1. The suit out of which this second appeal arises was filed by the plaintiffs respondents against the defendants appellants for declaration of right, title and interest and confirmation of possession, alternatively for recovery of the plaint scheduled lands. The trial Court decreed the suit in part in respect of Ga and Gha Schedule lands measuring 75 decimals and 82 decimals respectively and their possession was confirmed in respect of the same. In respect of Ka, Kha, Gha and Una schedule lands (which form the subject matter of this second appeal) the trial court declared that the plaintiffs have got no exclusive right over the same. As against the said decision of the trial Court the plaintiffs filed an appeal. The learner lower appellate Court allowed the plaintiffs' appeal and declared the plaintiffs' alleged right over the disputed Ka, Kha, Gha, and Una schedule lands and confirmed the plaintiffs' possession in respect thereof. Hence this second appeal.
2. A genealogical table showing the relationship of the parties is set out as follows:
(died in 1925)
| | |
Khageswar Ramkrishna Janardan
P.1 (died 1949)
=Dalimba = Hema D.3
3. The lands in dispute in this second appeal are Ka, Kha, Gha and Una schedule lands in originally protected thikadari villages Khemidikhar and Halkadadar, Arjun Naik (deceased) acquired Sir and Khudakast lands in these villages and possessed the save in his own right. He was also ordinary thikadar in respect of another village Kendumunda. In 1925 Arjun died. After his death his eldest son plaintiff Khageswar was appointed protected thikadar and he enjoyed the Sir lands in the said two villages.
After the death of Arjun his three sons are said to have amicably partitioned the lands in village Kendumunda (of which Arjun was an ordinary thikadar). As Plaintiff Khageswar was protected thikadar in respect of the other two villages, his brothers did not get any share in we said two villages under the partition, and consequently plaintiff Khageswar enjoyed the disputed lands exclusively.
In 1933 plaintiff Khageswar filed a partition suit R. S. 25 of 1933 in the Court of the Subordinate Judge, Sambalpur and the properties of the parties were divided. Khageswar's brother did not get any share from the Sir lands of Khemidikhar and Halkadadar villages as lands in those villages were not liable for partition. Khageswar's brothers got share from the other village Kendumunaa. The Khudakast lands which formed part of the suit lands fell to the share of Khageswar. It is said that thereafter the other two disappointed brothers left the village. Plaintiff Khageswar possessed their shares along with his own share. In 1946, defendant No. 1 Janardan returned ana created disturbance over plaintiff Khageswar's possession of the disputed lands with the consequence that there were certain criminal proceedings.
In the meantime in 1949 the second brother Kamkrishna died and after his death his son and widow (defendants 2 and 3} came and joined defendant Janardan. Tne gentlemen of the village intervened in their dispute in tne family, and a compromise was effected among them unaer which plaintiff Khageshwar gave possession to the defendants of their shares of the lands. A Kararnama was accordingly executed under which the defendants undertook not to create any disturbance over the disputed lands of the plaintiff Khageswar. Since thereafter the plaintiff Khageswar had been possessing the suit lands along with the other lands peacefully until June 20, 1956 when the defendants created disturbance over possession of the plaintiff Khageswar and had forcibly sown paddy over a portion of the disputed lands. On August 6, 1956 the present suit was filed by the plaintiff Khageswar and his wife plaintiff No. 2 Hema to whom Khageswar had sola certain portion of the disputed lands.
4. The defence to the suit was this: The disputed lands were the ancestral properties of the parties. Though the plaintiff Khageswar was appointed thikadar, Khageswar's two brothers possessed the Sir lands along with him. There was no partition among the brothers in respect of the disputed lands. The two brothers had got right over the disputed lands. The defendants had been possessing the disputed lands along with plaintiff Khageswar, as the protected thikadari villages were not liable to partition. The disputed lands are still joint, it was only the lands of the third village Kendumunda which were partitioned among the brothers.
The disputed lands in villages Khemedikhar and Haikadadar were not included in the previous partition suit. The two brothers never relinquished their right to the Sir lands. In the partition suit no delivery of possession was given to the plaintiff Khageswar in respect of his share. It is said that defendant No, 1 Janardan never executed in favour of plaintiff Khageswar any Kararnama for sale on behalf of the defendants 2 and 3. The disputed lands are the ancestral joint family properties of the parties.
5. On these pleadings certain issues were raised including issues as to whether the disputed Ka and Una schedule lands exclusively belong to the plaintitf Khageswar; whether the protected thikadar has get exclusive right over the Sir lands, and whether Khageswar is entitled to evict the defendants from the same. The trial Court, while deciding the suit in favour of the defendants so far as the disputed lands are concerned, held that the disputed lands Ka and Kha schedule lands and other Sir lands as per Gha and Una schedules are not the, exclusive properties of plaintiff Khageswar and that he has got no exclusive right over the same.
In appeal, the learned lower appellate Court reversed this finding and decreed the suit in favour of the plaintiffs in respect of the said disputed lands. The learned lower appellate Court came to the above finding mainly on the ground that the defence claim over the disputed Sir lands was barred by res judicata in view of the decision in the previous partition suit T.S. 25 of 1933, and further that the two brothers Ramkrishna and Janardan having been out of possession of the disputed lands the plaintiffs acquired their right over the same by adverse possession.
6. This case has to be decided in the context or the subsequent change in law, namely, a Government Notification dated March 30, 1960 the effect of which is that the protection so long enjoyed by a holder of thikadari village has now been removed. The Government Notification reads thus:
'Government of Orissa.
Dated 30th March, 1960.
No. 15191-EA.-1/12/60 R--In exercise of the powers conferred by Sub-section (1) of Section 3-A of the Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952), the State Government do hereby declare that the intermediary interests of the holders of Thikadari and Maufidari villages in the Sadar and Bargarh Sub-Divisions of the district of Sambalpur have passed to and become vested in the State free from all encumbrances.'
It is well settled that while disposing of an appeal a Court may take into consideration the change in law brought about by the Legislature. A Division Bench of this Court in Silla Narasimhalu v. Konchanda Rama Murthy Subudhi, ILR (1961) Cut. 513 at p. 518 followed and reiterated the view that in moulding the relief to be granted in a case on appeal, the Court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against. Keeping in view this legal position, we have to take into consideration the said Government Notification which has done away with the protected thikadari right which has passed to ana became vested in the State of Orissa as aforesaid. The effect of the Notification is that the protected thikadar interest is gone, the suit lands have become joint family property.
7. On the question of res judicata, the previous Title Suit No. 25 of 1933 was a suit filed by Khageswar against his brothers for partition. In the said partition suit, Khageswar's case was that the sixteen annas protected Mukadami right of Khemidikhar and Halkadadar villages with Sir lands and houses appertaining to them have not been brought into the hotchpot for partition as under Section 65A of the Central Provinces Land Revenue Act, Khageswar is tne only heir entitled to the exclusive possession thereof. These lands including the disputed lands in the present suit were not included in the list of properties sougnl to be partitioned In the previous partition suit.
The defence in the partition suit was that Knageswar alone was not entitled to exclusive possession of tne said Khemidikhar and Halkadadar villages. In the partition suit it was never questioned that the joint family properties were not liable for partition. The plaintiff's contention on res judicata is this : Title suit No. 25 of 1933 was a suit for partition filed by the plaintiff Khageswar against his brothers. The defence taken therein was that the thikadari rights in the said two villages Khemedikhar and Halkadadar were also liable to be partitioned. The trial Court in the said Title suit No. 25 of 1933 held that the defendants (Khageswar's brothers) failed to prove that tney can get a share in the protected thikadari villages Khemidikhar and Halkadadar or even maintenance out of their income. The plaintiffs' point is that this decision operates as res judicata.
The argument, however, overlooks the position that the decision of the Court in T. S. No. 25 of 1933 was in the context and having regard to Section 65-A(4) of the Central Provinces Land Revenue Act (Act XVIII of 1881) which for convenience of reference is quoted as follows :
65-A(4). The incidents of the tenure of a thikadar (including a farmer or gountia) who has been declared to be protected under this Section shall bo as follows:
(a) the tenure shall be heritable, but not transferable by sale, gift, mortgage or dower; it shall not be saleable in execution of any decree, nor shall any decree be passed for the sale thereof; and, save in so far as any arrangements to the contrary are in force at the time of declaration, it shall not be partitioned and shall devolve on one member only of the Thikadar's family.'
Now by virtue of the said Government Notification dated March 30, 1960 the effect of Section 65-A is gone. That is to say, the protected tenure is no more, and the disputed lands have become joint family property, in other words, by reason of the Notification the protected tenure has changed its character and has reverted to the position of joint family property. It is thus clear that tne scope of the present suit is widely different from tnat of the previous Title Suit No. 25 of 1933, and therefore there is no substance in the plaintiff's contention that tne decision in the previous suit operates herein as res judicata.
8. The plaintiff Khageswar then contends that tne disputed lands cannot be joint family property and the defendants can have no right therein. In support of his stand, Khageswar relies on the undisputed position of Hindu common law that there is no presumption that a family because it is joint possesses joint property or any property, that the burden of proving that the property is joint family property rests on the party asserting it. In my opinion, these contentions have no force in the face of the position that the plaintiff Khageswar got the disputed lands from his father Arjun as a protected thikadar; that the State of Orissa had given in respect of the lands preferential right under the law; it is not Khageswar's self-acquired property; the disputed lands having been acquired from the father of Arjun, the lands are impressed with joint family character; property inherited from father is ancestral property.
9. Moreover, the plaintiff Khageswar's stand overlooks the peculiar nature of the interests of a coparcenary in Sir lands governed by the Central Provinces Land Revenue Act. This Court in Tirtha Naik v. Lal Sadananda Singh, ILR (1949) 1 Cut 139 : (AIR 1952 Orissa 99) laid down nine principles applicable to cases of this nature of which 1st, 2nd, 3rd and 4th are relevant for our purpose. They are as follows:
'(i) That the thikadari leases, either permanent or temporary but renewed or renewable from time to time, are, like any other property, capable of being possessed by a co-parcenary :
(ii) That the joint family estate in such leases can grow either if they are acquired with the joint family funds, or with joint family labour or is allowed to be treated as joint family property by the acquirer:
(iii) The declaration of protected status does not effect any change in its character, so as to debar acquisition of joint family rights in it or to divert any preexisting or subsisting right in them enuring to the benefit of the members of the joint family;
(iv) Section 65-A in saving the pre-existing arrangements with regard to the Thikadary tenures, saves not only the partition of the tenure, if any, but also joint or separate enjoyment of the Sir and Bhogra lands appertaining to the tenure or any other emoluments arising therefrom.'
In the present case, it is clear from the evidence tnat the plaintiff Khageswar's father Arjun had treated the disputed lands as joint family property. D.W. 1 a Punch member of Halkadadar village said that during the life time of Arjun, his sons were possessing three villages Halkadadar, Khemidikhar and Kendumunda jointly. D. W. 2 a Punch member of the other village Khemidikhar said that Arjun was living jointly with his sons and they were enjoying the properties in the said three villages. This witness (D. W. 2) also supports the defence case on all material points. On this evidence the trial court found that tne disputed lands were treated as joint family property in Arjun's life time. This case thus directly comes under the 2nd principle laid down in ILR (1949) 1 Cut 139 : (AIR 1952 Orissa 99) cited above, namely, that the joint family estate in such lease can grow if it is allowed to be treated as joint family property by the acquirer. Thus, on facts, the plaintiff Khageswar's alleged claim, as exclusive owner of the disputed lands, is untenable.
10. In support of Khageswar's alleged claim as exclusive owner, he, in course of hearing of this second appeal, introduced certain documents by way of additional evidence which have been allowed and marked as exhibits. Ext. 51 is a certified copy of report dated October 17,1914 of Tahasildar, Bargarh with respect to village Khemidokhar recommending protection of Arjun under Section 65-A of the Central provinces Land Revenue Act on Arjun's application for a protected status certificate. Ext. 52 a report dated September 1, 1916 is a similar report giving protection to Arjun in respect of village Haikadadar. Ext. 53 is a declaration dated November 16, 1916 of protected status by Deputy Commissioner, Sambalpur, in respect of village Halkadadar. Ext. 54 is an application dated April, 1919 by Arjun for mutation in the name of plaintiff Khageswar with respect to all the lands in village Khemidikhar. These documents do not, however, advance the plaintiff's case that he is the exclusive owner as claimed. The defendants tendered by way of additional evidence, a certified copy of entry in the Register or mutation cases for the year 1919-20 maintained in the Court of Additional Tahasildar, Bargarh, (Ext. 9), showing that there were two applications by Arjun Naik on April 29, 1919 one for mutation of Khamidiktiar village in tne name of Khageswar and the other for mutation of Haikadadar village in the name of Ramkrishna (father of defendant No. 2) and that both the mutation cases were struck on. The documents further establish that Arjun enjoyed the protected status under Section 65-A during his life time. The result under Section 65-A was to prevent other members of his family from asserting their title to the property. In ether words, their rights, whatever they were, were dormant, ready to spring up into existence as soon as the protection was removed. On the removal of the protection in 1960 by the said Orissa Government Notification dated March 30, 1960, the dormant right of Arjun's other descendants (defendants) revived and sprang up into existence.
11. In this view of the case, the decision of the learned lower appellate Court is set aside, and the decision of the learned trial Court is restored. This appeal Is accordingly allowed with costs throughout.
12. I agree.