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Gopinath Jew Vs. Rahas Mohanty - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 354 of 1973
Judge
Reported inAIR1977Ori181; 43(1977)CLT476
ActsOrissa Land Reforms Act, 1960 - Sections 67
AppellantGopinath Jew
RespondentRahas Mohanty
Appellant AdvocateS. Misra, Adv. No. 2, ;S.K. Mohanti and ;B. Das, Advs.
Respondent AdvocateB. Pal and ;A. Mohanty, Advs.
Cases Referred(S. K. Bhattar v. Tahsildar
Excerpt:
.....extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time..........decision of the court below. the plaintiff-appellant lost its claim of possession over the suit lands in a proceeding under section 145, cr. p. c. against the defendant-respondent. so the plaintiff has filed this suit for declaration of its title to and recovery of possession of the suit lands.2. in this suit the plaintiff contends that the defendant is not a bhag tenant under the plaintiff in respect of the suit lands. the defendant's father was a bhag tenant of the said lands till his death, but after his death the plaintiff took possession of the suit lands. the defendant has no right to succeed to the aforesaid interest of his father in the suit lands and so he cannot claim possession of the suit lands on that basis.3. the defendant claims that as per the nayagarh tenancy.....
Judgment:

S. Acharya, J.

1. The plaintiff, adeity, has preferred this appeal through its alleged trustee against the reversing decision of the court below. The plaintiff-appellant lost its claim of possession over the suit lands in a proceeding under Section 145, Cr. P. C. against the defendant-respondent. So the plaintiff has filed this suit for declaration of its title to and recovery of possession of the suit lands.

2. In this suit the plaintiff contends that the defendant is not a Bhag tenant under the plaintiff in respect of the suit lands. The defendant's father was a Bhag tenant of the said lands till his death, but after his death the plaintiff took possession of the suit lands. The defendant has no right to succeed to the aforesaid interest of his father in the suit lands and so he cannot claim possession of the suit lands on that basis.

3. The defendant claims that as per the Nayagarh Tenancy Law, his father was the occupancy tenant in respect of the suit lands, and as that right is heritable the defendant is continuing in possession of the suit lands on that right.

4. The trial Court decreed the suit and the appellate court dismissed the suit. The lower appellate court, apart from other grounds, has also held that the suit is not maintainable in the Civil Court as per Section 67 of the Orissa Land Reforms Act.

5. In this appeal at the outset it is contended by Mr. Pal, the learned counsel for the respondent, that the suit is not maintainable in view of the recent decision of this Court reported in AIR 1976 Ori 103 : ILR (1975) Cut 1526 (S. K. Bhattar v. Tahsildar, Basta) directly covering the point in question. In the said decision, the word 'entertain' occurring in Section 67 of the Orissa Land Reforms Act has received wider meaning, and it has been observed:--

'The expression 'to entertain any suit' in Section 67 would be to receive and to deal with or to admit it to consideration, and the process of entertaining would continue until the suit is finally determined. The net resuit would be that the Court of the Sub-Judge would lose the further jurisdiction to decide the question of existence of relationship of landlord and tenant between the petitioners and the opposite parties after coming into force of the President's Act 17 of 1973.'

Apart from that, Section 67 has also been amended in the meantime by Act 44 of 1976, and the word 'entertain' in the unamended section has been substituted by the words 'try and decide.' So, the Civil Court shall have no jurisdiction even to try and decide such a suit. This appeal being a continuation of the suit, the main disputed claims in the suit about the nature and right of tenancy and relationship of landlord and tenant between the contesting parties, as specifically raised by the parties, cannot be adjudicated in this appeal in view of the provisions of Section 12, Section 4 (a), Section 15 (1) (d) and Section 67 of the Orissa Land Reforms Act.

Hence the judgments of both the courts below have to be and hereby set aside as being without jurisdiction. The second appeal is disposed of accordingly. The parties may seek their remedies, if any, according to law in the proper forum. In view of the fact that the judgments of the two courts below are being set aside in their entirety on the above ground, parties will bear their own costs throughout.


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