1. Defendant is the appellant against a confirming judgment. The relation of the parties would appear from the following genealogical tree.
| | |
Dolamani Budhu Shankar
(Plff-1) (Plff-2) (Plff-3)
Mahendra was the protected Thikadar of village Bhairapur in Barpalli Zamindari. After his death, Raghumani became the protected Thikadar and possessed all the SIR and KHUDKAST lands of the village. In a partition between Raghumani and the defendant the disputed property was allotted to their mother Kanchan towards her maintenance. The plaintiffs' case is that it was agreed that the disputed land would revert to Raghumani after the death of Kanchan. She died in 1952 and thereafter the lands reverted to plaintiff No. 1 who was the Thikadar after his father's death. The lands were subsequently partitioned amongst the plaintiffs who were possessing different portions in their individual right, title and interest. The defendant created disturbance in their possession and a proceeding under Section 145, Cr. P. C. was started. The preliminary order was passed on 13-11-1958 and the proceeding terminated in favour of the defendant on 3-8-1959. The suit was filed on 16-8-1959.
2. Defendant admits that the disputed lands were allotted to Kanchan in lieu of maintenance, but challenges the existence of an agreement whereunder the right of reversion vested exclusively in the protected Thikadar. The defendant's further plea was that Kanchan was unable to cultivate the lands and that he was cultivating the same on her behalf. On 22-8-1944 she executed an unregistered deed of gift in his (defendant's) favour and delivered possession of the disputed lands whereafter the defendant was in possession in his own right, title and interest and got himself mutated. The plaintiffs' suit was, according to him, barred by adverse possession.
3. Both the Courts below recorded the following concurrent findings :
(i) The disputed lands were allotted to Kunchan towards her maintenance.
(ii) Defendant was in possession of the disputed lands on behalf of Kanchan till her death in 1952.
(iii) Plaintiffs' case of right of reversion vesting exclusively in them is not true.
(iv) Defendant's story of gift is not true and the gift is not valid.
The learned Advocates for both the parties do not assail the aforesaid findings.
On the question of possession, the learned trial Court held that the evidence regarding possession led on both sides was very poor and no reliance could be placed on the witnesses as regards their testimony regarding possession of the respective parties. Defendant was possessing the suit lands till the death of Kanchan, on her behalf, and the suit having been filed within seven years of Kanchan's death none of the parties were in exclusive possession for more than 12 years in their right title and interest so as to acquire title by adverse possession. The learned Subordinate Judge did not record any clear finding on this aspect of the case.
4. On the finding that after the death of Kanchan the property reverted to both the brothers the learned trial Court decreed the plaintiffs' suit in respect of an undivided half. He declared the title of the plaintiffs to one half of the disputed properties and passed a decree that they were entitled to possess half share of the entire lands. The plaintiffs did not file any appeal against that portion of the decree which declared the title of the defendant in one half of the disputed lands and hence the trial Court's decree to that extent became final and conclusive and it is not the subject-matter of this second appeal. The defendant filed an appeal against the decree of the trial Court in favour of the plaintiffs and that appeal was dismissed. Against that appellate decree the defendant has filed this second Appeal.
5. The only contention advanced by Mr. R.N. Misra was that the disputed lands vested in the State of Orissa on 1-4-1960 and that the plaintiffs were not in khas possession of the lands and were therefore not entitled to a declaration of title or recovery of possession. In order to appreciate this contention certain relevant facts may be stated. This point was not canvassed in the trial Court as the vesting took place about eight months after the filing of the suit. . It is, however, not disputed that subsequent events affecting the rights of parties can be taken notice of at a later stage of the litigation. Apart from the fact that the trial Court recorded a clear finding that evidence of possession on either side was very poor, two other significant facts were not noticed by either of the Courts below. The proceeding under Section 145, Criminal P. C., terminated in favour of the defendant on 3-8-1959 declaring that the defendant was in exclusive possession of the disputed lands on the date of the preliminary order namely 13-11-1958 and that the plaintiffs were not in possession. In the plaint itself the plaintiffs made a prayer for recovery of possession. Paragraph 17 (a) of the plaint may be quoted :
'17. The plaintiffs, therefore, claim the following relief :
(a) The right or title of all or of any of the plaintiffs over the suit lands be declared and possession thereof be given to them after eviction of the defendant therefrom.'
The admitted position, therefore, is that from 13-11-1958 the defendant has been in exclusive possession of the disputed lands in his own right, title and interest, though title to the property vested both in the plaintiffs and the defendant, after the death of Kanchan. By the date of vesting, namely 1-4-1960, the position was that the title in the suit lands belonged to the plaintiffs and the defendant and the defendant was in exclusive possession of the lands in assertion of his right, title and interest exercising hostile animus against the plaintiffs who were admittedly his co-sharers. From 13-11-1958 (the date of passing the preliminary order in the proceeding under Section 145 Cr. P. C.) the plaintiffs were not entitled to advance any contention that actual, exclusive, physical possession of the defendant was on their behalf as a co-sharer.
6. On the aforesaid finding, the question for determination is whether the plaintiffs are entitled to a declaration of their title and recovery of possession in respect of half of the disputed lands. Under Section 5 (a) of the Orissa Estates Abolition Act (hereinafter referred to as the Act) the intermediary shall cease to have any interest in such estate other than the interest expressly saved by or under the provisions of the Act. Under Section 7 (1) (a) certain interests have been saved. It lays down :
'7(k) On and from the date of vesting-
(a) all lands used for agricultural or horticultural purposes which were in khas possession of the intermediary on the date of such vesting ......... shall, notwithstanding anything contained in this Act, be deemed to he settled by the State Government with such intermediary and with all the shareholders, owning the estate and such intermediary with all the share-holders, shall be entitled to retain possession thereof and hold them as raiyats in respect of such lands, subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner.'
Khas possession has been defined in Section 2(j) of the Act as follows.:
'2(j). 'Khas-possession' used with reference to the possession of an intermediary of any land used for agricultural or horticultural purposes, means the possession of such intermediary by cultivating such land or carrying on horticultural operations thereon himself, with his own stock or by his own servants or by hired labour or with hired stock.'
Within this meaning of the definition the defendant alone is in 'khas-possession' and not the plaintiffs though they are co-sharers. From the date of the passing of the preliminary : order the defendant was in exclusive possession, in his own right, title and interest exercising hostile animus against the interest of the plaintiffs. Despite this position, however, Section 7 (1) (a) can be fully invoked by the plaintiffs and they can legitimately claim that on and from the date of vesting the disputed lands admittedly used for agricultural purposes, shall be deemed to be settled by the State Government not only with the defendant intermediary who is in khas possession but also with all the shareholders owning the estate. Both the plaintiffs and the defendant are entitled to retain possession of the disputed lands and hold them as raiyat under the State Government, having occupancy right in respect of such lands subject however to the payment of such fair and equitable rent as may be determined by the Collector, in prescribed manner.
On the strength of Section 7(1) (a) however, neither the plaintiffs nor the defendant are ipso facto entitled to the lands unless, under Section 8-A(1) of the Act the intermediary files his claim in the prescribed manner for the settlement of fair and equitable rent in respect of lands and buildings which are deemed to be settled with him, under Section 7, within the prescribed period. In this case, the plaintiffs alleged that they had filed such an application before the Collector and the fact is not disputed by Mr. Misra.
The aforesaid conclusion is not affected by the decision of this Court Raghunath Rao v. Jagannath Swamy in ILR (1963) Cut 239 which was not a case amongst co-sharers, out was one in which the plaintiff had title but no 'khas' possession.
7. Under Sub-section (3) of Section 8A, on the failure of filing the claims within the period specified under this section, the provisions of Clause (h) of Section 5 shall, notwithstanding anything to the contrary in Sections 6, 7 and 8, apply as if the right to possession of the lands or buildings or structures, as the case may be, had vested in the State Government by the operations of this Act and thereupon the right to make any such claim as aforesaid shall stand extinguished. Under this sub-section, if the plaintiffs or the defendant have made no application before the Collector within the specified period, their right to make any such claim, even in respect of lands in which the defendant is in Khas possession, stands extinguished.
Under the first proviso to Sub-section (2) of Section 8-A, the Collector shall, as soon as may be after any such claim under Sub-section (1) is filed, give public notice thereof by beat of drum in the appropriate locality and by placards posted at such conspicuous places as he deems fit inviting objections from persons interested. If the plaintiffs or the defendant have filed an application under Sub-section (1) for settlement of fair and equitable rent in respect of the disputed lands, the Collector is bound to invite objections as prescribed. Under Sub-section (4) any person disputing the claim as to the extent or possession of such lands or buildings or structures, as the case may be may file an objection before the Collector within three months from the date of publication of the notice under Sub-section (2) of such claim and the Collector shall, prior to the determination of rent under Sections 6, 7 and 8, enquire into the matter in the manner prescribed and pass such order as he deems just and proper.
Thus, even if the defendant is in Khas possession on the date o the vesting, the disputed lands shall be deemed to have been settled with the plaintiffs and the defendant. The matter must be specifically determined by the Collector after inviting necessary objections under Sub-section (4) of Section 8-A. These provisions come under Chapter II of the Act.
8. Section 39 of the Act prescribes that no suit shall be brought in any Civil Court concerning any matter which is or has already been the subject-matter of any application made or proceeding taken under Chapters II to VI. Admittedly plaintiffs have filed an application under Section 8-A (1) of the Act. The jurisdiction of the Civil Court to determine that matter is therefore excluded expressly by Section 39. Thus though under Section 7 (1) (a) the disputed lands shall be deemed to be settled by the State Government both with the plaintiffs and the defendant, the suit is not maintainable in Civil Court as the matter is exclusively triable by the Collector at the time of determination of fair and equitable rent. If there had been no vesting, plaintiffs' suit for half of the entire disputed lands, which was the subject-matter of the suit, was bound to succeed. But in view of the vesting, the question when the lands shall be deemed to have been settled with the plaintiffs or the defendant, must be determined by the Collector under Section 8-A of the Act.
9. To avoid confusion that is likely to be created before the Collector, the legal position may be summarised thus :
(i) In respect of the entire disputed lands, which were the subject-matter of the suit, the plaintiffs and the defendant were co-sharers on the date of vesting.
(ii) In the proceeding under Section 145, Criminal P. C, defendant was found to be in possession to the exclusion of the plaintiffs from the date of the preliminary order.
(iii) Despite the favourable order in favour of the defendant in the proceeding under Section 145, Criminal P. C., plaintiffs' title to the property was not extinguished on the date of the vesting; but for the vesting plaintiffs' claim for declaration of title and recovery of possession in respect of the undivided half of the entire disputed lands were bound to succeed.
(iv) Though the defendant was in khas possession on the date of vesting, under Section 7 (1) (a) the entire disputed lands shall be deemed to have been settled by the Government both with the defendant (who was in khas possession) and with the plaintiffs (who were share-holders of the defendant).
(v) If the plaintiffs or the defendant have made no claim for settlement of fair and equitable rent in, respect of the lands under Section 8-A (1), their right to make any such claim shall stand extinguished under Sub-section (3) and the entire disputed lands, which were the subject-matter of the suit, shall vest in the State.
(vi) If, however, such claims have been filed, the Collector shall go into the objections of the respective parties and pass such orders as he deems just and proper under Sub-section (4). The legal position has been, discussed fully above and the only legal order that can be passed by the Collector is to hold that the lands shall be deemed to have been settled both with the plaintiffs and the defendant.
(vii) Though the nature of the order that has to be passed by the Collector has been indicated this Court cannot pass such an order as the jurisdiction of the Civil Court is barred under Section 39 of the Act.
The High Court in second appeal is merely to exercise those powers which the Civil Court can exercise.
10. As the Civil Court has no jurisdiction, the suit is liable to be dismissed. The appeal is accordingly allowed, but in the circumstances, parties to bear their own costs throughout.
Barman, Actg. C.J.
11. I agree.