Procedure assailing the judgment and decree passed by the learned v. State of Orissa & Anr.

Judgment

27.01.2023 --------------------------------------------------------------------------------------- D.Dash,J. The Appellants in this Appeal under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) have assailed the judgment and decree passed by the learned District Judge, Nuapada in R.F.A. No.4 of 2019. By the same, the Appeal filed by the present Respondents {{ 2 }} (Defendants) under section 96 of the Code in challenging the judgment and decree passed by the learned Senior Civil Judge, Nuapada in C.S. No.136 of 2015 has been allowed.

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. Plaintiff’s case is that one Hirabati Panda had purchased the land measuring Ac.3.71 dec. from Khaneyalal and Sohanlal, who were the recorded tenants vide Khunti No.4, Plot No.201 appertaining to Jamabadi register of the year 1945-46. He had purchased the said land on 18.05.1948. The sale deed was prepared on a stamp paper by one Bhubaneswar Panda. The transaction was for a consideration of Rs.840/- It is stated that the vendors, namely, Khaneyalal and Sohanlal after execution of the said registered sale deed and receipt of consideration as agreed, had delivered the possession of the said land to Hirabati, who had purchased the property. The delivery of possession is said to have been made on the very day of execution of the sale deed, i.e.,

18.05.1948. The said land as per the description of the record of 1922-23 settlement is shown in schedule ‘A’ of the plaint. It is stated that Hirabati having stepped into the possession of the property of the said land made it fit for cultivation and started growing {{ 3 }} paddy and other crops over the same. The Major Survey and Settlement Operation in the area started in the year 1958. Since Hirabati was found to be in possession at the time of Major Settlement of the year 1958, her possession was noted and said lands as per the record of 1922-23 settlement got divided into two parts as described in schedule ‘B-1’ and ‘B-2’ of the plaint respectively. It was in the year 1965, the land stood recorded in the name of Khaneyalal and Sohanlal under Khata No.13 with note of possession in favour of Hirabati in respect of schedule ‘B-1’ property in the remark column of the said record of right. However, out of the purchased land of Ac.3.71 dec., only Ac.2.61 dec. was recorded in favour of Khaneyalal and Sohanlal as per the schedule ‘B-1’ with note of possession in favour of Hirabati whereas the rest land in Plot No.201 as described in schedule ‘A’ was taken to Government Khatian with corresponding plot number as mentioned in schedule ‘B-2’. It is, however, stated that the vendee Hirabati was in actual physical possession of the suit land described in schedule ‘B-2’ of the plaint at the time of commencement of the major settlement operation, which she had purchased under one plot along with schedule ‘B-1’ land. It is further stated that on the basis of her possession, note of possession was so noted in the remark column of suit schedule ‘B-2’ land indicating of

course, the possession to be forcible had been made. The Plaintiffs are {{ 4 }} the grand sons of Hirabati and they are sons of late Ghasiram Panda. It is stated that on the strength of said sale deed, Hirabati, her husband Bhubaneswar Panda, their only son Ghasiram and the Plaintiffs have been possessing the suit land in succession in treating the same to be their joint family property. However, the Settlement Authorities endorsed the note of possession of Hirabati in schedule ‘B-1’ and ‘B-2’ land without creating separate record of right as the sale deed on the basis of which the land described in suit schedule ‘A’ was purchased was an unregistered one. Hirabati and her family members thus remained in continuous cultivating possession of the suit land jointly. On

02.12.1986, Hirabati died. Upon her death, her son Ghasiram came to possess the suit land physically till his death on 17.03.1988 and thereafter the Plaintiffs with other legal heirs are in physical possession of the suit land up till the Dusaherra of 1996 when a mutual partition amongst them took place and the suit schedule ‘B-2’ land fell to the share of the Plaintiffs along with other properties of the joint family. Before the Plaintiffs got the said land in their share and houses have been constructed over Plot No.488, 490 and 485 in the year 1993 which fell to the share of the Plaintiffs, who are in physical possession of the same and as such in enjoyment. It is stated that they have let out the said houses on rent to different persons. Although in course of new {{ 5 }} settlement, Plaintiffs applied for recording of schedule ‘B-1’ and ‘B-2’ land under separate record of right under their names, the Settlement Authority simply recorded schedule ‘B-1’ land which corresponds to schedule ‘C-1’ but did not record the land in schedule ‘B-2’ which corresponds to schedule ‘C-2’ which was taken to Government Khata. It is stated that such recording in the record of right cannot extinguish the right, title and interest of the Plaintiffs over the suit land. Pursuant to the aforesaid recording the Hal Settlement, when there being contemplation of initiation of proceeding under the Orissa Prevention of Land Encroachment Act, 1972 for eviction of the Plaintiffs from the suit land in schedule ‘B-2’, they filed the suit.

4. The Defendants (State and its Officials) in traversing the plaint averments submitted that they do not have any knowledge about the purchase of the suit land by Hirabati from Khaneyalal and Sohanlal. It is stated that Register-IV for the year 1983-84 in the Revenue Inspector Office shows that an encroachment case was booked against Hirabati basing upon the report from the local Revenue Inspector. It is further stated that the move of the Plaintiffs is only to grab the valuable public property. The suit land was never in possession of anyone and it has been rightly recorded under Government Khata. {{ 6 }}

5. With the above pleadings, the Trial Court framed as many as seven issues. The Trial Court in the backdrop of the rival pleadings, upon examination of evidence and their evaluation has answered the crucial issues, i.e., Issue Nos.5 and 6 which concern with the claim of the Plaintiffs over the suit land in schedule ‘C’ corresponding to schedule ‘B’ basing upon that unregistered sale deed said to have been executed by Khaneyalal and Sohanlal on 18.05.1948 in favour of Hirabati and the alternative case projected by the Plaintiffs to have perfected title by way of adverse possession having remained in open, peaceful and continuous possession of the said land all through as its owner in denying the title of the true owner exhibiting hostile animus to the knowledge of the true owner-State, the answers have been returned in favour of the Plaintiffs. Having answered those issues as aforesaid, the Trial Court decreed the suit.

6. The State being aggrieved by the judgment and decree passed by the Trial Court in declaring the right, title and interest of the Plaintiffs over schedule ‘C-2’ land corresponding to schedule ‘B-2’ as per the Major Settlement record of the year 1956 and schedule ‘A’ land as per the record of 1922-23 settlement having carried the First Appeal have been successful in getting the Plaintiff non-suited. Hence the Second Appeal is at the instance of the unsuccessful Plaintiffs. {{ 7 }}

7. The Appeal has been admitted to answer the following substantial questions of law:- a) “Whether the learned lower Appellate Court has committed an error of law in holding that the sale deed under Ext.2 having not been registered, no title in respect of the properties can be passed to the Plaintiff, although the effect of non- registration of the document under Ext.2 is statutorily protected under section-12(4) of proviso of the Central Province Tenancy (Odisha Amendment) Act, XV of 1953? b) Whether the judgment and decree passed by the learned lower Appellate Court vitiated under law for non-consideration of the well settled legal position that ‘Maurai Tenancy’ right being permanent in character, the same cannot be taken away except the procedure known to law. In the present case, the deceased grandmother (Hirabati Devi) of the Plaintiff- Petitioner having acquired the status of an occupancy tenant being the transferee of “Maurasi Tenancy” right from her Vendor, such right is well protected under the C.P. Tenancy Act, and cannot be taken away mere recording of such property in the settlement ORO by changing the status of the land as Anabadi in the name of Government? c) Whether the learned lower Appellate Court has committed an error of law and procedure in holding in the impugned judgment that since the Plaintiff did not challenge the ROR published in the year 1982, the claim of the Plaintiffs is not sustainable, although the suit filed by the Plaintiff was for {{ 8 }} declaration of title in respect of the suit property and not for correction of the ROR? d) Whether the learned lower Appellate Court has further committed an error of law and procedure in disbelieving / derecognizing the title of the Plaintiff over the suit land which is a part of Khata No.201 consisting of an area of Ac.3.71 decimals under Ext.2 although the Government by admitting the sale deed under Ext.2 has recognized the title of the Plaintiffs- Appellant in respect of an area of Ac.2.61 decimals of land out of the same C.S. Khata No.201 in accordance with the relevant provision under the C.P. Tenancy Amendment Act, whereas there was no justification is disbelieving the title of the Plaintiff over the rest area of Ac.0.86 decimals which is a part of the aforesaid Khata?”.

8. Learned counsel for the Appellants submitted that conclusion of the First Appellate Court that the sale deed dated 18.05.1948 being an unregistered one is invalid is based on erroneous view point of law. He submitted that ‘Maurasi Tenancy’ right being permanent in character, the same is not liable to be taken away except the procedure known to law. In this connection, he has invited the attention of this Court to the Final Report on the Land Revenue Settlement of the Sambalpur District, 1926 (which was then including the area/district in which the suit land situates) by Mr. KBH Hamid which in its Article 50 says that all the tenants holding land of a landlord are occupancy tenants (called here Maurasi tenants) and occupancy rights accrues the moment land is {{ 9 }} settled with a tenant. According to him, the said sale deed (Ext.2) even though was unregistered; the same having not been questioned or challenged within a period of 12 years as provided in proviso to section 12(4) of the Central Provinces Tenancy (Orissa Amendment) Act, XV of 1953 by the Deputy Commissioner either on his own motion or an application by the transferor or his successor-in-interest; the First Appellate Court ought to have held that Hirabati and thereafter her successors having remained in possession of the suit land pursuant to that unregistered sale deed (Ext.2) going unchallenged all through and in fact being accepted in part in respect of schedule B-1=C-1 property, the Plaintiffs have the right, title and interest over the same which the Trial Court had rightly held. He further submitted that in the year 1959 relying upon the sale deed (Ext.2), an area of Ac.2.61 dec. having being recorded in favour of Hirabati “as occupation by way of purchase” and the State having admitted the title of the Plaintiffs over that land, the said sale deed (Ext.2) thus having been accepted in part ought not to have been pushed out of consideration for the rest part which is the schedule ‘C-2’ land. It was further submitted that the view taken by the First Appellate Court that the property in dispute having been recorded in the name of State with kissam Rakhit and Anabadi, which has not been challenged by the Plaintiffs four about half a decade that nullifies {{ 10 }} the claim of the Plaintiff over the said land is wholly erroneous, more so when the possession of the land in question has always remained with Hirabati and her successors. He submitted that the First Appellate Court has not bestowed its consideration upon the well settled legal position that Maurasi Tenancy Right being permanent in character, the same cannot be taken away except the procedure known to law and mere recording of a part of land from out of the said total land in ROR in the name of the State is not enough to cause deprivation. According to him, in the present case, the grandmother of the Plaintiff having acquired the status of an occupancy tenant being the transferee of Maurasi Tenancy Right from her vendor, such right is well protected under the provision of Central Province Tenancy (Orissa Amendment) Act and that cannot be taken away merely for the recording of the said property in the settlement record of right by changing its status as ‘Anabadi’ in the name of the Defendants. He submitted that the First Appellate Court has committed grave error in holding that since the Plaintiff has not challenged the record of right of the year 1982; his claim is unsustainable which, according to him, is contrary to the settled position of law that ROR does not create or extinguish the title. He submitted that the First Appellate Court has erred in derecognizing the title of the Plaintiff over the suit land which is a part of Khata No.201 consisting of {{ 11 }} an area of Ac.3.71 dec. as shown in Ext.2 although the Defendant-State has admitted and recognized the said sale deed (Ext.2) ultimately as the document conferring title upon the Plaintiff in respect of an area of Ac.2.61 dec. out of same C.S. Khata No.201 in accordance with the relevant of provision contained in the Central Province Tenancy (Orissa Amendments) Act and in that view of the matter, there was no justification to reject the claim of title of the Plaintiffs over the rest area of Ac.0.86 dec. which is a part of that khata.

9. Learned counsel for the State submitted all in favour of the findings returned by the First Appellate Court. According to him, the Plaintiffs having not challenged the record of right of the year 1982, the present claim of title of the Plaintiff over that land has rightly been whittled down. He submitted that the so-called sale deed of the year 1948 being an unregistered one is void that the view taken by the First Appellate Court that the unregistered sale deed (Ext.2) having not been brought to light at any point of time for more such a long length of time, it has not been acted upon. According to him, the First Appellate Court on going through the evidence and upon their proper analysis has rightly held that the Plaintiffs have not established their claim over the suit land as to have been acquired title by virtue of adverse possession having {{ 12 }} remained in possession from 18.05.1948 by fulfilling all the required ingredients.

10. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below.

11. The Trial Court having returned the answers on the two crucial issues as already stated in favour of the Plaintiffs, the First Appellate Court has overturned the same. As all the substantial questions of law are intertwined; this court feels it apposite to undertake the exercise of finding out the common answer to those which concern with the sustainability of the claim of the Plaintiffs over the suit land in the eye of law. Section 46 of the Central Provinces Tenancy Act, 1898 as it stood after ‘The Central Provinces Tenancy (Orissa Amendment of C.P. Act, XI of 1898) Act, 1953 read as under:- “(2) An occupancy tenant shall not transfer his holding or any portion thereof except to the extent and in the manner hereinafter provided, namely:- (a) He may sublet his right in his holding or any portion thereof for one agricultural year; provided that no contract for such lease shall be made more than four months before the year to which it relates, or shall contain a clause for renewal {{ 13 }} (b) An occupancy tenant shall have the right to transfer his holding or any portion thereof either by wale or mortgage or gift or bequest or otherwise to a bona fide agriculturist: Provided that if he is a member of a Scheduled Tribe, he shall not so transfer to any person who is not a member of the same or different Scheduled Tribe except with the previous permission in writing of the Deputy Commissioner. Explanation-An agriculturist is a person who holds land for the purpose of cultivating it by himself or by members of his family or by hired servants and includes an agricultural labourer. (c) All such transfers except in case of a bequest or a lease as contemplated under clause (a) shall be by a registered document.” For sub-section (3), the following sub-section shall be substituted, namely:- “(3) The holding of any occupancy tenant shall be saleable by Court in execution of a rent decree or any other decree:- Provided that if the holding belongs to a member of a Scheduled Tribe the sale other than a sale held for recovery of the dues of a Society registered under any Co-operative Societies Act or for recovery of an advance made to him under the Land Improvement Loans Act, 1883, or the Agriculturists Loans Act, 1884, shall not be held unless the decree-holder obtains the previous permission in writing of the Deputy Commissioner.” {{ 14 }} After sub-section (3) as so substituted in clause (iii) above, the following sub-section shall be added, namely:- “(4) If any transfer is made in contravention of the provisions of this section, the Deputy Commissioner may, either on his own motion or on application by the transferor or his successor-in- interest, declare the transfer void and evict the transferee from the holding or a part of the holding, as the case may be: Provided that no such transfer shall be declared void or such transferee liable to eviction after the expiry of twelve years from the date of his coming into possession of the holding or a part of the holding in pursuance of such transfer.”

12. The sale in violation of clause (c) to sub-section (2) of Section 46 of the C.P. Tenancy Act as it stood after Orissa Amendment Act, 1953 says that all such transfers except in case of bequeath or a lease as contemplated under clause (a) shall be by a registered instrument. Thus, here the transfer of the Maurasi Tenancy Right by Khaneyalal and Sohanlal as is said to have been made in favour of Hirabati was required to be under a registered document. But when sub-section (4) of section 46 of the CP Tenancy Act as it stands with Orissa Amendment Act, 1953 reads that said transfer in contravention of the provision of the section may be declared void by the Deputy Commissioner either on his own motion or an application by the transferor or his successors-in- {{ 15 }} interest and in that event the transferee is liable to be evicted, the proviso to said sub-section reads that if no such declaration is made within a period of 12 years from the date when the person came into possession of the holding or a part thereof in pursuance of such transfer, which means the transfer in contravention of clause (c) to sub-section (4) of section 46 shall not be declared void and the transferee shall not be liable for eviction on expiry of that period if no action in that regard is taken. Therefore, in the instant case, the said transfer of the year 1948 being never declared void within a period of 12 years from the date when the provision of Orissa Amendment Act of 1953 came into force on 9th July, 1953, in my considered view, it is no more permissible to term the transaction as void or invalid in the eye of law. The provision of law as aforesaid nowhere says that such sale in contravention of the provisions contained in the section shall be void. The consequence of a transfer in violation of the provision of the section is that the said sale may be declared as void with the standing rider that if within a period of 12 years, it is not so done, it is no more amenable to be so declared on that ground. In other words, it says that the sale shall continue to be valid until it is declared void and if within 12 years from the date of the transferee coming to possession of the holding or any part thereof, it is {{ 16 }} not so declared void then the sale would stand valid for all purposes whatsoever. In the given case, the transaction being of the year 1948, when thereafter on 9th July 1953, the Central Provinces Tenancy (Orissa Amendment Act of C.P. Act XI of 1898) Act, 1953 came into force, the period of 12 years giving all concession can be taken from the date of coming into force of the Amendment Act and that admittedly has elapsed since long and it is not shown that any action in that regard had been taken and consequential order had been passed. Thus, the transaction in question is no more impeachable.

13. From Ext.1 which is public document, it is seen that the Jamindar Artatrana Deo had conferred Maurasi Right in favour of the vendors of Hirabati, who is the grandmother of the Plaintiffs and it was one plot comprising of an area of Ac.3.71 dec. Basing upon that very Ext.2, an area of Ac.2.61 dec. had been recorded in the names of the vendors of Hirabati, which is not disputed. The oral and documentary evidence on record reveal that the land forming the subject matter of the suit was in possession of vendors of Hirabati and then with Hirabati whereafter her son and the Plaintiffs are in possession of the same. The Maurasi Tenancy Right being permanent in nature by preparation of the record of right in the settlement operation, the said right cannot be said to have been taken away by simply changing the status of the land as Anabadi {{ 17 }} and recording it in the name of the State more so, on the face of that Ext.2, which has since long received the full statutory recognition.

14. For the aforesaid discussion and reasons, this Court answers the substantial questions of law in support of the case/claim of the Plaintiffs and thus entitling them with the decree as prayed for. Therefore, the judgment and decree passed by the First Appellate Court in dismissing the suit filed by the Plaintiffs being annulled; the judgment and decree passed by the Trial Court are hereby restored.

15. In the result, the Appeal is allowed. In the facts and circumstances of the case, no order as to cost is passed. (D. Dash), Judge. Himansu