P.K. Mohanti, J.
1. This appeal is directed against a decree declaring the plaintiffs' occupancy right to the suit lands and confirming their possession over came. The question of law that arises for consideration is whether a bhagchasi is a tenant under the Orissa Tenancy Act, 1913:
In the first instance, the appeal came up before a Division Bench to which one of us (P.K. Mohanti, J.) was a party. The Division Bench felt it desirable to place the appeal before a larger Bench in view of the conflict between the judgments of two different Division Benches of this Court regarding the status of a bhagchasi. That is how the entire appeal has been placed before us for disposal.
2. The suit lands measuring 5.70 acres as described in Schedule B of the plaint appertained to Anabadi Khata No. 192 under Tauzi No. 2390 in mauza San Bhubanpur. Defendant No. 1 Maheswar Dobai, Krushna Chandra Dobai, the father of defendants 2 and 3 and Mayadhar Dobai, the father of defendants 4 to 6 were the co-sharer landlords of the tauzi having one-third share therein. They granted leases of the suit lands from time to time for cultivation purposes to late Pravakar Biswal, the father of the plaintiffs. He was in continuous possession from 17-4-1946 till his death which occurred on 4-12-1964. The tauzi vested in the State Government on 1-4-1054. While Pravakar was in possession as a bhagehasi, defendants 1 to 3 and Mayadhar, the father of defendants 4 to 6 wanted to evict him forcibly for which he filed to O. T. P. Case No. 28 of 1950 for protection against eviction. The Sub-divisional Officer of Jaipur allowed the case holding that Pravakar Biswal was a bhagtenant under the landlords and that he was entitled to protection against eviction under Section 7 (6) of the O. T. P. Act.
After abolition of the estate, defendants 7 and 8 filed an application under Section 8 (1) of the Orissa Estates Abolition Act for a declaration of their occupancy right on the basis of a registered permanent lease deed dated 2-2-1944--Ext. D executed, in their favour by the ex-landlords. The Tahasildar of Jaipur rejected the application holding that Ext. D was a colourable transaction and had not been acted upon. Aggrieved by this decision, defendants 7 and 8 preferred Orissa Estates Abolition Appeal No. 83/65 before the Additional District Magistrate, Cuttack who set aside the decision of the Tahasildar and recognised the tenancy of defendants 7 and 8 vide his order daied 2-2-1966 Ext. F. Thereafter the plaintiff filed the suit on 23-10-1967 for declaration of their occupancy right and confirmation of possession in order to remove the cloud thrown on their titie by the aforesaid order--Ext. F.
3. Defendants 1 to 5 did not contest the suit. The pleader guardian for the minor defendant No. 6 filed a formal written statement denying the plaint allegations and putting the plaintiffs to strict proof of their case.
4. The stand taken by defendants 7 and 8 was that the suit lands were leased out to them by a registered permanent lease deed dated 2-2-44--Ext. D by the ex-landlords and possession was duly delivered to them and they have been in actual physical possession since the date of the lease on payment of rent. They claimed to have acquired occupancy right in the suit land,
5. Defendant No. 9, the State of Orissa filed written statement admitting the status of pravakar as a bhagtenant and his continuous possession over the lands as a lessee during his lifetime. It also admitted that after the death of Pravakar, the plaintiffs have been to possession and contended that defendants 7 and 8 were never in possession. It however pleaded that the suit was liable to be dismissed in view of the decision of the Additional District Magistrate as per Ext. F.
6. Defendants 16 to 14 who are purchasers of the suit lands from defendants 7 and 8 contended that their vendors were all along in possession since the date of the lease deed--Ext. D and they have acquired good title to the suit lands by virtue of the sale deeds dated 22-9-1967 (Ext. E series) executed in their favour by defendants 7 and 8.
7. The trial court, on a consideration of the evidence led by the parties, decreed the Mat on the following findings:
(i) Pravakar was a tenant under the exproprietors till the date of vesting and thereafter under the State Government, till his death.
(ii) Defendants 7 and 8 were never in possession of the suit lands.
(iii) Pravakar being in continuous possession as a raiyat for more than twelve years automatically became an occupancy raiyat under Section 23 (1) O. T. Act.
(iv) The order dated 2-2-1966 (Ext. F) passed by the Additional District Magistrate, Cuttack in O. E. A. Appeal No. 83/65 is without jurisdiction and void.
The aforesaid findings stand final and conclusive against the State Government as no appeal has been preferred by it.
8. The appeal has been preferred by defendants 7, 8 and 10 to 14. Defendant 14 Bhagaban Biswal having died during the pendency of the appeal, his legal representatives were substituted as per order No. 18. dated 3-12-1976.
9. The most vital questions for consideration are:
(i) Whether Pravakar was bhagchasi under the ex-proprietors in respect of the suit lands;
(ii) Whether fee continued in possession from 17-4-1946 till his death on 4-12-1964; and,
(iii) Whether the plaintiffs were in possession after the death of their father till the date of the suit.
10. The plaintiffs have relied upon the bhagpatta (Ext. 9) executed by Maheswar Dobai and Sridhar Dobai on 17-4-1946 for a period of two years on condition that Pravakar would pay Rs. 560/-as price of bhagapaddy. Execution of this bhagapatta is proved by P. W. 3 who stated that out of the amount of Rupees 500/- a sum of Rs. 50/- was paid by Pravakar in his presence at the time of execution. The Plaintiffs have also relied on another bhagpatta dated 11-4-1948. (Ext. 7) executed by Mayadhar Dobai in favour of Pravakax for a period of two years. This bhagpatta has been proved by P. W. 1. P. Ws 1 to 5 are the neighbouring tenants of the suit lands and P. W. 6 is the plaintiff No. 1. The evidence of these witnesses reveals that Pravakar reclaimed the suit lands and possessed the same as a tenant till his death and thereafter the plaintiffs continued in possession till the date of the suit.
11. The oral evidence of the P. Ws. gains ample corroboration from the documentary evidence on the record. It appears that there was an attempt by the ex-proprietors to evict Pravakar after expiry of the period of lease under Ext. 7. Pravakar filed am application for protection from eviction under the Orissa Tenants Protection Act in O. T. P. Case No. 28 of 1950. Defendants 1 to 6, 7 and 8 were impleaded as parties to the ease. The learned Sub-divisional Officer allowed the application and directed defendants 1 to 8 not to interfere with the possession of Pravakar on the findings that he was a bhagtenant under the ex-proprietors; that defendants 7 and 3 were not in possession and that the lease deed (Ext. D) relied upon by defendants 7 and 8 was a colourable transaction vide order dated 23-5-1953 (Ext 1). An appeal preferred against this decision was dismissed by the Additional District Magistrate and, Collector vide order dated 31-8-1954 (Ext. 2) passed in O. T. P. Appeal No. 71/53-54. The aforesaid orders Exts. 1 and 2 constitute res judicata against the defence plea that Pravakar was not a bhagatenant and defendants 7 and a were ia khas possession. According to Explanation VIII to Section 11 of me Civil P. C. an issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such, issue has been subsequently raised.
It also appears that defendants 7 and 8 filed an application, under Saetion 79 at the Orissa Tenancy Act against Pravakar for appraisement of crops. It was registered as O. T. Case No. 24 of 1961-62. The application was resisted by Pravakar on the ground that defendants 7 and 8 were not his landlords. The application was dismissed by the Rent Suit Officer by order dated 14-3-1962 (Ext. 3) Evidently defendants 7 and 8 admitted that Pravakar was in possession of the suit lands and had raised crops thereow during the years 1961-62.
It further appears that defendants 7 and 8 filed Rent Suit No. 13 of 1962-65 against Pravakar for recovery of bhagrent. Pravakar challenged the locus standi of defendants 7 and 8. By order dated 18-1-1963 (Ext 4) the Rent Suit Officer dismissed the suit holding that defendants 7 and 8 were not tbe landlords of Pravakar.
Thus, the documentary evidence clearly supports the plaintiffs' case that Pravakar was in possession of the suit lands as a tenant from 1946 till his death in 1964.
12. After abolition of the estate, defendants 7 and 8 filed an application under Section 8 (1) of the Orissa Estates Abolition Act for being recognised as tenants in respect of the suit lands on the basis of the lease deed Ext. D. The application was registered as Misc. Case No. 31 of 1961-62. It was resisted by Pravakar Biswal who claimed to be in possession as a tenant. The Tahasildar of Jaipur rejected the application on 27-9-1965. Aggrieved by this decision, defendants 7 and 8 preferred O. E. A. Appeal No. 83/65 before the Additional District Magistrate of Cuttack who by his order dated 2-2-1966 (Ext F) set aside the order of the Tahasildar and allowed the appeal accepting the tenancy of defendants 7 and 8. Being emboldened by this decision the defendants 7 and, 8 transferred the suit lands in favour of defendants 10 to 14 by registered sale deed dated 22-9-1967 (Ext. E Series).
Section 8 (1) of the Orissa Estates Abolition Act makes no provision for an application. No enquiry is contemplated under this section. The section is merely declaratory of the continuity of the tenure of tenants as it was immediately before the date of vesting. As no application was entertainable for determining rival claims under Section 8 (1) the Tahasildar had rightly dismissed the same. But although there is no provision for an appeal against any order passed under Section 8 (1), the learned Additional District Magistrate entertained the appeal and recognised defendants 7 and 8 as tenants in respect of the suit lands. Apparently, the learned Additional District Magistrate exercised a jurisdiction not vested in him. His order as per Ext. F is therefore, without jurisdiction and void.
13. In order to prove their title and possession defendants 7 and 8 relied on the lease deed Ext. D, the rent receipts dated 2-10-1966, 23-10-1966 and 7-3-1967 (Exts b, B/ and C) and the oral evidence of the D. Ws. It is to be noted that defendants 7 and 8 are none else but the relations of the exproprietors. Defendant No. 7 is the mother of defendant 4 and 5. Defendant No. 8 is the wife of defendant No. 1. Not a single rent receipt for the period from the date of the alleged lease, i.e., 2-2-44 till 2-10-1966 has been produced. The rent appears to have been paid under Exts. B, B/1 and C on the strength of the order in Ext. F which, as already stated, was without jurisdiction and void.
It is important to note that in para 19 of their written statement defendants 7 and 8 admitted that having failed to cultivate the suit lands in khas they let out the same to defendants 10 to 14, obviously after the order in Ext. F was passed in their favour. The oral evidence adduced by the defendants on the question of possession is far from satisfactory. D. W. 1 who is defendant No. 10 in the suit stated in para 4 of his cross-examination that defendants 7 and 8 took khas possession of the suit lands in 1966 and prior to that the lands were the subject-matter of litigation. The trial court has elaborately discussed the evidence of the D. W.s in para 10 of its judgment and has disbelieved the same on cogent grounds. We see no reason to differ from the findings of the trial court on the question of possession. In the facts and circumstances as discussed above, we have no hesitation to hold that the lease deed Ext. D was never acted upon.
14. The State Government (defendant No. 9) admitted in clear terms that; the suit lands were leased out to Pravakar Biswal by the ex-proprietors for agriculture purpose; that Pravakar Biswal was cultivating the lands long prior, to 1946 and that he was in continuous possession of the lands as a lessee during his lifetime and that after his death his legal heirs came into possession of the lands.
15. In view of the unimpeachable evidence produced on the side of the plaintiffs and the admissions made by defendants 7, 8 and 9 as aforesaid, we have least hesitation to hold that Pravakar Biswal was in continuous possession of the suit lands as a bhagchasi under the exproprietors from 17-4-1946 till 1-4-1954 when the estate vested in the State Government and even thereafter he continued in possession under the State Government in his own rights from the date of vesting till his death on 4-12-1964. On Pravakar's death the plaintiffs continued in possession under the State till 23-10-1967 when the suit was instituted.
16. The next question that arises for consideration is as to the status of Pravakar as a bhagchasi under the ex-proprietors from 14-7-1946 till the date of vesting on 1-4-1954. Bhagchasis are persons who cultivate lands rendering a share of the produce to the landlord.
Whether a bhagchasi is a tenant or not depends on the particular facts and circumstances of each case. In determining the question whether a bhagchasi is a servant or a tenant, the terms of the agreement and the whole circumstances must be looked into before deciding the point. Under Section 3 (23) of the Orissa Tenancy Act 'tenant' has been defined to mean a person who holds land under another person and is, or but for a special contract would be, liable to pay rent for that land to that person.
In order to acquire the status of a tenant, two conditions must be satisfied. First, a person must be holding land under another person. Secondly, he is, or but for a special contract would be, liable to pay rent for the land. 'Rent' means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use and occupation of the land held by him. There can be no doubt that as per the terms of Exts. 7 and 9 Pravakar held the land under the ex-proprietors and was liable to pay the price of bhag produce to them. In AIR 1970 SC 1880 Budhan Singh v. Babi Bux, the meaning of the expression 'held' in Section 9 of the U. P. Zamindari Abolition and Land Reforms Act came up for consideration. Their Lordships interpreted the expression as meaning 'as lawfully held'. In AIR 1972 SC 486, Chandra Sekhar Singh Bhoi v. State of Orissa their Lordships dealt with the nature of the rights of a bhagchasi thus (Para 22):
'22. It is quite clear that under the tenure known as Bhagchasi, the cultivator shares his crop with the owner. So, when he grows the crop he grows it in his own right and not on behalf of any person. Therefore, it is difficult to hold a crop-sharer cultivates on behalf of the landlord.'
A bhagchasi cultivates or possesses land lawfully and, not as a trespasser. Thus, he has an interest in the land for the period of the lease. In the present case Pravakar held the lands lawfully and was liable to pay rent. We are clearly of opinion that the contract as per Exts. 7 and 9 was one of letting out land by a landlord to a tenant. There is nothing to show that Pravakar cultivated the land as a labourer or a servant.
17. That a bhagchasi can be tenant under Section 3 (23) of the O. T. Act has been elaborately discussed in a bench decision of this Court reported in (1975) 41 Cut LT 987, Madhusudan Subudhi v. Doma Swain. In that case the dispute was between an occupancy raiyat and his bhagchasi who had been recorded as a sikimi tenant. The Court held that the bhagchasi was an under-raiyat on account of the fact that he was holding land under a raiyat. In the present case, Pravakar being a tenant Immediately under the ex-proprietors, he was a raiyat within the meaning of Section 5 (2) and (3) of the O. T. Act,
18. There is no real conflict in the earlier decisions of this Court bearing upon the question of status of a bhagchasi. In (1972) 1 Cut WR 381: State of Orissa v. Narendra Kumar Routray, the land was given to the defendant by the Collector for cultivation for a limited period under special terms. The purpose was to keep the land in a good sanitary condition so that it may not provide a breeding ground of mosquitoes and other insects. There was really no intention to create a lease for cultivation purpose. No relationship of landlord and tenant was created. It was clearly stipulated that if there was breach of the particular condition there would be a summary resumption. These features enabled the court to pronounce on the status of the bhagchasi as that of a licensee. The Court held that the defendant was not a tenant within the meaning of Secion 3 (23) of the Orissa Tenancy Act as no lease had been created in his favour, but he had obtained the right of a licensee to be in possession to raise crops under certain special terms not common to agricultural leases.
Their Lordships, however made an observation that 'a tenant under the Orissa Tenancy Act is person who has an abiding interest in the property and is certainly not one who can be thrown out as a tenant-at-will' to which exception has been taken. 'Abiding', according to the Chambers Twentieth Century Dictionary, means 'continual, permanent'. Tenancy-at-will means one which is terminable on notice to quit. In our opinion, a tenant under the O. T. Act need not always have an abiding interest in the land. An illustration will make the position clear. According to Section 4 of the O. T. Act, an under-raiyat is one of the classes of tenants. Section 57 divides under-raiyats into two categories, namely, (1) those who hold under a written lease for a term and, (2) those who hold otherwise than under a written lease, According to this section, the former are liable to be ejected on the expiration of the term, while the latter are to be ejected by a notice of six months before the end of the year. Thus, an under-raiyat has no abiding interest in the land. He is a tenant-at-will in the sense that he can be evicted from the land on fulfilment of the conditions prescribed in Section 57, O. T, Act. But under Section 4 (3), O. T. Act an under-raiyat has been treated as one of the classes of tenants. We accordingly hold that though the case in (1972) 1 Cut WR 38l referred to above was correctly decided on its own facts yet the observation made therein to the effect that 'a tenant under the Orissa Tenancy Act is a person having an abiding interest in the land and is certainly not a tenant-al-will' is contrary to law. The observation is also inconsistent with the principles laid down in AIR 1970 SC 1880 and AIR 1972 SC 486 referred to above. With respect, we are unable to agree to the aforesaid observation.
In the case of Jagannath Brahmachari v. Jogi Sahu (1960) 26 Cut LT 437, the suit xvas for declaration of title and confirmation of possession. The plea taken by the defendants was that they were the settled raiyats of the village and they had acquired occupancy right in respect of the suit lands. They had also taken the plea that the civil court had no jurisdiction to try the suit in accordance with provisions of the Orissa Tenants Protection Act, 1947. The trial court decreed the suit holding that the defendants were mere trespassers and that there was no relationship of landlord and tenant between the parties. The appellate court without deciding the merits of the case allowed the appeal on the simple ground that the civil court had no jurisdiction to entertain the suit, The real controversy in the litigation was whether the defendants were mere trespassers or occupancy raiyats. In second appeal, a Division Bench of this Court held that the jurisdiction of the ordinary courts of law for determination of such a question is not ousted under the provisions of the O. T. P. Act. While referring to the object behind the enactment of the O. T. P. Act, the Court observed:
''xxx. This Act manifestly is not intended for the tenants who have abiding or permanent interests under ordinary laws of the country, that is, under the Orissa Tenancy Act itself..........'
The question whether a bhagchasi was a tenant under Section 3 (23) of the Orissa Tenancy Act did not arise for consideration in that case,
19. In (1966) 32 Cut LT 303 Shyamahari Mohanty v. Gadadharnath Sharma, the dispute was not between the landlord and the tenant but between two rival tenants each claiming exclusively tenancy right in the suit lands. The plaintiff who was a settled raiyat of the village was found to be in possession of the suit land from 1935-36 to 1957-58 on payment of rent. The trial court held that the plaintiff was a raiyat of the lands in suit during the time he was in possession thereof and as such by virtue of Section 24 of the Orissa Tenancy Act acquired, occupancy right therein. But the first appellate court reversed this finding and came to the conclusion that the plaintiff during the time he was in possession of the land in suit was only a bhag-tenant and not a raiyat as defined in Section 5 of the Orissa Tenancy Act and therefore he never acquired any occupancy right as contemplated by Section 24 of the Orissa Tenancy Act. According to the first appellate court the plaintiff though a tenant was not one as defined in Section 3 (23) but only a bhagtenant as contemplated by Section 2 (j) of the Orissa Tenants Relief Act, 1955. In Second Appeal, this Court held, that as the dispute was between two rivals each claiming to be the exclusive tenant of the suit lands, such a case was to be governed and decided in accordance with the definition of the word 'tenant' as provided in Section 3(23) of the Orissa Tenancy Act. It was also held that the list of classes of tenants as given in Section 4 of the Orissa Tenancy Act is exhaustive and that once a person is held to be a tenant as defined in Section 3(23) of the Orissa Tenancy Act, 1913 he has to fall in one or the other of the classes enumerated in Section 4 of that Act. The court observed.
'xxx. It is true that there is a definition provided for the word 'raiyat' in Sub-section (2) of Section 5 of the Orissa Tenancy Act, 1913, but that definition is meant only to provide a distinction between a raiyat on one side and a tenure-holder on the other as is dear from the discussions made in Hari Mohan Mandal Sarkar T. Gour Mohan Sarkar (1929) ILR 56 Cal 1164 : (AIR 1930 Cal 253).........'
It was accordingly held that the plaintiff, if he is a tenant, has to be taken as a raiyat in view of the finding given by the lower appellate court that he was neither a tenure-holder nor a raiyat nor even a chandnadar and, in view of his long possession of the lands in suit up to the year 1967 or 1958 he was entitled to have the advantage of getting the benefit of Section 24 as a settled raiyat of the village.
In AIR 1951 Orissa 153 (SB), Abdul Hamid v. Bora Tataya, the Court held:
'xxxxxx the expression 'tenant' as defined in Section 3(23), O. T. Act is more comprehensive than the expression 'classes of tenants' which classes have been enumerated in Section 4, O. T. Act. For instance, it may include a 'bhagchasi' of the 'nijchas' or 'nijjot' lands of a proprietor xxxxxxxx.'
We are in respectful agreement with the view taken in the above decisions.
20. In view of our above discussions, we hold, that Pravakar was a tenant as defined in Section 3(23) of the O. T. Act by the date of vesting on 1-4-54 and as a tenant he would fall within the class of non-occupancy raiyats.
Under Section 8(1) of the O. E. A. Act any person who immediately before the date of the vesting of an estate in the State Government was in possession of any holding as a tenant under an intermediary shall, on and from the date of vesting be deemed to be a tenant of the State Government and such person shall hold the land in the same rights and subject to the same restrictions and liabilities as he was entitled or subject to immediately before the date of vesting. Thus, on and with effect from 1-4-1954, Pravakar became a non-occupancy raiyat under the State Government. He continued in possession of the lands as before under the State Government until his death on 4-12-54. As a raiyat he was in continuous possession for a period of twelve years from 17-4-46 to 17-4-58. Thus, he became a settled raiyat under Section 23 of the O. T. Act and, by virtue of the status, he acquired occupancy right.
21. Even otherwise he acquired occupancy right by virtue of Section 234, O. T. Act. Land with which we are concerned is chur land. Section 234 provides that a raiyat shall not acquire a right of occupancy in chur land until he has held the land in question for twelve continuous years. According to Sub-section (2) of this section, Chapter VI dealing with the non-occupancy raiyats is made non-applicable to utbandi lands and not to chur lands. It follows, therefore, that Chapter VI is applicable to the case of chur lands. In the present case Pravakar held the chur lands prior to the vesting. His right to continue possession of the lands as a non-occupancy raiyat under the State Government was maintained under Section 8 (1), O. E. A. Act being in continuous possession as a raiyat for 12 years he acquired occupancy right by virtue of Section 234 (1) (b) of the O. T. Act.
22. In the ultimate analysis, our conclusions are as follows:
(i) As a bhagchasi under the ex-proprietors Pravakar was a tenant as defined in Section 2(23), O. T. Act.
(ii) As a tenant, he fell within the class of non-occupancy raiyats as contemplated under Section 4, O. T. Act.
(iii) Being in continuous possession as a raiyat for twelve years he acquired the status of an occupancy raiyat.
23. The right of occupancy being heritable, the plaintiffs who are the legal heirs of late Pravakar Biswal inherited the same by virtue of Section 30 of the O. T. Act. The trial court was, therefore, justified in declaring their occupancy right in the suit lands.
24. There is no merit in this appeal and is accordingly dismissed with costs.
D. Pathak, C.J.
J.K. Mohanty, J.