1. Petitioners are successors-in-interest of Bhagabat Kundu. Bhaga-bat Kundu had filed a civil suit (O.W. No. 217 of 1966) in the court of the Munsif, Balasore against opposite party No. 4 for declaration of title and for eviction of opposite party No. 4 on the ground that opposite party No. 4 had trespassed upon the suit land. The defence of opposite party No. 4 was that the vendor of Bhagabat Kundu had contracted to sell the suit land to him and had delivered possession thereof. He claimed that he was entitled to protection under Section 53-A of the Transfer of Property Act. The learned Munsil held that Bhagabat had title to the suit property and opposite party No. 4 was a trespasser and hence decreed the suit. Opposite Party No. 4 preferred an appeal against the decree of the learned Munsif, but the same was dismissed. He thereafter preferred Second Appeal No. 272 of 1979 which was decided on 12-2-1974 and the decree of the trial court was upheld. After disposal of the Second Appeal, the petitioners who are the legal representatives of Bhaga-bat Kundu levied execution of the decree for delivery of possession, but opposite party No. 4 filed O. L. R Case No. 51 of 1974 under Section 36-A of the Orissa Land Reforms Act claiming tenancy right in respect of the suit property. The Tahasildar held that possession had been taken in the execution case levied by the petitioners after the disposal of Second Appeal and that opposite party No. 4 was not a tenant. As against the said order of the Tahsilaar, opposite party No. 4 preferred O.L.R. Appeal No. 86 of 1975. The appellate authority set aside the decision of the Tahsildar holding that the revenue court is the proper court to hold whether there was relationship of landlord and tenant and remanded the case to the Tahsildar. As against the said order, the petitioners preferred O. L. R. Revision Case No. 20 of 1976 before the Additional District Magistrate who was the authority under the Land Reforms Act. The revisional authority confirmed the findings of the appellate authority and dismissed the revision. It further held that the revenue officer can suo motu make a case to confer the tenancy right under Sections 3, 61 and 67 read with Section 36-A of the O.L.R. Act and the Civil Court has no jurisdiction to give a finding about the relationship of landlord and tenant. Ultimately, the revisional authority held that opposite party No. 4 is the tenant and directed to fix the fair rent. This writ petition is directed against the decision of the re-visional authority.
In the return, it is asserted that the proper authority under the O. L. R. Act is the revenue court and the Civil Court has no jurisdiction to record the finding as to relationship of landlord and tenant and, as such, the decision of the civil court culminating in the Second Appeal is not binding against opposite party No. 4.
2. Admittedly, application under Section 36-A of the O.L.R. Act was filed after disposal of the Second Appeal and during the pendency of the execution case. In the Second Appeal, it was held that opposite party No. 4 failed to establish his claim as Bhagchasi and he was not in possession of the property, but was a trespasser. The claim for specific performance of contract made by opposite party No. 4 in the civil suit was barred by limitation. Opposite party No. 4 had taken a stand in the civil suit that he came into possession of the disputed property by virtue of an agreement for sale by the vendor of the predecessor of the petitioners and he was in possession. As such, he also claimed protection under Section 53-A of the T. P. Act. The stand taken by opposite party No. 4 was negatived by the civil court. He never took the stand in the civil suit that he was a tenant under the O. L. R. Act even though the Second Appeal was finally disposed of in 1974. Being defeated in the litigation in the civil court, while the petitioners levied execution for taking possession of the suit property and to evict opposite party No. 4 as he was held to be a trespasser, opposite party No. 4 came with a petition under Section 36-A of the O. L. R. Act claiming tenancy over the suit property.
3. The question for consideration is when there has already been a finding that opposite party No. 4 is not a tenant within a definition of the Act, whether any right subsists to opposite party No. 4 to make an application under Section 36-A of the O. L. R. Act for holding that he is a tenant, but not a trespasser. Such a question was raised in this Court in Dandapani Sahu v. Kon-chada Panduranga Subudhi, (1975) 41 Cut LT 1320. In that case, there had already been a decree that defendant No. 1 in that case was not a tenant within the definition of the Act and when that defendant No. 1 filed a petition claiming tenancy right under Section 36-A of the O.L.R. Act, it was held that the decrees already passed cannot be superseded or vacated on account of introduction of Section 36-A of the Act to the extent that a binding decree declaring defendant No. 1 to be trespasser would stand ignored. In view of the adjudication that he is a trespasser, the application under Section 36-A of the Act was not maintainable. The decree of the civil court should not stand vacated or wiped out and: the dispute should not be left to be adjudicated by the revenue officer.
The learned counsel for opposite party No. 4 relied on a decision of this Court in Sankar Kumar Bhattar v. Tahsildar-cum-Revenue Officer, Basta, ILR (1975) Cut 1526 : (AIR 1976 Orissa 103). That was a case where the civil suit was pending in the trial court when the amendment came into force and the defendant in that case took the stand under the O. L. R. Act. The suit was only for interim injunction and after the amendment of the O. L. R. Act, the defendant took the stand that he was protected under the provisions of the said Act and he filed a petition under Section 36-A of the O. L. R. Act. The position was that while the civil suit for an injunction was pending in the civil court for trial, the defendant filed a petition under Section 36-A of the O. L. R, Act and this Court held that the revenue authority was the proper authority in such circumstances to decide the dispute. It was further held in that case that the meaning of the expression 'to entertain any suit' in Section 67 of the O. L. R. Act would be to receive and to deal with it or to admit it to consideration, and the process of entertaining would continue until the suit is finally determined. The net result would be that the civil court would lose the further jurisdiction to decide the question of existence of relationship of landlord and tenant between the petitioners and opposite parties after coming into force of the President's Act 17 of 1973. The case of Sankar Kumar Bhattar was taken into consideration by this Court in Dandapani case. It was held that there had already been a finding that the defendant in that case was not a tenant within the meaning of the definition of the Act and the right to make an application under Section 36-A of the Act has been given by the statute to . a tenant, and not to a trespasser. The facts and circumstances of the present case are almost equal to the case of Dandapani Sahu. The difference between Dandapani Sahu case and the case of Sankar Bhattar is that in the latter case there had not been any conclusive decision as to whether the defendant was a trespasser or not but in Dandapani Sahu case there had already been a decision that the defen- dant was a trespasser. Therefore, the principles laid down in Sankar Bhattar. case are not applicable to the facts and circumstances of the present case.
4. It has also been held by the Supreme Court in Smt. Sonawati v. Sri Ram, AIR 1968 SC 466, that a party who is defeated on merits of dispute may not by securing order from another court, during the pendency of suit be permitted to displace jurisdiction of civil court to try the suit which was within the competence when the suit was filed. Admittedly, in the instant case when the suit was filed in the civil court, the civil court had jurisdiction to try the case. It is also apparent from the records that after being defeated in the litigation in the civil court, opposite party No. 4 came up with a petition under Section 36-A of the O. L. R. Act while the decree of the civil court was pending for execution. There had already been a decision of the proper court that opposite party No. 4 was a trespasser. Opposite party No. 4 cannot be allowed to turn round and say that he is a tenant and thereby to nullify the decree of the civil court.
5. The learned counsel for oppositeparty No. 4 relying on Sections 3 and 67 ofthe O. L. R. Act contends that it is therevenue court which is the proper authority to decide the dispute between theparties and the civil court has no jurisdiction. We have already held thatwhen there has already been an adjudication by the civil court, the applicationunder Section 36-A of opposite party No. 4in the revenue court is not maintainable. The questions raised by the learned counsel for opposite party No. 4 under Ss. 3 and 67 of the O. L. R. Actwere also taken into consideration bythis Court in Dandapani Sahu caseAfter considering the legal positionsraised under the aforesaid two Sections,this Court has come to the ultimateconclusion that an application underthese circumstances under Section 36-A ofthe O. L. R. Act is not maintainable.Accordingly, we hold that the decisionof the Additional Tahsildar vide Annexure-1 is the correct decision and thedecisions of the appellate and revisionalauthorities as in Annexures 3 and 4 are.wrong.
6. In the result, the writ petition is allowed. Annexures 3 and 4 are hereby quashed and Annexure 1,, the decision of the Additional Tahsildar, is sustained;
In the circumstances of the case, there will be no order as to costs. R.C.
7. I agree.