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Paramananda Pradhan and anr. Vs. Palau Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 192 of 1977
Judge
Reported inAIR1984Ori57; 56(1983)CLT482; 1984(I)OLR40
ActsOrissa Merged Territories (Village Offices Abolition) Act, 1963 - Sections 3, 6 and 13
AppellantParamananda Pradhan and anr.
RespondentPalau Sahu and ors.
Appellant AdvocateS.C. Mohapatra, Adv.
Respondent AdvocateR.N. Das, Adv.
DispositionAppeal partly allowed
Cases ReferredMangulu Jal v. Bhagaban Rai
Excerpt:
.....and he is, therefore, not an occupancy tenant of the land. ' evidently, this refers to bhogra lands enjoyed by the gountia towards his remuneration. it is well settled that where a special statute provides for a person aggrieved by an order passed thereunder, a particular remedy to be sought in a particular forum and in that manner, and all other forums and modes of seeking it are excluded. legal position is well settled that even if jurisdiction is excluded, it is always open to the civil courts which are courts of general jurisdiction to consider and decide whether the statutory tribunal has acted within the ambit of the powers conferred upon it by the statute to which it owes its existence or the provisions of the act have not been complied with or the statutory tribunal has not..........a-1 and the gounti-raiyati lands described in schedule a-2 of the plaint. both the items of the suit lands arc situate at village kusumpal in the former state of bamra which merged with orissa and became a part of the district of sambalpur on january 1, 1948.2. the substantial question of law that arises for consideration in this appeal is whether the gounti-raiyati lands in the former state of bamra are the personal property of the gountia or he ceases to have the right to hold the same on abolition of the village offices.3. in the case of state of orissa v. prafulla kumar pradhan: ilr 1980 (1) cuttack 547, a division bench of this court held that the incidence of the tenancy of gounti-raiyati land is the same as that of the raiyati land and that such lands are the raiyati lands of.....
Judgment:

P.K. Mohanti, J.

1. The second appeal is by defendants 1 and 2 against a decree of reversal. The suit was for partition of the plaintiff's half share in the raiyati lands described in Schedule A-1 and the Gounti-raiyati lands described in Schedule A-2 of the plaint. Both the items of the suit lands arc situate at village Kusumpal in the former State of Bamra which merged with Orissa and became a part of the district of Sambalpur on January 1, 1948.

2. The substantial question of law that arises for consideration in this appeal is whether the Gounti-raiyati lands in the former State of Bamra are the personal property of the Gountia or he ceases to have the right to hold the same on abolition of the village offices.

3. In the case of State of Orissa v. Prafulla Kumar Pradhan: ILR 1980 (1) Cuttack 547, a Division Bench of this Court held that the incidence of the tenancy of Gounti-raiyati land is the same as that of the raiyati land and that such lands are the raiyati lands of the Gountia and would continue to remain his property even after he ceases to hold that office. When the present appeal came up before one of us (P.K. Mohanti, J.) correctness of that decision was challenged. The appeal was, therefore, referred to a larger Bench for disposal. That is how the entire appeal has been placed before us for disposal.

4. We may now briefly refer to the facts which are relevant for decision of this appeal.

Indra Sahu had two sons, viz., Samantra and Sahadev. The plaintiff is the son of Sahadev. Baibar, Natabar and Dibakar are the sons of Samantra. Baibar and Natabar are dead. Defendants 1 to 4 are the legal heirs of Baibar. Defendants 6, 8 and 9 are the legal heirs of Natabar. Dibakar is defendant No. 7 in the suit Bidyadhar, the original plaintiff having died on 3-11-1974 his legal heirs have been substituted. Kairi, the widow of Natabar was impleaded as defendant No. 5. She died during the pendency of the suit and her name was expunged from the record.

Samantra and Sahadev, the two sons of Indra Sahu constituted a Hindu Mitakshara joint family with the former as the Karta. The family had ancestral roperties at mouza Aunii and out of the income of those properties gountiship of village Kusumpal was acquired with Bhogra and Gounti-raiyati lands. After the death of Samantra and Sahadev, the name of Baibar, who was the seniormost member of the family, was recorded in respect of the suit lands. Subsequently, in 1959-60 there was a partition of the properties situated at village Aunli. But the suit lands were kept joint. In 1974, the plaintiff demanded partition, but the defendants turned a deaf ear to the same. Hence the plaintiff filed the suit for partition of his half share.

5. Defendants 1 and 2 who are the sons of Baibar filed written statement contending, inter alia, that the suit lands were the self-acquired properties of their father and are not liable for partition; that the suit was barred by limitation; and that the civil court had no jurisdiction to entertain the suit in respect of the lands in Schedule A-2 as those were being dealt with under Section 6 of the Orissa Merged Territories (Village Offices Abolition) Act, 1962 (Orissa Act 10 of 1963).

6. The trial court came to hold that the suit lands are the joint family property of the parties and that the civil court has jurisdiction to entertain the suit. But it dismissed the suit as barred by limitation being hit by Article 127 of the Limitation Act. The appellate court agreed with the trial court that the suit lands are the joint family property of the parties and that the civil court has jurisdiction to entertain the suit, but differed on the question of limitation. Accordingly, it passed a preliminary decree for partition of the plaintiff's half share in both the items of suit lands. Both the courts below relying on the Division Bench decision of this Court cited above took the view that the Gounti-raiyati lands do not cease to be the property of the Gountia even after abolition of that office.

7. The finding of the lower appellate court on the question of limitation is not assailed before us. The finding of fact that the raiyati lands as per Schedule A-1 of the plaint are the joint family property of the parties is based on appreciation of evidence and is not assailable in second appeal. As regards the Gounti-raiyati lands described in Schedule A-2 of the plaint it is urged on behalf of the appellants that the findings of the counts below are contrary to the provisions of Orissa Act 10 of 1963. It is also urged, that the civil court has no jurisdiction to entertain the suit in respect of those lands.

8. Orissa Act 10 of 1963 came into force in the former State of Bamra on 1-5-1965 and the suit out of which this appeal arises was filed on 17-7-1971. It is necessary to refer to the relevant provisions of the Act and the Rules framed thereunder.

9. 'Gounti-raiyati land' has been defined in Section 2 (G) of the Act to mean lands recorded, as such in the settlement papers in the merged territories of the former State of Bamra. Admittedly the lands described in Schedule A-2 of the plaint have been recorded as Gounti-raiyati lands in the settlement record-of-rights--Vide Ext. 2.

10. Section 3 of the Act deals with abolition of village offices and consequences thereof. It provides as follows:

'3. Notwithstanding anything in any law, usage, settlement, grant, sanad or order or in any judgment, decree or order of a court, with effect from and on the appointed date -

(a) the Village Offices, if any, within the respective territories shall be deemed to have been abolished.

(b) all the incidents of the service tenures relating to such offices shall be deemed to have been extinguished;

(c) all settlements, sanads, and all grants in pursuance of which such tenures were being held, immediately before the appointed date shall be deemed to have been cancelled;

(d) the rights of the holders of such offices to receive any emolument shall be deemed to have been terminated;

(e) all rights to hold office and any liability to render service appertaining to such office shall stand extinguished;

(f) all Bhogra lands shall stand resumed and vested absolutely in the State Government free from all encumbrances? and

(g) the holder of any Village Office shall cease to have the right to hold all other lands which he would not have continued incidental to his office.'

11. Section 6 which deals with settlement of Gounti-raiyati lands runs as follows:

'6. All Gounti-raiyati lands shall be settled with rights of occupancy therein on a fair and equitable rent with the Gountia or, as the case may be, with him and all those other persons, who may be in the enjoyment of the land or any part thereof as his co-sharers or as tenants under him or under such co-sharer to the extent that each such person was in separate and actual cultivating possession of the same immediately before the appointed date.'

12. Chapter III of the Orissa Merged Territories (Village Offices Abolition) Rules, 1963 framed under the Act prescribes the procedure for settlement of Gounti-raiyati lands. Under the Rules, the Tahasildar is required to prepare a draft Jamabandi with necessary particulars and after conducting a local enquiry and inviting objections shall frame the final Jamabandi and thereafter intimate the parties about the lands settled with each of them and other relevant particulars thereof.

13. It would thus be seen that the Act provides for settlement of Gounti-raiyati lands with rights of occupancy therein with the Gountia or, as the case may be, with him and all those other persons who may be in the enjoyment of the land. If the Gounti-raiyati lands were the personal property of the Gountia the question of settlement of the same with him after abolition of the Village Office would not arise. In view of the provisions of Section 6 of the Act, it is not open to the Court to embark upon an enquiry as to whether the Gounti-raiyati lands in the ex-State of Bamra are the personal property of the Gountia. When the statute enjoins that Gounti-raiyati lands shall be settled with rights of occupancy with the persons specified in Section 6, effect must be given to the same irrespective of consequences.

14. The fallacy which underlies the decision in the case of Prafulla Kumar Pradhan consists in thinking that the expression 'Gounti-raiyati' as explained in the Dewar's Settlement Report and as understood in the district of Sambalpur was adopted in the ex-State of Bamra. The gist of the decision lies in the following passages. Hon'ble R.K. Das, J. in his judgment observed as follows:

'......There is, however, no restriction for a Gountia to hold any raiyati land as will appear from the Revenue Rules. It is these kinds of raiyati land which are known as Gounti-raiyati. The incidents of such raiyati lands are in no way different from the other ordinary raiyati lands and. continue to remain the property of the Gountia even after he ceased to hold that office...'

Hon'ble G.K. Misra, J. (as he then was) in a separate judgment observed as follows:

'There is no provision in the Rules whereby any other kind of land possessed by a gaontia would pass to the next gaontia on the cessation of former's gaontiship. Neither is there any rule that a gaontia cannot own raiyati land in his own right, title and interest. In the absence of such a rule and with the specific provision that a gaontia has no right, title and interest in bhogra land, conclusion is irresistible that a gaontia can own raiyati land which he would continue to own and possess even after the termination of gaontiship. Such raiyati land held by a gaontia during his tenure of office is called gaontiahi-raiyati. The incidents of the tenancy of gaonti-raiyati is the same as that of raiyati. Lands described as gaontiahi-raiyati during gaontia's tenure of office are his raiyati lands and would continue to vest in him after he goes out of the office.'

Both the Hon'ble Judges relied on the Settlement Report by Mr. F. Dwar I. C. S., page 52, para 88 where Gounti-raiyati right has been described as follows :

'88. All land held by khalsa gaontias other than their bhogra, whether acquired from raiyats or newly broken from waste, has been recorded as 'gaontiahi-raiyati'. The gaontia is in this case presumably a Government raiyati, a holder of a survey number, like other raiyats of the village, and is subject to the provisions of Revenue law governing such raiyats. But, if he is sole gaontia, he cannot well be his own tenant, and he is, therefore, not an occupancy tenant of the land. If he is one of a body of gaontias holding the village, he is presumably an occupancy tenant holding from that body.'

Apparently the above passage in the Settlement Report deals with the Gounti-raiyati lands of the district of Sambalpur where the Central Provinces Land Revenue Act and the Central Provinces Tenancy Act are in force. The Settlement Report was prepared in the year 1906. No. doubt, the Central Provinces Land Revenue Act and Central Provinces Tenancy Act made reference to Gounti-raiyati lands. But in the Bamra Revenue Rules which were framed in the year 1929, there is absolutely no reference to any tenancy as Gounti-raiyati tenancy. In Schedule A of the said Rules, it is provided as follows:

''The Gountia is a State servant in respect to certain duties and in return for discharging these draws certain remuneration or enjoys certain lands. Such lands belong to the State, pass with and depend upon the holding of the office of gountia, and are not subject to the rights of private property.'

Evidently, this refers to Bhogra lands enjoyed by the Gountia towards his remuneration. The following provisions in the Raiyati Mutation Rules of the ex-State of Bamra indicate the nature and character of the Gounti-raiyati lands:

'12. When the holdings of Kondhs, Gonds, Kols, Disans, Khariyas, Bhunyans and Pans fall vacant either by death or abandonment, the Gountia must, as far as possible, settle the vacant holding with raiyats of these castes. No settlement of such holding shall be made with a raiyal of any other castes without special permission of the State, which must be obtained before applications are made for mutation.

13. Gountia should find permanent raiyat for vacant holdings without delay. Till then they may cultivate temporarily either themselves or through others, reporting the facts as required under Rule 5.

14. Holdings which are left vacant without surrenders shall remain in charge of the Gountia who shall wait for two agricultural years for the return of the recorded tenant before settling new permanent raiyats on them. No penalty shall be charged, if due information is sent to the Revenue Office.

Thus, it appears that the Gountia used to possess the vacant holdings of the raiyats and to remain in charge of those holdings until they were settled with other raiyats. He was in possession of those lands by virtue of or as incidential to his office. Such lands were called the Gounti-raiyati lands during the tenure of office of the Gountia. After abolition of the village offices, the Gountia shall cease to have the right to hold, the Gounti-raiyati lands as provided under Section 3 (g) of the Act.

15. The Hakiyat Gaonti Patta (Ex. D) granted in favour of Baibar Sahu also gives some indications about the nature of the Gounti-raiyati right. It provides as follows:

'Clause (12). By virtue of your appointment, you are entitled to bhogra maufi either in the .shape of cash or land. If there are no bhogra lands or if there are no sufficient land fit for bhogra maufi, you would get money in cash. You would get bhogra maufi in accordance with the rate prescribed for the tauzi given to you along with the patta.

XXX XXX XXX

If there are not enough bhogra lands, you can ask for permission of the State either for reclaiming Anubadi land to be adjusted towards bhogra or for allowing you to compensate yourself from gaon-tiahi-raiyati lands towards bhogra lands.'

If the Gounti-raiyati lands were the personal property of the Gountia, the question of compensating him from such lands towards the Bhogra lands would not arise.

The aforesaid features lead to the irresistible conclusion that the Gounti-raiyati lands in the ex-State of Bamra were not the personal property of the Gountia, but he was in charge of those lands by virtue of or as incidental to his office and according to the provisions of Section 3 (g) of the Act he ceases to have the right to hold those lands.

16. The definition in Section 2 (g) of Orissa Act 10 of 1963 refers only to the Gounti-raiyati lands of the former State of Bamra. Section 6 of the Act is applicable to the former State of Bamra only and to no other former States. When the words of the statute are clear, plain and unambiguous and arc susceptible to only one meaning, it is not necessary to seek for guidance regarding the nature and character of the Gounti-raiyati lands of the ex-State of Bamra from the Revenue laws or the Settlement Report in respect of the Gounti-raiyati lands existing in the other parts of the district of Sambalpur. It is unfortunate that the provisions of the Act and the Rules were not brought to the notice of the Division Bench in the case of Prafulla Kumar Pradhan. The decision in that case is contrary to law and we overrule the same.

17. Our attention has been invited to a Full Bench decision of this Court in the case of Gajaraj Sahu v. State of Orissa, AIR 1971 Orissa 1, wherein it was held that 'Gounti-raiyati' means raiyati lands held by the Gountia during his tenure of office and that Gounti-raiyati lands are, therefore, raiyati lands.

The lands involved in that case were the Gounti-raiyati lands of the district of Sambalpur governed by the Central Provinces Land Revenue Act and the question for consideration was whether such lands were raiyati lands and were freely transferable. The decision must, therefore, be read in the light of the facts of that case and is no authority on the question whether the Gounti-raiyati lands of the former State of Bamra governed; by the provisions of Act 10 of 1963 are the personal property of the Gountia.

18. In view of the legal position as discussed above, it is not necessary for us. to consider the argument advanced on behalf of the respondents in support of the contention that the Gounti-raiyati lands described in Schedule A-2 of the plaint are the joint family property of the parties. ,

19. The next important question which requires consideration is whether the civil court has jurisdiction to entertain the suit in respect of Schedule A-2 lands. During the pendency of the suit, Schedule A-2 lands were settled with the appellants and respondent No. 8 Dibakar Sahu on 22-10-1971 under the provisions of Section 6 of the Act--Vide Ext. E. It is represented at the Bar that an appeal against the order of settlement is now pending before the Collector of Sambalpur. The question arises whether the civil court has jurisdiction to entertain the suit for partition of the Gounti-raiyati lands which have been settled tinder Section 6 of the Act.

Section 13 of the Act provides for appeal and revision against any order passed under the Act or the Rules framed thereunder. It also provides that subject to the decision of the High Court the orders passed by the Board of Revenue shall be final. It is well settled that where a special statute provides for a person aggrieved by an order passed thereunder, a particular remedy to be sought in a particular forum and in that manner, and all other forums and modes of seeking it are excluded. Judged in the light of this principle, it is clear that the -civil court's jurisdiction to set aside the settlement made under Section 6 of the Act is excluded. The decision of the competent authorities being final subject to appeal or revision provided in the statute, it cannot be questioned in the civil court.

Legal position is well settled that even if jurisdiction is excluded, it is always open to the civil courts which are courts of general jurisdiction to consider and decide whether the statutory Tribunal has acted within the ambit of the powers conferred upon it by the statute to which it owes its existence or the provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure or it has transgressed the limits placed on its powers by the legislature. The civil court would interfere if it finds that the order of the statutory Tribunal is unfair, capricious or arbitrary.

20. The question about the exclusion of the jurisdiction of the civil courts to entertain a suit by virtue of the specific provisions contained in Orissa Act 10 of 1963 has been examined in a Full Bench decision of this Court in the case of Mangulu Jal v. Bhagaban Rai ILR (1975) Cut 789 : (AIR 1975 Orissa 219) to which one of us (P.K. Mohanti, J.) was a party. In that case some Bhogra lands were settled by the Collector after abolition of the village offices by a Press Note-which had been issued prior to the enactment of Orissa Act 10 of 1963. The trial court set aside the settlement made in favour of the defendants and granted a decree for declaration of title and recovery of possession in favour of the plaintiff. The appeal preferred by the defendants proved abortive. During the pendency of the second appeal Orissa Act 10 of 1963 came into force. Construing the provisions of the Act, the Full Bench held as follows :

'.............. The Act provides a complete machinery for determination of rival claims and when revision and appeal have been provided to the High Court subject to which the decision of the Board of Revenue will be final, it will be fantastic to contend that the Civil Court has jurisdiction to try those disputes. Ouster of jurisdiction of the Civil Court is clearly implied,................'

It was further held :

'Settlements made under the Press Note before the Act came into force whether prior to the suit or during the pendency of the litigation would be governed by the provisions of the Press Note. Civil Court will have no jurisdiction to set aside such settlement except in the limited manner already pointed out.

Settlements made under the provisions of the Act during the pendency of alitigation would be governed by the provisions of the Act.'

21. In the present case, after the Act came into force, Gounti-raiyati lands were settled with the appellants and respondent No. 8 Dibakar Sahu. The decree for partition of those lands among all the parties virtually amounts to setting aside the settlement. By virtue of Section 3(g) of the Act the Gountia ceased to have the right to hold the Gounti-raiyati lands and after the lands were settled with the appellants and, respondent No. 8 under Section 6 of the Act, they acquired good title to the same. The settlement thus made cannot be questioned in civil court. It is not shown that the settlement was made without complying with the provisions of the Act or that the statutory Tribunal did not act in conformity, with the fundamental principles of judicial procedure. It is also not shown that the order of settlement made by the statutory Tribunal is unfair, capricious or arbitrary. We accordingly hold, that the civil court has no jurisdiction to entertain the suit for partition of the Gounti-raiyati lands.

22. The result, therefore, is that the appeal is allowed in part. The decree so far as it relates to the Schedule A-2 lands is without jurisdiction and we set aside the same. The decree for partition of the Schedule A-1 lands is maintained. In view of the partial success of the parties, we direct them to bear their own costs throughout.

D. Pathak, C.J.

I agree.

J.K. Mohanti, J.

I agree.


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