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Gopal Meher and ors. Vs. Dala Bariha and ors. - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 329 of 1977
Reported inAIR1983Ori27; 54(1982)CLT613
ActsOrissa Estates Abolition Act, 1952 - Sections 1 and 7; Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantGopal Meher and ors.
RespondentDala Bariha and ors.
Appellant AdvocateR.K. Mohapatra and ;A. Misra, Advs.
Respondent AdvocateP.K. Misra, Adv.
DispositionAppeal dismissed
Cases ReferredKumar Bimal Chandra Sinha v. State of Orissa
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........and was, therefore, impleaded as a defendant. following abolition of the estate where the disputed property was included, the intermediaries laid claim under chapter ii of the orissa estates abolition act (hereafter referred to as the act) and the plaintiffs raised objection to such claim for settlement. in estates abolition case no. 11/5-138 of 1962-63, the collector under the act passed the following order on 12-3-63:--'ordered that plots with area as mentioned in the schedule vi be settled with dala bariha, s/o aiban bivisan bariha, bhima bariha, jaya shinga bariha, ganga bariha, s/o. arakhita bariha under section 7 of the o.e.a. act with effect from 1-4-60 on payment of annual rent of re. l (rupee one only) and cess of re. 0.03 (paise three) only. the application made beyond.....

B.N. Misra, J.

1. The defendants have carried this appeal against the reversing judgment and decree of the learned Subordinate Judge, Bargarh. The plaintiffs filed the suit on 22-1-68 asking for declaration of title and confirmation of possession; alternatively for recovery of possession in the event of a finding that they were out of possession. They pleaded (hat their father Arakhita Bariha had title to the property and his name had been recorded in the Hamid Settlement. After him, the plaintiffs succeeded to the property and were in possession. Jayasingh, one of the brothers who had joint interest, did not join the plaintiffs and was, therefore, impleaded as a defendant. Following abolition of the estate where the disputed property was included, the intermediaries laid claim under Chapter II of the Orissa Estates Abolition Act (hereafter referred to as the Act) and the plaintiffs raised objection to such claim for settlement. In Estates Abolition Case No. 11/5-138 of 1962-63, the Collector under the Act passed the following order on 12-3-63:--

'Ordered that plots with area as mentioned in the Schedule VI be settled with Dala Bariha, s/o Aiban Bivisan Bariha, Bhima Bariha, Jaya Shinga Bariha, Ganga Bariha, s/o. Arakhita Bariha under Section 7 of the O.E.A. Act with effect from 1-4-60 on payment of annual rent of Re. l (Rupee one only) and cess of Re. 0.03 (paise three) only. The application made beyond the scheduled date. Hence an amount of Rs. 3.18 (Rupees three and paise eighteen only) is charged towards Salami'.

Against the said order, a review was asked for and on l'4-4-64 the very same Collector modified the order by cancelling the settlement and directing settlement with the defendants. The plaintiffs carried an appeal which was numbered as Estate Abolition Appeal No. 14 of 1964-65 and by judgment dated 1-5-65 the Appellate Collector set aside the subsequent order of the original Collector under the Act by saying:--

'......The order passed by the learned Tahasildar in Misc. Case No. 2 arising out of review Case No. 11/5-138 of 62-63 cannot be maintained. In result appeal is allowed.'

The net effect, therefore, was that the original order of the Collector dated 12-3-63 was sustained. Notwithstanding the settlement with the plaintiffs, the defendants created disturbance with their possession, raised a dispute u/Section 145 Cr. P. C. where an adverse order was made against the plaintiffs. They also started filing false criminal cases with a view to harassing the plaintiffs. This led to the institution of the suit.

2. Defendants 1 and 2 filed a joint written statement maintaining that Arakhit was merely a Sikimi tenant but he had given up possession by 1926-27 and the father of the defendants had remained in possession of the land thereafter. They contended that the claim for settlement had been made under the Act and the Tahasildar acted without jurisdiction in directing settlement of the disputed property with the plaintiffs. The plaintiffs were never in possession and at any rate, no settlement could have been made u/Section 7 of the Act with them. The claim laid in the suit, therefore, was not maintainable.

3. The trial court dismissed the suit on a finding that both parties were trespassers over the suit land and the plaintiffs were, therefore, not entitled to any relief.

4. Before the Appellate Court, only one contention was advanced in support of the appeal, viz., the vesting Notification brought about annihilation of all existing titles and the property vested in the State free from all encumbrances. The settlement granted by the Collector under the Act by his first order which was upheld in appeal by vacating the order passed on review created interest of the plaintiffs in the property. The defendants had, therefore, no subsisting title. The plaintiffs' claim had, therefore, to be decreed. The learned Appellate Judge came to hold:--

'......The State being the owner of all the lands when settled a land to a Rayat, he gets an independent status and acquires a right to the exclusion of others. Therefore, the possession of other person in the lands amounts to trespass and in the instant case, respondents 1 and 2 are only trespassers over the suit lands not having any valid right and title to possess the lands as such. Therefore, the filing of record of rights is not sufficient to vest occupancy rights of defendants 1 and 2 over the lands in question. The Act completely intends to abolish all intermediaries and rent receivers and establish direct relationship between the State in which all such interests have been vested and gives an independent right to the tiller of the soil directly without any encumbrances. In view of this fact, plaintiff-appellants are bound to get a relief in this appeal.'

5. There is no dispute that as a result of the appellate judgment under the Estates Abolition Act vide Ext. 1, the original order under Ext. J was sustained and the order passed on review under Ext. F was set aside. The effect of the original order was that the disputed property was not settled with the defendants and the tenancy interest of the plaintiffs was upheld. There is no scope to dispute that when settlement of the disputed property was not granted by the Collector, as a consequence of the vesting Notification their interest in the disputed property came to an end. The Collector accepted the objection of the plaintiffs and found that they were entitled to recognition of their tenancy. It is true that he fell into confusion in directing settlement purporting, to be under Section 7 of the Act. The plaintiffs as objectors were not claiming any intermediary right in themselves. On the other hand, they had objected on the footing of being in possession as tenants. Tenants were not entitled to any settlement under Section 7 of the Act as claim thereunder to settlement could be only made by ex-intermediaries. But the net effect of the order under Ext. J was that the defendants were not found to be in possession and were not, therefore, entitled to settlement and the plaintiffs were found to be in possession and their claim which was raised by way of objection was accepted.

There is no dispute that the appellate order under Ext. 1 became final. Unless the defendants had a settlement, in their favour under the Act, they could no more claim title to the property. The vesting, to repeat, extinguished their interest in the property and the recognition of the tenancy of the plaintiffs over the disputed property amounted to acceptance of the plaintiffs' claim of possession.

6. The contention advanced before me that the order of the Collector was vitiated inasmuch as the application had been made beyond the date has no foundation. As I have already indicated, the plaintiffs were objectors and not Claimants in Estate Abolition Case No. 11/5-138 of 1962-63. Therefore, there was no question of any delay by them in making of the application. As it appears, the defendants' application for settlement was delayed and when it was published, objection had been raised by the plaintiffs. The submission that the Collector's order was without jurisdiction having been made on an application filed beyond time, therefore, loses all force. It is unnecessary to refer to authorities cited at the bar as to the, effect of an order made by a competent authority with jurisdiction where limitation had set in. Yet, I would like to indicate that an order made by a competent authority beyond the period of limitation was not an inherent lack of jurisdiction as pointed out by the Supreme Court in the ease of Ittyavira Mathai v. Varkey Varkey, AIR 1964 SC 907. The principle indicated in this case has been followed in the case of Chittoori Subhanna v. Kudappa Subhanna, AIR 1969 SC 1325 and in the case of Official Trustee, West Bengal v. Sachindra Nath Chatterjee, AIR 1969 SC 823.

7. The order under Ext. 1 had thus finalised the rights of the parties with regard to the disputed property and become final. It took away the rights of the defendants and recognised the right of the plaintiffs. It has been held by the Supreme Court in the case of Kumar Bimal Chandra Sinha v. State of Orissa, AIR 1962 SC 1912 that tenancy right is not affected by the Estates Abolition Act. Therefore, the plaintiffs' right as objectors having been recognised in the Estate Abolition proceedings, they became tenants under the State and the defendants had lost their right, title and interest in the disputed property.

8. The sum total position, therefore, is that under Ext. 1 the plaintiffs' right in the disputed property was recognised and that of the defendants was taken away. The order of the Estates Abolition Collector under Ext. J was allowed to become final. That gave rise to a binding decision between the parties and the plaintiffs' interest in the disputed property was thus recognised and sustained to the exclusion of the defendants. That decision under Ext. J as upheld under Ext 1 became res judicata for all practical purposes and the defendants were no more entitled to contend that they had title to the property.

9. The plaintiffs have not impleaded the State as a party. The findings in the civil litigation are, therefore, not binding on the State.

10. The appeal is devoid of merit and has got to be dismissed. There would, however, be no order for costs.

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