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IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 226 of 2018 [In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908. --------------- Omkarnand Purohit ...… Appellant -Versus- State of Odisha ….. Respondent Advocate(s) appeared in this case :- ________________________________________________________ For Appellant : Mr. K.A.Guru, Advocate For Respondent: Mr. A.R.Dash, Advocate _______________________________________________________ CORAM JUSTICE SASHIKANTA MISHRA JUDGMENT 29th July, 2025 SASHIKANTA MISHRA, J. The plaintiff is the appellant against a reversing judgment. The suit filed by the plaintiff for declaration of his right, title, interest and confirmation of possession in respect of the schedule land was decreed by the trial Court but reversed and dismissed by the first appellate Court. 2. The plaintiff’s case, briefly stated, is that one Ramprasad Guru being the Lambardar Gountia of village Pandloi in the district of Sambalpur executed Page 1 of 17 a registered permanent lease deed bearing No. 372 dated 22.11.1924 in favour of Haragovind Purohit, a minor represented by his father guardian Achyutanand Purohit and delivered possession of the land. Said land pertains to Dewan Settlement Plot Nos. 1, 2, 3, 8,340, 342 and 353 which correspond to Hamid Settlement Plot Nos. 1, 514 and 527, the total extent of land being Ac. 47.14 decimals. The minor lessee paid land revenue to the Lambardar Gountia. Some of the co-sharers of Lambardar Gountia
Legal Reasoning
challenged the lease deed before the Deputy Commissioner, Sambalpur in Revenue Case No- 5/9- 12 of 1925-26 but the same was dismissed on 13.07.1925. Achyutanand Purohit on behalf of his minor son filed Revenue Case No.11/2-114 of 1926- 27 before the Tahasildar, Sambalpur for demarcation of the lease hold land which was allowed by order dated 21.06.1927. Haragovind Purohit possessed the land after attaining majority. His father died on 31.08.1982 while he himself died on 11.09.2001. During his lifetime, Haragovind Purohit executed a Page 2 of 17 Will on 10.09.1986 in respect of the entire lease-hold property in favour of the plaintiff, who is his nephew. The Will, which was unregistered was in the custody of its scribe namely, Fakir Sahoo who handed over the same to the plaintiff in the year 2004. As such, the plaintiff succeeded to the property on his own right, title and interest. The plaintiff further claims that the suit schedule A land measuring Ac. 11.25 decimals corresponding to Hamid Settlement Plot No. 1 of M.S. Khata No. 119 corresponds to the lease- hold land granted by the Lambardar Gountia but was wrongly recorded in the name of the State Government in Rakhit Khata as Gochar Kisam behind his back. He therefore, filed OSS Case No. 186/2004 before the Member, Board of Revenue for correction of ROR but said case was dismissed on 17.02.2007. It is further averred that the State Government was never in possession of the suit land. But taking advantage of the wrong recording in the ROR, the defendants started De-reservation Proceeding no.15 of 2004 to lease out the land to Page 3 of 17 IDCO for establishment of factories by dispossessing the plaintiff. Hence, the suit. 3. The defendant-State, represented through the Collector, contested the suit by filing written statement disputing the plaint averments. It was pleaded that the plaintiff is not in possession over the suit land. The settlement operation, though completed in the year 1988, neither the name of the plaintiff nor of his testator was recorded. The record of the demarcation case of the year 1926-27 is not available in the office and the Member, Board of Revenue rightly dismissed the case for correction of ROR with regard to lease OSS No. 186/2004. It was stated that the same was dropped as there is no sufficient surplus land available in the village. It is also stated that the sanction of lease in favour of Haragovind Purohit is a fictitious story and no steps were taken by the plaintiff or his predecessor to record their names in respect of the suit land in two successive settlements. The plaintiff is trying to grab the Government land. There is even no note of Page 4 of 17 possession in favour of the plaintiff or his predecessor in the ROR published during the Hamid Settlement or the Major settlement. 4. Basing on the rival pleadings, the trial Court framed several issues for determination out of which, issue Nos. 4 and 5 being pivotal issues are reproduced below: “4. Whether the plaintiff has acquired any right, title and interest over A schedule land by virtue of a registered lease deed executed by Ex- in favour of Hargovind Lambardar Gountia Pujhari who in turn transferred the same in favour of the plaintiff by will. 5. Whether the defendant has any manner of right, title and interest by virtue of recording of land in H.S. and M.S.” Taking issue Nos. 4 and 5 together for consideration the trial Court, basing on the settled position of law regarding statutory presumption of correctness attached to Wazib-ul-Arz held that the ex-Lambardar Gountia was entitled to deal with the suit land and accordingly leased out the same and other lands to the extent of Ac. 47.14 decimals by virtue of permanent lease deed dated 22.11.1924. At that time the suit land had not been recorded Gochar land. Further, admitting the tenancy, the Govt. had Page 5 of 17 demarcated the land as per order passed in demarcation case and the Deputy Commissioner had also dismissed the objection raised by the co-sharers of the Lambardar Gountia. The trial Court thus held that Haragovind Purohit had acquired valid right and title over the suit land since 1924 and subsequent recording in the name of the Government has no bearing on the right of Haragovind Purohit. The trial Court brushed aside the recording of the land in the name of the State in the subsequent settlement on the ground that settlement entries neither create nor extinguish title. The trial Court, basing on the oral evidence adduced, found that the plaintiff had also proved his possession over the suit land. There was flow of title from Haragovind to the plaintiff through the unregistered Will. On such findings being rendered on the main issues, the remaining issues were answered accordingly in favour of the plaintiff and the suit was decreed by declaring the plaintiff’s right, title, interest and his possession was confirmed. Page 6 of 17 5. Being aggrieved, the State carried appeal to the District Court. The first appellate Court first considered whether title over the suit schedule land had passed to Haragovind by virtue of the registered lease deed dated 21.10.1924. Basing on the evidence adduced, it was held that Ramprasad Guru being the Lambardar Gountia had executed the registered lease deed in favour of Haragovind Purohit, who was a minor represented though his father guardian Achyutananda Purohit. The first appellate Court then referred to the definition of lease as per Section 105 of Transfer of Property. Act and in view of the fact that there was no evidence regarding payment of consideration money for the lease or of payment of annual rent, the registered document cannot be treated as lease within the meaning of Section 105. The first appellate Court, referring to the provision under Section 138 of Central Provinces Land Revenue Act held that Ramprasad Guru being the Lambardar Gountia had exceeded his power and authority. Coming to the Wazib-ul-Arz, the first Page 7 of 17 appellate Court found that the land leased out was Gochar land. The oral evidence including that of the plaintiff (P.W.4) was also considered. The first appellate Court did not place much reliance on the dismissal of the case brought by the co-sharers before the Deputy Commissioner as also the order passed in the demarcation case for want of evidence regarding actual demarcation having taken place. The unregistered Will was also not acceptable as valid document in view of the discrepancy in the evidence regarding its possession prior to the plaintiff’s possession. There was also no evidence to justify as to why the testator bequeathed the property to the plaintiff, who is his nephew. On such findings, the appeal was allowed by setting aside the judgment and decree passed by the trial Court. 6. Being aggrieved, the plaintiff has preferred the instant appeal which was admitted on the following substantial questions of law: “i) Whether the claim of the appellant is covered within the meaning of Section 138 of the Central Provinces Land Revenue Act, 1881 or under the provisions of Section 44 read with Section 2(6) of the Central Provinces Tenancy Act, 1898? Page 8 of 17 in lease favour of ii) Whether in the facts and circumstances of the case, the Lambardar Gountia had any right to grant the plaintiff’s permanent predecessor in view of the fact that the land in question was of Gochar Kisam? iii) Whether the finding of the First Appellate Court that the lease deed does not satisfy the requirement of section 105 of the Transfer of Property. Act is correct?”
Legal Reasoning
7. Heard Mr. K.A.Guru learned counsel for the plaintiff-appellant and Mr. A.R.Dash, learned AGA for the State. 8. Mr. Guru, assails the impugned judgment of the first appellate Court by submitting that the Wazib-ul- Arz has been held to carry the presumption of correctness and in the instant case, the certified copy of it clearly proves that Ramprasad Guru was the Lambardar Gountia of village Pandloi. The Wazib-ul-Arz clearly mentions that the Lambardar Gountia had right to settle raiyats in respect of waste lands, village forest lands and Gochar lands except few lands reserved for the Government. It also mentions that no ‘Nazrana’ in cash or kind is payable by the lessee for the lease. Therefore, according to Mr. Guru, the finding that no consideration was paid for the lessee is factually erroneous. It is also argued Page 9 of 17 that the reference to the provisions of Central Provinces Land Revenue Act by the first appellate Court is misconceived as the said Act is concerned with collection of land revenue. It is the settled position of law that the Lambardar Gountia in villages of Sambalpur district had right to settle raiyats in the village. In this context, Mr. Guru has cited a judgment of a Full Bench of this Court in the case of Gajraj Sahu vrs. State of Orissa, AIR 1971 Odisha I (F.B) and Bhabani Prasad Mishra and Ors vrs. State of Orissa in Second Appeal no.-46 of 1968. Mr. Guru further argues that the finding regarding the Will is also not tenable because two sons of Haragovind Purohit were high ranking defence personnel with each being entitled to ten standard of acres of land and therefore, there was no question of Haragovind Purohit owning excess land. As regards the finding regarding order of the Deputy Commissioner, Mr. Guru argues that the Deputy Commissioner being a high ranked revenue authority had passed an order which was never challenged in Page 10 of 17 the higher forum nor the order passed by the demarcation case. As such, the settlement authorities cannot supersede the order of the Deputy Commissioner, and the settlement entries do not create or extinguish title. 9. Per contra, Mr. A.R.Dash, learned State counsel would argue that the documentary evidence on record clearly reveals the Kisam of the land as Gochar. Such fact was also admitted by the plaintiff himself in cross-examination. Once it is established that the land is of Gochar Kisam, the Lambardar Gountia had no authority to grant permanent lease as per Clause 4 of the Wazib-ul-Arz. Mr. Dash cites a judgment of this Court in the case of Ganesh Shankar Shukla (since dead) through LR’s vrs. State of Odisha and another, 2017 SCC Online Ori 714. Mr. Dash further attempts to distinguish the judgment of the Full Bench, cited by Mr. Guru, by pointing out that the land in that case is Patita which is different from Gochar. That apart, the ingredients of lease as per Section 105 of TP Act Page 11 of 17 could not be established by the plaintiff as rightly held by the first appellate Court. Mr. Dash concludes his argument by submitting that the title of the so- called testator being doubtful, the Will supposedly executed by him cannot confer any title on plaintiff. 10. In view of the rival contentions as noted above, it is evident that the first question that falls for consideration is, whether the Lambardar Gountia had the authority to lease out the land. The answer to this lies in the document called Wazib-ul-Arz. In the case of Avadh Kishore Dass vrs. Ram Gopal & Ors, AIR 1979 SCC 861 it was held that- “Wazib-ul-Arz is village administration paper prepared with due care and after due inquiry by a public servant in the discharge of his official duties. It is a part of the settlement record and statutory presumption of correctness attaches to it”. In the instant case, the Wazib-ul-Arz in respect of the suit village was admitted evidence by the plaintiff being marked as Ext.11. It shows that Ramprasad Guru was the Lambardar Gountia of village Pandloi. The legal position that Lambardar Gountia had no right to transfer any interest over Gochar Kisam of land is not seriously disputed by the plaintiff. It is Page 12 of 17 contended that the land leased out was not of Gochar Kisam. In this regard the first appellate Court has referred to the lease deed (Ext.1) and also the Hamid Settlement ROR (Ext.12) to find that the plot leased out was Gochar Kisam land. Most significantly, the plaintiff being examined as P.W.4 admitted that the land leased out is mentioned as Gochar land. The objection filed before the Deputy Commissioner, Sambalpur in revenue Case No. 5/9- 12 of 1925-26 by one Balaram Sahoo against the lease deed executed by Ramprasad Sahoo was specifically on the ground that the land in question was Gochar land being kept reserved for grazing of village cattle. Though the Deputy Commissioner dismissed the case, yet it as with the finding that no portion of the lease land had been recorded as Gramya Jungle but without recording any finding as to if the same was of Gochar Kisam or not. The first appellate Court therefore rightly brushed aside the order of dismissal of the Deputy Commissioner. Further, the first appellate Court, basing on the oral Page 13 of 17 and documentary evidence has that the Kisam of the land is Gochar. Nothing has been placed before this Court to demonstrate as to how such finding of fact is wrong, erroneous or perverse. In the case of Ganesh Shankar Shukla (supra) this Court held as follows: “10. Wajib-ul-arz recognizes a right of a cultivator in certain circumstances to the house site which may include right of transfer in the central province. So far as non-agriculturists are concerned, alienable right of property may also be conferred upon a cultivator of labour class by an agreement made with the lambardar and the punches. Admittedly the kissam of the land is Gochar. There is no evidence on record that the father of the plaintiff was an agriculturist. Clause-1 of Wajib-ul-arz, Ext.8, provides that all Patita lands which are not used for the purpose of agriculture shall be the property of the Government. The land mentioned in Wajib-ul-arz is recorded as gochar and forest. No person shall possess the same in the absence of a written the Deputy Commissioner. permission Clause-2 provides that the villagers shall graze their cattle over Rakhit land and can collect fire wood and wood for their use and construction of house. Clause-3 provides Lambodar and co- sharers can cultivate the Patita land or lease out the same to the raiyat or induct the tenant. No fee can be collected for possession of the land. On a bare reading of Clause-4 of Wajib-ul-arz, it is evident that Lambodar had no authority to lease out the Gochar land. Reliance placed on the lease deed vide Ext.2 is totally misplaced. Since Lambodar had no authority to lease out the Gochar land, any deed executed by him can not confer any title. After promulgation of the lands and O.E.A Act, 1951, all communal porambokes vested in the State under Sec. 5(a) of the O.E.A Act free from all encumbrances.” from Page 14 of 17 Thus, even though the Lambardar Gountia had executed the registered lease deed in favour of the predecessor-in-interest of the plaintiff, the same would not convey any title. Consequently, the flow of the title claimed by the plaintiff automatically falls to the ground for the same reason that the Will supposedly executed by the plaintiff predecessor in his favour would also have no sanction of law for being accepted as a valid conveyance of title. 11. It has been argued that the State acting through the Tahasildar had recognised the tenancy created by the lease for which the demarcation case was allowed but the first appellate Court found no evidence whatsoever of any demarcation having actually been made. In fact, the only order passed in the demarcation case reads as follows: ‘Received report. Demarcation made. Filed.’ The first appellate Court thought it prudent not to place any reliance on the order passed in demarcation case, which this Court fully concurs with. Thus, this Court holds that the Lambardar Page 15 of 17 Gountia had no right to grant permanent lease in favour of the plaintiff’s predecessor. The substantial question of law No.1 is answered accordingly. 12. As to the finding of the First Appellate Court that the registered lease deed does not satisfy the requirements of a valid lease as per Section 105 of Transfer of Property. Act, it has been argued that the lease deed itself mentions that no ‘Nazrana’ would be paid either in cash or in kind for the lease and therefore, the question of there being any evidence of any revenue being paid by the lessee to the lessor does not arise. This Court is unable to accept the argument as above for the reason that not only that there is no evidence of any consideration being paid for the lease but also the claim that annual rent at the rate of Rs. 4 per acre was fixed also could not be considered only by showing payment of such rent at any point of time. So, as rightly held by the first appellate Court, the document purporting to be a lease deed may have been registered but the same, ipso facto, does not satisfy the criteria of a valid lease Page 16 of 17 as per Section 105 of Transfer of Property. Act. The substantial question of law No.2 is answered accordingly. 13. From the foregoing narration, it is evident that the grounds urged by the plaintiff to question the correctness of the impugned order are not cogent enough to persuade this Court to take a contrary view than what was taken by the first appellate Court. To sum up, the plaintiff must be held to have failed to prove the flow of valid title from the Lambardar Gountia to him through his predecessor- in-interest Haragovind Purohit. Such being the finding, it is not necessary to go into the question of genuineness and validity of the Will. 14. In the result, the appeal fails and is therefore, dismissed. There shall be no order as to cost. …………….……………. Judge Deepak Sashikanta Mishra, Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 30-Jul-2025 13:52:34 Page 17 of 17