The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.78 of 2000 Siba Charan Bhoi (Dead) By LRs …. Appellants Mr. Budhiram Das, Advocate -Versus- Bhikari Bhoi and Others …. Respondents Mr. Amit Kumar Nath, Advocate CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:31.07.2023 1. Instant appeal under Section 100 of the Civil Procedure Code, 1908 is at the behest of the appellants challenging the correctness, legality and judicial proprietary of the impugned judgment and decreed dated 24th January, 2000 promulgated in Title Appeal No.23 of 1994 by the learned Civil Judge (Senior Division), Sonepur, whereby, the decision in Title Suit No.31/12 of 1980-92 by the learned Civil Judge (Junior Division), Rampur was set aside thereby dismissing the suit on the ground that the same is not maintainable. 2. The predecessor-in-interest of the appellants as the original plaintiff instituted the suit in T.S. No.31/12 of 1980-92 against defendant No.1 and the respondents for a declaration that the registered Sale Deed No.389 dated 4th March, 1960 executed by the vendor in favour of the predecessor-in-interest of respondents to be invalid, inoperative and illegal and permanent injunction
Legal Reasoning
restraining the defendants from interfering in his peaceful SA No.78 of 2000 Page 1 of 11 Siba Charan Bhoi (Dead) By LRs Vrs. Bhikari Bhoi and Others possession vis-à-vis the suit schedule land. As per the appellants, the suit land originally belonged to a Gaontia corresponding to Consolidation Plot Nos.458 and 459 under Khata No.179 and after abolition of Gaontia system in the Ex-State of Sonepur, the same and other lands of the Estate in question stood vested with the State free from all encumbrances, whereafter, he was inducted as a ‘Bhago Chasi’ in the year 1952 and ever since then, the possession of it lies with him, inasmuch as, such induction is by virtue of a Stamp Deed dated 21st September, 1965 and in so far as, Sale Deed No.398 dated 4th March, 1960 is concerned, the predecessor-in-interest of respondents cannot and could not have acquired any interest over the schedule land in view of the fact that the vendor as Gaontia had limited right and did not have the authority to execute the same after the Estateship was abolished. With the above claim, the original plaintiff sought for a declaration that the deed is invalid and not biding to him. The learned Civil Judge (Junior Division), Rampur after considering the pleadings of the parties and the issues framed decreed the suit and declared the deed in question as void and as a corollary, restrained the respondents permanently from entering into the suit land and interfering with his possession over the same. The respondents being aggrieved filed appeal before the Lower Appellate Court which was disposed of vide the impugned judgment and decree dated 24th January, 2000 in Title Appeal No.23 of 1994 and overruled the decision of the court below and held that the suit is not maintainable and no injunction can be directed against the respondents, who are the title holders. The aforesaid decision in appeal is presently under challenge before this Court. SA No.78 of 2000 Page 2 of 11 Siba Charan Bhoi (Dead) By LRs Vrs. Bhikari Bhoi and Others
Legal Reasoning
3. Heard Mr. Das, learned counsel for the appellant and Mr. Nath, learned counsel for the respondents. 4. Mr. Das submits that the suit land is a Bhogra interest belonging to the Gaontia and he was in possession of the same prior to the vesting and had executed Stamp Deed dated 21st September, 1965 acknowledging him as a ‘Bhago Chasi’ and therefore, the sale deed executed in favour of the processor-in- interest of the respondents on 4th March, 1960 is invalid and not sustainable in the eye of law as Gaontias did not have any proprietary title in respect of Bhogra lands which were only to be enjoyed towards the remuneration with limited rights. In other words, according to Mr. Das, since the vendor of the alleged sale deed had no right of transfer in any manner except by way of lease for a short period and the fact that the Gaontia system was abolished by a Press Note issued by the Government on 2nd February, 1956 and all the lands vested with the State, the alienation in question is, therefore, invalid which was rightly held so by the learned Trial Court. Furthermore, according to Mr. Das, the respondents claimed that title on the basis of the sale deed but never filed any claim for settlement and hence, do not have any interest over the suit land. It is also submitted that the possession of the schedule land lies with the appellants which has been admitted during trial from the side of the respondents and in so far as the dispute between the parties is concerned, the matter is before the concerned authority under Section 36-A of the OLR Act to declare original plaintiff as a tenant and at the same time, Consolidation Revision No.965 of 1982 is subjudice as it was filed since the land records were prepared in the name of the respondents with note of possession in their favour. It is contended that since the final Record of Right is under challenge SA No.78 of 2000 Page 3 of 11 Siba Charan Bhoi (Dead) By LRs Vrs. Bhikari Bhoi and Others before the Consolidation Authority and the fact that a proceeding under Section 36-A of the OLR Act to be still pending, the learned Lower Appellate Court fell into serious error while interfering with the findings of the Trial Court morefully when Consolidation Authority does not have the jurisdiction to declare the sale deed as invalid and permanently injunct the respondents which can only be entertained by a civil court. So, therefore, Mr. Das contends that the learned Lower Appellate Court committed gross illegality to hold that the suit is not maintainable and at the same time, declared the title in favour of the respondents considering them as the owners in respect of the suit land by virtue of the alleged sale deed of the year, 1960. In other words, the contention is that the decision of the Trial Court declaring the sale deed void and inoperative and not binding to the appellants was erroneously overruled in appeal. 5. On the contrary, Mr. Nath, learned counsel for the respondents submits that the predecessor-in-interest of the respondents was the owner of the schedule land and the sale was complete notwithstanding the fact that there is an endorsement on the reverse side of the deed in question and all the more when, consideration money was paid to the vendor. It is contended that such endorsement without cancellation of the sale deed which is again a self-made statement does not have any value, inasmuch as, on receipt of the consideration money, the same was complete in all respect transferring the ownership to the vendee, namely, the predecessor-in-interest of the respondents, the fact which was rightly appreciated and taken cognizance of by the learned Lower Appellate Court. That apart, Mr. Nath submits that merely because cases are pending before OLR and Consolidation Authorities pending adjudication by itself cannot SA No.78 of 2000 Page 4 of 11 Siba Charan Bhoi (Dead) By LRs Vrs. Bhikari Bhoi and Others create or extinguish any right in the respondents or the original defendant No.1, for that matter. Mr. Nath contends that the Lower Appellate Court did not commit any error or illegality and correctly overruled the judgment of the Trial Court which declared the sale deed as void. 6. The following substantial questions of law are formulated: (i) Whether the finding of the learned Lower Appellate Court to the effect that the vendor was divested of his interest in the suit property through the sale deed is sustainable in law in view of admitted vesting of the same with the State in 1956 by a Press Note of the Government without its settlement in favour of the Gaontia by the competent Authority in law? (ii) Whether the finding that the subsequent endorsement on Sale Deed No.389 dated 4th March, 1960 can have the effect of nullifying the sale in view of Section 47 of the Indian Registration Act? (iii) Whether the learned Lower Appellate Court was right in reaching at a conclusion that the decision of the Consolidation Authority vis-à-vis right, title and interest operates as res judicata in view of the pendency of the dispute before the Revisional Authority under the OCH & PFL Act as well as the proceeding under Section 36-A of the OLR Act? (iv) Whether the learned court below was rightly in applying Section 43 of the Transfer of Property Act while considering the genuineness of the sale deed? (v) Whether the finding of the learned Lower Appellate Court that even believing the possession of the suit land by the appellant, the same is not sufficient to injunct the respondents is tenable in law morefully when the Consolidation Authority in appeal directed to record his note of possession in the Record of Right? 7. The sale deed was executed by the Gaontia on 4th March, 1960 in favour of the predecessor-in-interest of the respondents. SA No.78 of 2000 Page 5 of 11 Siba Charan Bhoi (Dead) By LRs Vrs. Bhikari Bhoi and Others The schedule land is claimed to be a Bhogra interest and according to learned counsel for the appellants, the Gaontia had no proprietary right over the same which is normally enjoyed as remuneration for management of a village. Mr. Das, while contending so, refers to a judgment of this Court in the case of Magulu Jal and others Vrs. Bhagaban Rai and others AIR 1975 Ori 219. It is contended that in the aforesaid decision, there has been a detailed discussion with regard to the rights of Gaontias in the erstwhile system. While considering the report on Land Tenures and the Revenue System of the Orissa and Chhattisgarh States referred to in the aforesaid decision, Mr. Das further contends that the Gaontias did not have the liberty to alienate or partition such interest. It is contended that the reference is also with respect to the Bhogra lands to be not transferred by sale, gift etc. and any such Gaontia responsible for it shall be liable to be ejected for such conduct. A limited right, as according to Mr. Das, had with the Gaontias to lease out the Bhogra lands not for a longer period than one year with the sanction of the then Ruler. The said decision also discussed the reports of ‘Ramadhyani’ and ‘Bhumi Bidhi’ which are to be effect that the Gaontias had no proprietary rights in the Bhogra lands which were enjoyed as remuneration only, rather, the rights were precarious and as such, they had no right of transfer in any manner excepting by way of lease for a short duration and liable to be evicted for contravention of law unless the Ruler condoned the delinquencies. So Mr. Das submits that not only the Gaontia has a limited right without any authority to transfer the suit land except by a lease for a shorter tenure subject to sanction of the Ruler but also the schedule land stood vested with the Government by the time the alienation was made, therefore, the predecessor-in-interest of the respondents could not have acquired any title over the same but then the SA No.78 of 2000 Page 6 of 11 Siba Charan Bhoi (Dead) By LRs Vrs. Bhikari Bhoi and Others dispute between the parties with rival claims over the schedule land is a matter of adjudication pending in Consolidation Revision No.965 of 1982. In other words, as it is made to understand the respondents claimed title over the suit land on the basis of the registered sale deed which was alleged to have been not acted upon in view of the endorsement dated 11th February, 1961 on the back side of it. In fact, during the Consolidation operation, the respondents filed objection under Section 9 of the OCH & PFL Act and thereafter, the matter was carried in Consolidation Appeal No.1 of 1982 and finally landed up in Consolidation Revision Case No.965 of 1982 which is at the instance of the appellants is said to be awaiting disposal. So to say, the question of title is not yet finalized by the Authority due to pendency of Consolidation Revision No.965 of 1982. If such a dispute is stated to be pending which is in respect of right, title and interest vis-à-vis the schedule land and still to be determined and no doubt, a decision on declaration of a deed as invalid cannot be gone into by the Consolidation Authority but it may consider as an ancillary to the question of title. Of course, the Consolidation Authority also does not have a right to grant injunction which is the jurisdiction and lies within the domain of the Civil Court, nevertheless, the parties as it appears are in litigating terms in Consolidation Revision No.965 of 1982. Whether the respondents do have the title in view the sale deed or not and the issues with regard to the alleged sale and if the Gaontia vendor had the right alienate in view of the claim that by then the vesting had already taken place is a matter for a decision by the Consolidation Authority. It is right to claim that in case of vesting, the sale in favour of the predecessor-in-interest of the respondents is invalid. Not only that, the Gaontia, who said to have alienated the suit land, did possess a limited right by way of SA No.78 of 2000 Page 7 of 11 Siba Charan Bhoi (Dead) By LRs Vrs. Bhikari Bhoi and Others a sale, gift etc. unless it was settled with him. In any case, since the matter is subjudice in Consolidation Revision No.965 of 1982, the Court refrains itself from rendering any such decision on title which may even be based on possession. Nevertheless, the title is claimed by the respondents on the strength of the alleged sale deed. Anyhow, as the matter is before the Authority concerned, the same with the question of title would be decided on disposal of Consolidation Revision No.965 of 1982. 8. In so far as, the proceeding under Section 36-A of the OLR Act is concerned, it is not in dispute. Mr. Nath, learned counsel for the respondents submits that the suit land was never settled with the original appellant and in view of the title of the respondents, the latter cannot be injuncted. In reply, it is claimed that the sale deed was not acted upon as the same contained an endorsement. Again, according to the Court, in view of the fact that the matter is before the OLR Authority, it shall be examined finally against the backdrop that the very authority to sale the suit land by the Gaontia has also been questioned. In fact, the original appellant claimed himself a Bhogra tenant under the Gaontia on account of a Stamp Deed dated 21st September,1965 which is later to the alleged sale deed of 1960. If by a Press Note, the Gaontia system was abolished on and from 2nd February, 1956, in that case, the suit land would have to be held to have vested even prior to the execution of the sale deed. The original appellant claimed himself as a Bhogra tenant under the Gaontia has in the meantime approached the Authority under Section 36-A of the OLR Act to declare him as a tenant under the State which is stated to be pending in OLR Revision Case No.7 of 1984 after the order of this Court in OJC No.1870 of 1984 which was at the instance of the respondents and was dismissed with the observation that the OLR SA No.78 of 2000 Page 8 of 11 Siba Charan Bhoi (Dead) By LRs Vrs. Bhikari Bhoi and Others Authority shall reconsider the matter after providing opportunity of hearing to both the sides. As per Section 36-A of the OLR Act, a tenant becomes a raiyat after a decision by the Authority and hearing of the parties interested in consultation with the Local Committee with a declaration that the land in cultivation of the tenant to be non-resumable and would determine the fair and equitable rent and compensation payable by the tenant in respect of the land in accordance with the provision of Section 28 thereof. So, as per the above provisions, either on an application or suo motu at the instance of local Revenue Authority, a tenant may be declared as a raiyat with a general notice and procedure followed as per the OLR Act and Rules made thereunder. So when the original appellant is already before the OLR Authority for determination under Section 36-A of the OLR Act, it can be said that he is not yet declared as a raiyat under the State being a Bhago tenant as he was under the Gaontia before vesting. As earlier mentioned, the Stamp Deed is of the year 1965 which is again after the Press Note dated 2nd February, 1956 subject to verification. Whether all the Gaontia lands had vested by 2nd February, 1956 by the time the Stamp Deed was executed acknowledging the appellant as a ‘Bhago Chasi’ is a matter of examination which in any case shall be taken up while disposing of OLR Revision No.7 of 1984. 9. As against the aforesaid background facts, when the original appellant claims himself as a Bhago tenant and a tenant under the State after vesting is pending decision before the OLR Authority and at the same time, rival claims of the parties on the question of title awaits decision in Consolidation Revision No.965 of 1982, it has to be held that neither tenancy has been declared nor the decision on title is final. If the title over the schedule land is a SA No.78 of 2000 Page 9 of 11 Siba Charan Bhoi (Dead) By LRs Vrs. Bhikari Bhoi and Others matter of adjudication pending with the Consolidation Authority, it was beyond the jurisdiction of the Civil Court to entertain it. As earlier stated, though the Consolidation Authority does not have the jurisdiction to declare the sale deed as void but it can certainly take cognizance of the same ancillarily while deciding the question of title. No doubt, a decree of injunction is beyond the jurisdiction of the Consolidation Authority. So pending decision on tenancy in proceeding under Section 36-A of the OLR Act and question with respect to title of the suit land before the Consolidation Authority, whether, the appellants may seek for injunction against the respondents. In fact, the Trial Court held possession of the suit land by the original appellant and at the same time, declared the sale deed as void and not binding to him. Since the question of title is pending before the Consolidation Authority, the Court is of the view that pending such determination, the party in possession of the suit land is eligible for injunction. The learned Lower Appellate Court overruled the right of the appellant to possess the suit land on the ground that the respondents are the owners in respect thereof on account of the alleged sale deed. As discussed earlier, the fate of the sale deed depends on the decision of the Consolidation Authority on title. In such view of the matter, the appellants, who are held to be in possession ever since 1962, a decision on facts was not overruled in appeal, it has to be held that he has the right to restrain the respondents over possession till the decision arrives on title. In so far as the benefit of Section 43 of the Transfer of Property Act is concerned, whether, the vendor of the respondents’ predecessor-in-interest managed to perpetuate the sale by any fraudulent means or with erroneous representation vis-à-vis title of the suit land would be a matter of adjudication before the Consolidation Authority since title is under question. SA No.78 of 2000 Page 10 of 11 Siba Charan Bhoi (Dead) By LRs Vrs. Bhikari Bhoi and Others Thus, this Court reaches at a logical conclusion that the appellants having been found in possession of the suit land are entitled for a decree of injunction simplicitor leaving all other issues including title over the suit land open for decision by the concerned authorities. The substantial questions of law are accordingly answered. 10. Hence, it is ordered. 11. In the result, the appeal stands partly allowed and to the extent as aforesaid. (R.K. Pattanaik) Judge TUDU Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication Location: OHC,CTC Date: 01-Aug-2023 21:13:54 SA No.78 of 2000 Page 11 of 11