims title on the basis of the position of law enumerated in Article 230 (3) of Mulla’s Hindu Law to the effect that a Government grant in favour of a member of a joint family is his separate property unless expressly Page 18 of 31 intended for the benefit of the joint family. There is nothing in the D.C. Patta vide Ext.2 to suggest that it was so intended. Under such circumstances, there was no other remedy available to the plaintiff than to approach the Civil Court for appropriate relief. 15.4 The contentions of the contesting defendants that the Civil Court has no jurisdiction or power to adjudicate upon the dispute on the face of the orders passed by the Revenue Authority cannot be accepted. It is the settled position of law that exclusion of the jurisdiction of the Civil Court is not be readily inferred but must either be explicitly expressed or clearly implied. Even in cases where the statutory tribunal has not acted in conformity with the fundamental principle of judicial procedure, the Civil Court can interfere. The oft quoted judgment passed by a Full Bench of this Court in the case of Magulu Jal and others vs. Bhagaban Rai and others1 can be referred to, wherein the following observations were made. In Secy. of State v. Mask and Co., AIR 1940 the following their Lordships made 13. PC 105, observation : 1 AIR 1975 Orissa, 219 : ILR (1975) Cut 789 Page 19 of 31 law that is settled the exclusion of the "It jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." It is to be noted that even where the jurisdiction of the Civil Courts is excluded it has jurisdiction to examine cases if the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. In such view of the matter, substantial question of law No.(i) is answered accordingly. 16. Substantial Question of Law No.(ii) (ii) Whether on the basis of order of allotment of suit property in favour of Ganeswar Singh in Exts. 2 and 3, Civil Court has power to sit over the finding of the order in Exts. 2 and 3, and say that it was inured to the benefit of the family members? Mr. Hota would argue that the DC patta vide Ext.2 followed by the letter of allotment vide Ext.3 clearly shows the suit land to have been granted/allotted exclusively in the name of Ganeswar Singh. Such being the case, as per the Article 230 of Mulla’s Hindu Law, it would be the separate property of Ganeswar. Page 20 of 31 16.1 Per contra, both Mr. Udgata and Mr. Bhuyan would argue that admittedly the land is jointly recorded in the ROR. A Hindu Family is presumed to be joint. In the written statement, the contesting defendants have referred to separation but not partition by metes and bounds. Since all the co-sharers were land oustees, which was also proved in the field enquiry conducted in the mutation proceeding, all are entitled to be allotted with land. Thus, even though the D.C. Patta was for some reason granted exclusively in faovur of Ganeswar Singh, it would always enure to the benefit of all co-sharers, particularly in the absence of evidence regarding prior partition among them. 16.2 As has already been stated hereinbefore, the land under HS Khunti No.1 stood exclusively recorded in the name of Ganeswar Singh while the land under HS Khunti No.2 was recorded in the name of Ganeswar Singh and the other co-sharers. Land was acquired from both the Khuntis. DC Patta was however granted only in favor of Ganeswar Singh, which was never challenged by his other co-sharers. Such being the case, what would be the effect of such exclusive allotment in favour of one of the co- Page 21 of 31 sharers in absence of any partition by metes and bounds. It must however, be mentioned that there is some evidence regarding separate possession of MS Khata Nos. 64, 65 and 110 of the same Mouza by the co-sharers as Class-1 heirs of Jayadev Singh. Of course, no land from the aforesaid Khatas was acquired for Hirakud Dam Project. So it can at best be held that the co-sharers were possessing their lands separately but there is no clear-cut evidence regarding partition of the lands by metes and bounds. Even then, in the absence of any challenge to the DC Patta
Decision
Since the mutation appeal was disposed of on 16.09.2005, the right to sue accrues from that day and the suit having been admittedly filed within three years from such date, is therefore, within time. 17.1 Per contra, both Mr. Udgata and Mr. Bhuyan would argue that according to plaintiff, the cause of action arose on 29.05.2000 i.e., the first date on which the order of mutation was passed and in view of the relief claimed the suit should have been filed within three years as per Article 58. Further, even if the plea of limitation was not specifically raised, it is obligatory on the part of the Court as per Section 3 of the Limitation Act to be satisfied with regard to limitation. 17.2 Reference to the plaint would reveal that the following relief was claimed: (i) A declaration to the effect that the defendant No.l to 6 have no right to be mutated and/or settled in respect of schedule "A" land. (ii) That the plaintiff and proforma defendant No. 7 to 10 have right, title and to be settle with schedule "A" land their possession be confirmed and in alternative if court find that the plaintiff and defendants 7 to 10 have been disposed from the schedule land in the meantime than recovery of possession of the same from defendant 1 to 6 be ordered after evicting them there from. Page 26 of 31 Any other relief/relief‟s as the Court deems fit and proper and equity be also passed in favour of the plaintiff. Relief No.(i) quoted above is covered under the residuary Article i.e., Article 58 which reads as follows: Description suit of Period of limitation Time from which period begins to run 58. To obtain any other declaration Three years When the right to sue first accrues. 17.3 In paragraph-11 of the plaint the cause of action has been described in the following words: “That the cause of action of this suit arose at Village Kirarama within the jurisdiction of this court when mutation of defendants No.l to 6 were allowed and settlement of the same was made by Tahasildar, Lakhanpur on dtd.29.05.2000 and later when sub-Collector dismissed the mutation appeal No.12 of 2003 on 16.09.2003.” In view of evidence on record, Mutation appeal No. 12 of 2003 was actually disposed of on 16.09.2005 and not 16.09.2003 as stated in the plaint which appears to be a typographical error. 17.4 Thus, the mutation proceeding must be deemed to have attained finally on 16.09.2005. The suit was filed on 21.09.2006. Therefore, the relief at serial No. (i) above is Page 27 of 31 obviously within time. Further, then the relief claimed under serial No.(ii), being a declaration of the right, title and interest of the plaintiff and proforma defendant Nos. 7 to 10 along with possession, comes within the preview of Article 65 of the Limitation Act, which reads as follows: Description suit of Period of limitation from which Time period begins to run For possession of immovable property or interest therein based on title. any Twelve years the When the possession defendant of becomes adverse to the plaintiff. Therefore, if the prescribed period of 12 years is to be reckoned from 16.09.2003, the suit must be held to have been filed within time in so far as relief claimed in serial No.(ii) is concerned. Neither the trial Court nor the First Appellate Court have considered the matter from the above perspective. The substantial question of law No.(iii) is therefore, answered accordingly. 18. Substantial Question No.4 (iv) Whether the learned First Appellate Court / Addl. District Judge erred in law in ignoring the statutory provisions of Rule 6(2) of OGLS Rules, and the Resettlement Scheme dt. 22.5.1990 at Ext. 4 for the purposes of mutation of land allotted with D.C. Patta during the years 1957-61 as at Exts. 2 and 3 ? Page 28 of 31 Both Mr. Udgata and Mr. Bhuyan have argued that the land being granted by Government is governed by the provision under Section 3 of the Odisha Government Land Settlement Act, 1962 (OGLS Act). As per Section 7-B, jurisdiction of the Civil Court is barred. 18.1 Per Contra, Mr. Hota would argue that as per Rule-6 (2) of OGLS Rules, 1983, where reclamation schemes are undertaken for re-settlement of displaced persons, settlement of land reclaimed shall be made according to such scheme. But in the instant case, the scheme of resettlement as provided vide Exts. 2, 3 and 4 were violated by the Tahasildar in the Mutation Proceeding vide Ext.5. The appeal filed against such mutation order was dropped by the Sub-Collector. Therefore, the Civil Court has jurisdiction. 18.2 This Court by referring to the principle laid down in Magulu Jal(supra) has already held that the order of the Tahasildar as confirmed by the Sub-Collector in appeal was not in consonance with the procedure laid down by the Government for settlement of land in favour of the land Page 29 of 31 oustees of Hirakud Dam Project. Moreover, the order of mutation was passed without granting opportunity of hearing to the parties. Under such circumstances, the civil Court has jurisdiction to entertain the suit. In this context, the judgment of the Constitution Bench of the Supreme Court regarding exclusion of the jurisdiction of the Civil Court rendered in the case of Dhulabhai vs. State of M.P. and another2 would be relevant, wherein the following observation is noteworthy. “Exclusion of jurisdiction of the Civil Court by an express provision may not be complete bar to entertain a suit, if a party satisfies the Civil Court that the statutory provision has not been followed in conformity with the fundamental principles of judicial procedure. More so, the statutory tribunal must be competent to provide all remedies normally associated with the action of the Civil Court, which may be prescribed by the said statute or more. It was further laid down that the exclusion of jurisdiction of the Civil Court is not readily to be aforesaid inferred conditions are fulfilled.’” unless the 18.3 In such view of the matter, the contention advanced by learned counsel for the contesting defendants as referred above has no legs to stand. The substantial question of law No.4 is therefore, answered accordingly. 2 AIR 1969 SC 78 Page 30 of 31 19. Thus, from a conspectus of the analysis of facts, evidence, position of law and the rival contentions, this Court finds that the first appellate Court committed manifest error in reversing the judgment and decree of the trial Court and in declaring that both parties have right, title and interest over the suit properties with confirmation of their possession. For the reasons indicated above, it is evident that the judgment passed by the first appellate Court cannot be sustained in law and therefore, warrants interference. 20. In the result, the appeal succeeds and is therefore, allowed. The impugned judgment passed by the First Appellate Court is hereby set aside and the judgment and decree passed by the Trial Court is hereby confirmed. Parties to bear their own costs. Judge …………….……………. Sashikanta Mishra, Orissa High Court, Cuttack The 22nd November, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Nov-2024 18:49:24 Page 31 of 31