Civil Suit No. 83 of 2007 · High Court
Case Details
HIGH COURT OF ORISSA : CUTTACK RSA NO.343 OF 2022 In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned Additional District Judge, Nimapara in RFA No.19/28/72 of 2018-11-10 in confirming the judgment and decree passed by the learned Civil Judge (Junior Division), Nimapara in Civil Suit No.83 of 2007. ……… Kailash Chandra Jena :::: Appellant -:: VERSUS ::- Prahallad Jena :::: Respondent. Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- For Appellant … M/s.S Pattanayak, S. Mishra & S.K. Mishra (Advocates). For Respondent … M/s. B. Mohanty & K.K. Mohapatra (Advocates). ------
Legal Reasoning
CORAM : MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Hearing: 28.11.2023 :: Date of Judgment: 04.12.2023 --------------------------------------------------------------------------------------- D.Dash,J. The Appellant, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) has assailed the judgment and decree passed by the learned Additional District Judge, Nimapara in RFA No. 19/28/72 of 2018-11-10. {{ 2 }} The Appellant as the Plaintiff being aggrieved by the judgment dated 23.07.2010 followed by the decree passed by the learned Civil Judge (Junior Division), Nimapara in Civil Suit No.83 of 2007 whereunder his suit had been dismissed had filed the Appeal under section 96 of the Code which has been dismissed. Hence the present Second Appeal is at the instance of the unsuccessful Plaintiff. 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 the suit property originally belonged to the ex-intermediary which was leased out in the year 1944 in favour of one Rama Chandra Jena who happens to be the father of the Plaintiff and Defendant. While Rama Chandra Jena was in peaceful possession of the suit property, vesting of the same took place with the State. So, it is said that Rama Chandra Jena became the deemed tenant under the State by virtue of the provisions contained in Orissa Estate Abolition Act. Rama Chandra Jena died in the year 1984 leaving behind three sons, the Plaintiff, Defendant and one Balakrushna. Balakrushna died in the year 2001 leaving no issue. So, the Plaintiff and the Defendant became the owners and occupied the suit land. Both of them made permanent constructions of five pucca rooms over the suit land for their use as shop Page 2 of 9 {{ 3 }} rooms. Three rooms were given to the outsiders on rent and rest two were being used by the Plaintiff and the Defendant; one each. The Defendant with the assistance of his son on 18.06.2007 tried to dispossess the Plaintiff from that shop room in occupation of the Plaintiff on the ground that it has been exclusively recorded in his name. The Plaintiff states that prior to that there was a mutual partition between them on 16.01.2007. In the said mutual partition, small area that is the suit land measuring Ac.0.01 dec. was not put to division and, therefore, it remained as joint. The Plaintiff apprehending the dispossession thus filed the suit for declaration of right, title, interest and possession of the Plaintiff and Defendant over the said suit land with the rooms standing over there. 4. The Defendant contested the suit by filing written statement. It is stated that the suit is hit by the provision contained in Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short the OCH & PFL Act). The Defendant stated that the suit land had been acquired independently by him and it was an Anabadi land under Government Khata. The Defendant had constructed a house over it in the year 1969. Therefore, during the settlement operation way back on 05.12.1979, the Assistant Settlement Officer while directing for recording of the suit land as ‘Abada Jogya Anabadi’ in the name of the Page 3 of 9 {{ 4 }} State had ordered for noting of forcible possession of the same in favour of the Defendant in the remark column of the ROR. Thereafter Encroachment Case No.214 of 1983 was initiated against the Defendant. The Defendant then filed a Lease Case bearing No.382 of 1983. The suit land was finally settled in his name by an order passed by the Competent Authority. Accordingly, the suit land came to his Khata under Stitiban status and the Defendant paid the rent. That order in the lease case given under the provisions of Odisha Government Land Settlement Act, 1962 (for short, ‘the OGLS Act’) faced challenge at the behest of one Nidhi Parida by carrying Appeal to the Appellate Forum. The Appeal was also rejected on 31.03.2000. Thereafter the Consolidation Operation took place; the suit land has been recorded in the name of the Defendant. During that Consolidation Operation that Nidhi Parida had filed an objection case. But the suit land has remained unaffected. An Appeal being filed before the Deputy Director, Consolidation, Puri, the result remained the same. The Defendant then filing a Demarcation Case No.106 of 1993 has got the suit land demarcated and availing a loan from United Commercial Bank has constructed five pucca rooms over the same. Out of those, four rooms have been let out to outsiders and one room to the Plaintiff on rental basis as a monthly tenant. The Plaintiff has never challenged the right, Page 4 of 9 {{ 5 }} title and interest of the Defendant insofar as the suit land is concerned nor has objected during the lease proceeding or at any time during the Consolidation Operation. It is stated that as due to non-payment of rent by the Plaintiff, the Defendant asked him to vacate the shop room, the counter attack has come from the side of the Plaintiff firstly by lodging of an F.I.R. and thereafter with the institution of the suit. 5. The Trial Court pursuant to the order dated 20.04.2009 passed by this Court in W.P.(C) No.17793 of 2008 sat over to decide the maintainability of the suit in view of the bar contained under section 51 of the OCH & PFL Act, 1972 and section 7 of the OGLS Act. These preliminary issues have been answered against the Plaintiff in holding that the suit in the present form for the reliefs claimed is not maintainable. The First Appellate Court has concurred with the same. 6. Learned counsel for the Appellant submitted that these issues as to maintainability of the suit in view of the specific pleading in the plaint ought not to have been taken up as preliminary issues as those involve mixed question of facts and law. He submitted that the Plaintiff ought to have been given the opportunity to establish his case by leading evidence that the suit land was in occupation of his father as deemed tenant and that had so continued with the Plaintiff and the Defendant since then. He, therefore, submitted that even though there is an order in Page 5 of 9 {{ 6 }} the Lease case in favour of the Defendants after initiation of the encroachment proceeding against the Defendants, those are nonest in the eye of law in view of the status of the Plaintiff and Defendant as the deemed tenants under the State vis-à-vis the suit land. He, therefore, submitted for admission of this Appeal to answer the above as the substantial questions of law. 7. Learned counsel for the Respondent assisting the Court in the admission hearing submitted all in favour of the findings returned by the Trial Court, which have been concurred by the First Appellate Court. He submitted that the settlement of the land under the provision of OGLS Act having created the title in respect of the suit land in favour of the Defendant and the Plaintiff having not questioned that order passed in the Lease case which has attained finality and binds the whole world in view of the nature of the order and procedure followed for the purpose, the suit filed by the Plaintiff claiming his title over the suit land along with the Defendant is not maintainable and that has been rightly so held. He further submitted that in the present suit the order of the said Lease case is not challenged on any ground available under law and, therefore, in view of the provision contained in section 7-B of the OGLS Act, the suit has no leg to stand. Page 6 of 9 {{ 7 }} He further submitted that in view of the fact that the suit land has already been recorded in the name of the Defendant in the Consolidation Operation wherein the final Record of Right has been published, the title in respect of the suit land has to be held to be resting with the Defendant who is the holder of the Consolidation Record of Right and the Plaintiff having not challenged that record of right in the forum available under the said statute, the Civil Courts jurisdiction to readjudicate the title over the suit land is not available in view of the provision contained in section 51 of the OCH & PFL Act, which stands a clear Bar. He contended that these issues being pure questions of law, the Courts below have rightly answered the same. 8. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement and have perused the evidence, both oral and documentary. 9. The Plaintiff in the suit claims joint title and possession over the suit land along with the Defendant. The Defendant, on the other hand, claims his exclusive title and entitlement to the possession as such in stating the possession of the Plaintiff to be permissive. Undisputedly, as per the Record of Right published in the settlement operation, the suit land stood recorded in the name of the State under ‘Abada Jogya Page 7 of 9 {{ 8 }} Anabadi’ status. Nowhere the status of the father of the Plaintiff and the Defendant and thereafter those of the Plaintiff and the Defendant being the legal representatives of Rama Chandra Jena being a tenant under the ex-intermediary in occupation have been recognized in respect of the suit land. The Plaintiff has never staked his claim over the said land either during the Settlement Operation or during the pendency of the Encroachment Proceeding, Lease Proceeding or even lastly in different stages of Consolidation Operation. Even if it is said that the encroachment proceeding and lease proceeding were not within the knowledge of the Plaintiff, that cannot be so said to have not been there within the knowledge of the Plaintiff even from the time of commencement till the closure of the Consolidation Operation going on for a long period. So when in the Consolidation Operation, the Record of Right in respect of the suit land has been finally published in the name of the Defendant and there being challenge from the side of the third person, namely, Nidhi Parida, the position indicated in the said record of right has attained finality, it is no more open to be examined by the Civil Court merely stating that the party coming to challenge in suit had no knowledge. It is the settled position of law that the Consolidation Authority has the power to adjudicate and rule upon the right, title and interest of Page 8 of 9 {{ 9 }} the parties in respect of the land falling within the Consolidation Operation area as per the notification under the OCH & PFL Act. The basis of recording of the said land in the name of the Defendant during the Consolidation Operation is the lease granted by the State in favour of the Defendant. That order passed in the Lease case has also attained finality. Therefore, the present suit does not fall within the circumstances as indicated in the Full Bench decision of this Court in case of Gulzar Khan Vrs. Commissioner of Consolidation, 1993 II OLR 194 for being held as maintainable. In that view of the matter, this Court finds no such legal justification/ reason to hold that the Courts below have erred in law in dismissing the suit. Therefore, the submission of the learned counsel for the Appellant that the Appeal meriting admission to answer the substantial question of law as pointed out by him cannot be countenanced with. 10. Resultantly, the Appeal stands dismissed. No order as to cost. Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 03-Jan-2024 12:48:24 Himansu (D. Dash), Judge. Page 9 of 9