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Rajkishore Das and ors. Vs. Ghanashyam Nayak - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 315 of 1977
Judge
Reported inAIR1983Ori42; 54(1982)CLT412
ActsOrissa Estates Abolition Act, 1952 - Sections 8A(2); Code of Civil Procedure (CPC) , 1908 - Sections 96 - Order 41, Rule 31
AppellantRajkishore Das and ors.
RespondentGhanashyam Nayak
Appellant AdvocateP.C. Misra and ;S.P. Misra, Advs.
Respondent AdvocateP.K. Misra, Adv.
DispositionAppeal allowed
Cases Referred(Krupasindhu Misra v. Gobinda Chandra Misra). Costs
Excerpt:
.....and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the plaintiff's father was well-known to mahant harekrushna das and was rendering various services to him. the main findings of the trial court are that the plaintiff failed to prove the genuineness of the unregistered lease-deed and as such it was not valid, that the suit is barred under section 39 of the act, that the defendants who previously had title to the suit lands have acquired new and independent title by virtue of the settlement of suit lands in their favour and that the plaintiff has not acquired title by adverse possession. i must point out that the direction of the learned lower appellate court that 'the estate abolition cases must be proceeded with from the stage of- issuance of public notice,..........no. 4772 holding no. 499) of village rajasa, p. s. balipatna.2. the plaintiff's case is that the suit lands originally belonged to mahant harekrushna das, father of defendant no. 1, who had lakharaj bahel proprietary interest, but was not in a position to make any use of the same. in the record of rights finally published in 1928 the suit lands were recorded in the name of mahant jayaram das. the plaintiff's father was well-known to mahant harekrushna das and was rendering various services to him. as such at his request in the year 1945 mahant harekrushna das inducted the father of the plaintiff as a raiyat to hold the suit lands and to use them permanently for agricultural purposes on the strength of an unregistered deed of permission executed by mahant harekrushna das. the.....
Judgment:

B.N. Misra, J.

1. Defendants are the appellants against the reversing judgment of the learned Additional District Judge, Bhubaneswar. The plaintiff-respondent had filed O. S. No. 22 of 1974 (I) in the Court of the Musif, Bhubaneswar praying for restoration of title, confirmation of possession and permanent injunction in respect of A. O. 10 decimals of land appertaining to plot No. 2226 under Holding No. 158 (Hal plot No. 4772 Holding No. 499) of village Rajasa, P. S. Balipatna.

2. The plaintiff's case is that the suit lands originally belonged to Mahant Harekrushna Das, father of defendant No. 1, who had Lakharaj Bahel proprietary interest, but was not in a position to make any use of the same. In the record of rights finally published in 1928 the suit lands were recorded in the name of Mahant Jayaram Das. The plaintiff's father was well-known to Mahant Harekrushna Das and was rendering various services to him. As such at his request in the year 1945 Mahant Harekrushna Das inducted the father of the plaintiff as a raiyat to hold the suit lands and to use them permanently for agricultural purposes on the strength of an unregistered deed of permission executed by Mahant Harekrushna Das. The plaintiff's father thus acquired right of occupancy in respect of the suit lands. The plaintiff, the only son of his father, continued in peaceful possession of the suit lands as the Karta of his joint family after the death of his father. In the draft record of rights the names of the plaintiff and his family members were recorded in spite of objections of the defendants. Thereafter the defendants tried to dispossess the plaintiff from the suit lands and then the plaintiff came to learn that the defendants had fraudulently obtained settlement of fair and equitable rent in respect of different portions of the suit plot under the Orissa Estates Abolition Act, 1952 (hereinafter referred to as the Act) in Case No. 528 of 1959/60 without service of notice in accordance with law. Neither the plaintiff nor any member of his family had any knowledge of the institution, pendency or disposal of the estate abolition case. The defendants had also illegally included the suit plot in a deed of partition purported to have been effected between them on 17-2-1960. It is alleged that settlement of fair and equitable rent with the defendants was void and did not bind the plaintiff. The plaintiff has alternatively claimed valid title in respect of the suit lands by way of adverse possession.

3. The written statement filed by defendant No. 2 has been adopted by defendants 1, 3 and 4. According to the defendants, the suit lands originally belonged to Mahant Jayaram Das who died leaving behind his four sons including Mahant Harekrushna Das and the said Harekrushna Das being only one of the four sons had no legal competence to create any leasehold interest in favour of the plaintiff's father in respect of the suit lands which were a part of the ancestral properties of the four sons of Mahant Jayaram Das and who were in a state of jointness till 1958. Execution of any deed of lease by Mahant Harekrushna Das in 1945 is denied. The deed is either forged or manufactured with the aid of an ex-employee of the Mahant's father who had been discharged from service. The suit lands had been recorded as Nij-dakhali of the defendants' estate. After the estate vested in the State in 1959, all the four branches of the defendants' family filed petitions under Sections 6 and 7 of the Act and after regular enquiry through notices and drum-beating, separate pattas were issued to the four branches of the family who were accordingly paying rent thereof. In the family partition, the suit plot was divided amongst the brothers, but the other three branches have allowed defendant No. 2 to use it as a threshing-floor. Neither the plaintiff nor his father had filed any application under Section 8A of the Act to be recognised as a tenant under the State. It is alleged that the draft record-of-rights was manipulated by the plaintiff and his co-sharers, but the defendants have filed abjections for the purpose of rectification of the same and his matter is still pending. The possession of the plaintiff's father and after him of the plaintiff and the members of his family is also denied. It is asserted that till 1962 defendants 1 to 4 were in joint possession of the suit lands and thereafter defendant No. 2 has alone been in possession of the same.

4. The learned Munsif dismissed the plaintiff's suit, with costs. The main findings of the trial Court are that the plaintiff failed to prove the genuineness of the unregistered lease-deed and as such it was not valid, that the suit is barred under Section 39 of the Act, that the defendants who previously had title to the suit lands have acquired new and independent title by virtue of the settlement of suit lands in their favour and that the plaintiff has not acquired title by adverse possession. Against the judgment and decree of the learned Munsif, the plaintiff filed Title Appeal No. 15/35 of 1977/75 which was heard by the learned Additional District Judge, Bhubaneswar. The learned lower appellate Court held that the final orders of the O. H. A. Collector in Case Nos. 528/59-60, 521/59-60 and 517/59-60 were without jurisdiction and nullity and as such no title could be said to have accrued to the defendants by virtue of the said orders. The other questions arising in the case were neither considered nor decided by the learned lower appellate Court. The appeal has been allowed and the judgment and decree of the learned Munsif have been set aside. A direction has been given to the effect that the estate abolition cases referred to above must be proceeded with from the stage of issuance of public notice and then disposed of according to law and in the meanwhile the original suit is to remain pending in the trial Court till disposal of the claim cases.

5. The only point which has been considered by the learned lower Appellate Court is whether the settlement of the suit lands in favour of the defendants in the estate abolition cases is valid or not. Relying upon two decisions of this Court reported in 1971 (2) Cut WR 326 (Baikuntha Das v. Smt. Sabitri Devi) and 1973 (2) Cut WR 1026 (Lalbihari Patnaik v. Saraswati Ray), the learned lower Appellate Court has held in para 7 of the judgment,

'Considering the facts of the present case in the aforesaid legal perspective, it would be seen that the order-sheets of the three claims cases covered under Exts. F/1, G/1 and H/1 do not disclose the mode of service. A reading of the entire order-sheets in these three cases would not so to show that the modes of service of notice as enjoined by their Lordships in the aforesaid two decisions of our own High Court have at all been followed. The mere proclamation by beat of drum in the village cannot be regarded as full compliance with the requirement inasmuch as that locality has not been determined by the E. A. Collector as the appropriate locality for the purpose. That was the choice of the serving peon and amounts to an appropriation of the discretion vested in the E. A. Collector. Their is no evidence also that any placards have been pasted at conspicuous parts of the villages where the lands are situate. The order-sheets of the three cases do not disclose that the O. E. Collector used his discretion to select the conspicuous places where placards were to be pasted or where the proclamation or beat of drum was to be given. From the aforesaid discussions. I am inclined to hold, while disagreeing with the finding of the learned trial Court, that the public notice has not been given in these cases as mandatorily required by the first proviso to Section 8-A (2) of the O.E.A. Act. As enjoined by their Lordships of our own High Court, in such state of affairs, the final orders of disposal settling the suit land with the defendants are to be held to be without jurisdiction. The resultant conclusion, therefore, is that the final orders of the O.E.A. Collector passed in Bhubaneswar Case Nos. 528/59-60, 521/59-60 and 517/59-60 are held to be without jurisdiction and nullity. No title can, therefore, be said to have accrued to the defendants by virtue of these final orders. The net result, therefore, is that the estate abolition cases must be proceeded with from the stage of issuance of public notice, that is to say fresh public notice shall issue strictly in accordance with Sub-section (2) of Section 8-A of the Estates Abolition Act, and thereafter the matters should be decided according to law.'

6. It is worthy of note that the views expressed in the aforesaid two decisions of this Court have been modified by a 'Full Bench decision of this Court reported in (1980) 50 Cut LT 393: (AIR 1980 Ori 199) (Krupasindhu Misra (and after him) Biranchi Prasan Misra v. Gobinda Chandra Misra). The Full Bench affirmed the opinion expressed in the two aforesaid Division Bench cases (1971 (2) Cut WR 326 and 1973 (2) Cut WR 1026) that wide publicity of the claim was intended by the statute and that the requirement of notice stipulated in the first Proviso to Section 8-A (2) of the Act was in conformity with natural justice and was mandatory. But differing from the views of the two Division Benches the Full Bench held that the procedure laid down for service of notice or mode of notice was directory. The Full Bench also further observed that substantial compliance of the provisions contained in the first Proviso to Section 8-A (2) of the Act was enough. In the present case it is necessary that materials relating to the modes of service of notice hi the estate abolition cases should be examined keeping in view the principles enunciated in the Full Bench decision referred to above. I must point out that the direction of the learned lower Appellate Court that 'the estate abolition cases must be proceeded with from the stage of- issuance of public notice, that is to say, fresh public notice shall issue strictly in accordance with Sub-section (2) of Section 8-A of the Estates Abolition Act and thereafter the matters should be decided according to law', is clearly in excess of jurisdiction. The learned lower Appellate Court is not competent to give any direction to the O.E.A. Collector to proceed with the cases and dispose them of. It is also unfortunate that the learned lower Appellate Court has not considered or decided any of the other issues arising in this case. Being the final Court of fact it was the duty of that Court to give its decision on each and every issue arising in the case. If that had been done, this Court could have finally decided the matter here. It is therefore, necessary for the ends of justice that the case should be remanded to the learned lower Appellate Court for fresh disposal according to law.

7. This appeal is accordingly allowed and the judgment and, decree of the learned lower Appellate Court are hereby set aside. The case is remanded to the learned lower Appellate Court for fresh disposal according to law with the direction that all the issues arising in the case should be decided and the issue relating to the settlement of the suit lands under the provisions of the Act should be decided keeping in view the principles decided by the Full Bench in (1980) 50 Cut LT 393: (AIR 1980 Ori 199) (Krupasindhu Misra v. Gobinda Chandra Misra). Costs shall abide the event. Eighteenth October, 1982 is fixed for appearance of the parties before the learned lower Appellate Court for the purpose of receiving directions of that Court as to further proceedings in the appeal.


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