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Reghu Singh and ors. Vs. Government of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 38 of 1948
Judge
Reported inAIR1951Ori95
ActsCentral Provinces Land Revenue Act, 1881 - Sections 4(1), 4(9), 65A, 65A(4), 80, 108 and 116; Code of Civil Procedure (CPC) , 1908 - Order 14, Rule 1 - Order 41, Rule 27; Tenancy Law; Central Province Tenancy Act, 1898 - Sections 45(1) and 45(2); Evidence Act, 1872 - Sections 115
AppellantReghu Singh and ors.
RespondentGovernment of Orissa and ors.
Appellant AdvocateP.C. Chatterji and ;B. Dube, Advs.
Respondent AdvocateS. Misra and ;B. Mohapatra, Advs. and ;Adv. General
Cases ReferredHedayet Alt v. Kalanand Singh
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or 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.....narasimham, j.1. this is an appeal from the judgment of the subordinate judge of sambalpur, dismissing the plaintiff-appellants' suit for recovery of possession of village pandripathar together with its sir and khudkast lands as given in schedule 'a' to the plaint.2. pandripathar village is a village within rampur zamindary in sambalpur district, the present zamindir being mohan brajaraj singh defendant 7. in the khewat (ex. 2) of the last settlement of sambalpur district (known as hamid's settlement) which took place in 1921 25 the whole village excluding some lands of the b. n. rly., was entered in the name of dasarath singh (defendant 3) as kharposdar (maintenance-holder) under the khewat of the zamindar of rampur to whom the said dasarath singh was liable to pay an annual revenue of.....
Judgment:

Narasimham, J.

1. This is an appeal from the judgment of the Subordinate Judge of Sambalpur, dismissing the plaintiff-appellants' suit for recovery of possession of village Pandripathar together with its Sir and Khudkast lands as given in Schedule 'a' to the plaint.

2. Pandripathar village is a village within Rampur zamindary in Sambalpur district, the present Zamindir being Mohan Brajaraj Singh defendant 7. In the Khewat (Ex. 2) of the last settlement of Sambalpur district (known as Hamid's Settlement) which took place in 1921 25 the whole village excluding some lands of the B. N. Rly., was entered in the name of Dasarath Singh (defendant 3) as Kharposdar (maintenance-holder) under the Khewat of the Zamindar of Rampur to whom the said Dasarath Singh was liable to pay an annual revenue of Rs. 144-8-0. In 1930, the Zimindar of Rampur applied to the Sub-divisional Officer of Sambalpur for the sale of the right of Dasarath Singh (see Ex. 9) for realisation of the arrear revenue due to him. His application was made under Schedule 16, Central Provinces Land Revenue Act, 1881 under which any arrear due to a Malguzar can be recovered through the Deputy Commissioner as if it were an arrear of revenue payable directly to Government. The procedure for realising arrears of revenue payable directly to Government is described in Section 94 of the said Act and one of the methods of such realisation is by the sale of the mahal in respect of which an arrear accrued (see cl. (f) of Section 94). But such a sale requires the sanction of the Board of Revenue and consequently the Sub-divisional Officer in his order dated 18-7 1931 (ex. A-l) submitted a note to the Deputy Commissioner requesting that the Board of Revenue be moved for sanctioning the sale of the property of Dasarath Singh under Schedule 16 read with proviso (1) to A. I. R. Schedule 4, C. P. Land Revenue Act. Prom a subsequent order (Ex. B-l) dated 11-8-1932 it appears that the sanction' of the Board of Revenue was communicated in letter No. 407R dated 8-8-1932 from the Commissioner to the Deputy Commissioner, Sambalpur. The sale was first held on 7-6-1932 and the price fetched was only Rs. 700. On 27-6 1932 a petition was filed (Ex. 7) by one Durjodhan Singh claiming to be the guardian brother of Dasarath Singh said to be insane, objecting to the sale on the ground that the sale proclamation wa3 not properly served on the spot and that the property was sold for a grossly inadequate sum. The S.D.O. apparently felt that there was much force in this objection and, therefore, issued a fresh sale proclamation (Ex. G-l) on 22-9-1932 for the sale of the sixteen annas Kharposh right in Mouza Pandripathar together with the Sir and Khudkast lands attached to the same belonging to the said Dasarath Singh. In the proclamation, however, it was specifically noted that the sale was subject to the provisions of Section 108, C. P. Land Revenue Act, and a list of the encumbrances known to exist on the property was also appended to it. In due course the sale was held and the property was purchased at an auction by one Mangal Mistri on 21-10-1932 for Rs. 4000, The auction-purchaser was required to pay a further sum of Rs. 1433 4-0 before the confirmation of the sale. After the confirmation of the sale by the Deputy Commissioner a sale certificate (Ex. J-1) was issued in favour of Mangal Mistri under the signature of the Deputy Commissioner himself on 10-1-1933. After some obstruction by some of the co-sharers of Dasarath Singh delivery of possession of the village was given to the auction-purchaser on 2-9-1932 (Ex. I-1). On 28-7-1936 the said Dasarath Singh and some of his co-sharers (who are defendants in this suit) applied to the Deputy Commissioner (ex. A 2) and withdrew the balance of the sale proceeds amounting to Rs. 1,742 13-0.

3. The plaintiffs are also some of the co-sharers of Dasarath Singh who were, however, not signatories to the petition (Ex A 2) dated 28-7-36 for withdrawal of the balance of the sale-proceeds. Their present suit is for recovery of possession of the whole village including its sir and khudkast lands on the main ground that the sale held by the S.D.O. on 21-10-32 (ex. C-l) was invalid inasmuch as the property was inalienable and non-transferable, They impleaded as defendants the auction-purchaser (defendant 2), the Government of Orissa (defendant l) Dasarath Singh (defendant 8) and other co-sharers who had withdrawn the balance of the sale-proceeds (defendants 4, 5 and 6). the zamindar of Rampur (defendant 7) and a subsequent transferee from the auction-purchaser (defendant 8). The impleading of the Government of Orissa was clearly wrong inasmuch as it is not the case of the plaintiffs that either the Government or its subordinate Revenue Officials entered into a fraudulent conspiracy with the other defendants with a view to defraud the plaintiffs by misusing their powers under S.116, C. P., Land Revenue Act and thus bring about a sale of the property. The Ravenue Officials merely exercised their statutory powers under the said Act and there is absolutely nothing to suggest that their action was not bona, fide. At the commencement of the hearing of the appeal Mr. Dube on behalf of the appellants properly conceded that he claimed no relief against the Government and that the latter was not a necessary party to the litigation. In view of this concession, it is unnecessary to consider the various points regarding the maintainability of the suit against the Government and the adequacy of the notice under Schedule 0, Civil P. C., which have been discussed at great length by the trial Court.

4. Prom the foregoing narrative, it will be clear that the crucial point for consideration is whether the sale of the village held by the S.D.O. on 21-10-32 (ex. c-1) was invalid. A second point which was strenuously pressed before us is whether even on the assumption that the sale was valid, the right of Dasarath Singh and his co-sharers to the sir lands of the village which ripened into an occupancy right Under Section 45 (1), Central Provinces Tenancy Act, 1892 was also transferred to the auction-purchaser by the said sale or else whether, that right remained unaffected by the sale.

5. I shall deal with each of these points separately.

6. The validity of the sale dated 21-10 32 was challenged on three grounds; ((i) the judgment, debtor Dasarath Singh was insane at the time of the (sic) and he was not properly represented before the S.D O. in the proceeding; (ii) the right of the said Dasarath Singh was that of a protected thekadar Under Section 65-A, C. P. Land Revenue Act and that consequently his tenure was not saleable in execution of any decree in view of el. (a) of Sub-section (4) of that section ; and (iii) the Zamindar of Rampur is not a Maiguzar within the meaning of Schedule 16, C. P. Land Revenue Act and consequently the S.D.O. acted without jurisdiction in selling the tenure while purporting to act under Schedule 16 of that Act.

7. None of these grounds is sustainable. The plea that Dasarath Singh was insane in 1932 has not been substantiated. (After discussing the evidence, the judgment proceeded:) I would, therefore, in agreement with the lower Court, hold that the plea of insanity must fail as it is not supported by reliable evidence.

8. As regards the second ground, there is absolutely no evidence on record to show that Dasarath Singh's right in the village was that of a protected thekadar under Schedule 5a, C. P. Land Revenue Act. That section confers on a Settlement Officer the power to declare certain thekadars to be protected for the purposes of that section. No such declaration of the Settlement Officer was proved before the Court. On the oth8r hand, from the settlement khewat (ex. 2) already referred to it appears that the only right of Dasarath Singh recognised by the Settlement authorities was his right as a maintenance holder (Kharposdar). If the Settlement Officer had declared Dasarath Singh to be a protected thekadar he was bound in law to mention that fact in the Khewat in view of Schedule 0, C. P. Land Revenue Act, read with the rules framed under that section. The special reasons as to why these maintenance-holders were not given the status of a protected thekadar would be found at p. 30, Para. 34 of Hamid's Settlement Report where the Settlement Officer relied on a decision of a Munsif in a suit from Rampur zamindari in 1907 to the effect that the declaration of certain maintenance holders as protected thekadars was ultra vires. That decision was upheld in appeal by the Subordinate Judge and also by the High Court in the case reported in Hedayet Alt v. Kalanand Singh, 20 I. C. 332 : (17 C.L.J. 411). The Settlement Officer relying on this view of law regarding the construction of Schedule 6-A, refused to recognise the maintenance, holders as protected thekadars. It was certainly open to the aggrieved party to take up the question on appeal or revision before the superior Revenue Officials challenging the correctness of the afore-said decision. But it was not done. Mr. Dube on behalf of the appellants, however, suggested that subsequent to the settlement operations the parties might have applied to the Deputy Commissioner who under Section 132 (i), C. P. Land Revenue Act, exercises the powers of a Settlement Officer for certain limited purposes and that the Deputy Commissioner might have given the status of a protected thekadar to Dasarath Singh. Though there is no legal objection to the Deputy Commissioner giving such protected status the question for consideration is whether in fact he did so. No order of the Deputy Commissioner to that effect has been produced either before the lower Court or before us. Consequantly not only is there no evidence on record in the nature of a certificate or order either by the Settlement Officer or by the Deputy Commissioner or any other superior Revenue Officer recognising Dasarath Singh as the protected thekadar of the village but on the other hand the entry in the Khewat specifying the right of Dasarath Singh to be that of a mere Kbarposdar coupled with the reasons given by the Settlement Officer at p. 30 of Hamid's Settlement Report for refusing to recognise maintenance. holders as protected thekadars would indicate that Dasarath Singh was not given that status by the Settlement Officer deliberately. In the present litigation it is unnecessary to consider whether the Settlement Officer's view about Schedule 5-A, C. P. Land Revenue Act, which is based on a judicial decision of a Munsif of Sambalpur in respect of some other villages though within the same zamindari is correct or not. Under Section 65-A the Settlement Officer alone has the power to confer such a status, subject of course to appeal or revision by the superior Revenue authorities, and the special incidents of a protected thekadar such as non-saleability in execution of any decree as specified in Sub-section (&) of Schedule 5-A apply only to those thekadars who have been declared to be protected under that section. The plaintiffs cannot claim the benefit of el. (a) of Sub-section (4) of Section 65-A in view of their failure to show that Dasarath Singh was declared to be a protected thekadar under that section.

9. Mr. Dube, however, contended that from the pleadings of the parties it was clear that they all admitted the status of Dasarath Singh to be that of a protected thekadar and that in view of this admission no evidence on this point was necessary. In support of this argument he has invited our attention to Para. 8 of the plaint in which such status was claimed by the plaintiffs and para, l of the written statement of defendants 2 to 7 where also it was specifically admitted that Dasarath Singh's status was that of a protected thekadar. But the Government of Orissa in Para. 6 of their written statement challenged this fact and one of the principal issues raised by the parties was issue 8 which ran as follows;

'What was the status of Dasarath Singh? Whether he was protected Thekadar or Kharposdar and did his status affect the liability of the plaintiffs on the sale of the tenure for default in paying the thika jama?'

Thus when a specific issue was raised on the question notwithstanding the admissions made by defendants 2 and 7, it is clear that the plaintiffs were bound to lead evidence to show the status of Dasarath Singh as protected thekadar. The admission of defendants 2 and 7 is not unambiguous and in any case the protection under Section 65-A, C. P. Land Revenue Act, can be granted' only to those thekadars who have obtained the proper declaration from the Settlement Officer under that section. In the absence of any proof of such declaration and in view of the other circumstances already referred to, I would hold that the plaintiffs have failed to prove that the status of Dasarath Singh was that of a protected thekadar and consequently the sale cannot be challenged on the ground that the tenure is non saleable.

10. During the hearing of the appeal a petition was filed by Mr. Dube, the learned counsel for the appellants, for admitting as additional evidence the Khewat of the village in Dewar's Settlement of 1906 in which Dasarath Singh's predecessor-in-interest was recorded as a protected thekadar of the village. Mr. Dube submitted that this document was not adduced in. evidence in the trial Court chiefly because of the admissions made in the pleadings and that consequently he should be given an opportunity to prove the protected status of Dasarath Singh from Dewar's Settlement Khewat. Mr. Mohapatra on behalf of the respondents, however, objected to the admission of this document at this belated stage on the ground that it would be highly prejudicial to the opposite-party unless they are given a further opportunity to adduce rebutting evidence. He submitted that even if Dasarath Singh's predecessor had been, recognised as a protected thekadar during Dewar's Settlement, such protection might have been withdrawn subsequently prior to Hamid's Settlement and that had this document been proved in the trial Court they (Mr. Mohapatra's clients) would have had an opportunity to show how by subsequent events the effect of the entry in Dewar's Settlement has been practically removed. We are satisfied that Mr. Mohapatra's objection is based on good grounds. To allow additional evidence at this stage would., involve a rehearing of the suit inasmuch as in fairness to the other side they should be given an opportunity to adduce rebutting evidence. Moreover, we are not satisfied with the reasons given by Mr. Dube, for the failure of his clients to prove Dewar's Settlement Khewat in the trial Court itself. As already pointed out the question about Dasarath Singh's protected thekadari status was one of the issues in the suit notwithstanding the guarded admission in the pleadings. The plaintiffs were therefore bound to adduce all possible evidence to prove this protected status. In fact they proved the Khewat of Hamid's Settlement (Ex. 2). But for some in explicable reason they did not care to prove the Khewat of Dewar's Settlement. We have, therefore, decided to reject the prayer for adducing additional evidence at this belated state.

11. The third ground of attack of the sale depends on whether the Zamindar of Rampur is a Malguzar within the meaning of Schedule 16, C. P. Land Revenue Act. The expression 'Malguzar' has been defined in cl. (9) of Schedule of that Act as follows:

''Malguzar' means a person who, under the provisions of this Act, has accepted, or is to be deemed to have accepted, the assessment of a mahal, and includes his representatives and assigns, and also any person with whom a settlement has been made before this Act comes into force, and his representatives and assigns.'

The expression 'mahal' has also been defined in cl. (7) of the same section as follows:

''Mahal' means any local area held under a separate engagement for the payment of the land-revenue direct to Government, and includes also any local area declared, under the provisions of this Act, to be a mahal but does not include a survey number.'

There is no definition of the expression 'Zamindar' nor does that expression appear in any of the provisions of the C. P. Land Revenue Act, Doubtless in the Wajib-ularz prepared by the Settlement Officers under that Act villages in Sambalpur were divided into Malguzari villages and Zamindari villages. But the Wajib-ul-arz deals with other incidents of such villages and as regards assessment of land-revenue, collection of land-revenue and realisation of revenue by Malguzars from inferior proprietors etc., the Act itself makes exhaustive provisions. The Act does not make any separate provision for a Zamindar as distinct from a Malguzar. The main difference between a Zamindar and a Malguzar will be clear from a perusal of chap. VI of Dewar's Settlement Report of 1906. Zamindars are bigger proprietors having an ancient historical origin and the revenue they pay to the Government usually known as Takoli is generally not based on full assessment due to various reasons. Their estates are impartible and not transferable except to a limited extent and each estate is held by a Zamindar under the Government under separate terms. Malguzars appear to be recent creations. But for the purposes of the O. P. Land Revenue Act there is no distinction between a Zamindar and a Malguzar so far as the assessment of land revenue and realisation of land-revenue from inferior proprietors are concerned. The Zamindar also holds a 'mahal' 'under separate engagement for payment of land-revenue direct to Government' and from a mere contruction of cl. (9) of Schedule C. P. Land Revenue Act, he would come within the definition of the expression 'Malguzar'. Consequently Schedule 16, C. P. Land Revenue Act, which confers on a Malguzar a right to realise arrear of revenue due to him from an inferior proprietor with the help of the Deputy Commissioner would apply to a Zamindar also. The Revenue officials were therefore justified in selling the property under Schedule 16 read with Schedule 4, C. P. Land Re. venue Act.

12. I now take up the second main point urged by Mr. Dube regarding the accrual of right of occupancy in the sir lands of the village by Dasarath Singh and his co-sharers. The sale proclamation (Ex. G-l) makes it absolutely clear that the sale of the village was subject to the provisions of Schedule 08, C. P. Land Revenue Act. That section says that unless the Chief Commissioner (in the present case the Board of Revenue) otherwise directs a purchaser of any land sold for arrears of revenue due in respect thereof acquires the proprietorship free of all leases, liens and other encumbrances. In the sale proclamation, however, certain encumbrances were specified and the sale was made subject to those encumbrances. But cl. (c) of Schedule 08 further says:

'Nothing in this section shall deprive any defaulter whose property is sold of the rights in respect to his sir land conferred by any law for the time being in force.'

This section, therefore, makes a difference between leases, liens and other encumbrances on the one hand and the special rights over the sir lands conferred by any law for the time being in force on the other. That law for the purpose of the present case will be found in Section 45 (1), C. P. Tenancy Act* which says :

'Notwithstanding any agreement to the contrary and save where sanction has been given under Sub-section (2) a proprietor who, after the commencement of this Act temporarily or permanently loses (whether under decree or order of a Civil Court or a Revenue-Officer or otherwise) or transfers his right to occupy sir land as a proprietor, shall at the date of such loss or transfer become an occupancy tenant of that sir land, and the rent payable by him as such shall be the sum determined by the current settlement as the rental value of such land, unless and until, on the application of either landlord or tenant, the rent la fixed by a Revenue Officer.'

From a scrutiny of Sub-section (1) of Schedule 5, C. P. Tenancy Act, it follows that when a proprietor loses his proprietary right in the village by sale for arrears of revenue due thereon, on the same day he gets occupancy right over his sir lands and the person who has newly acquired the proprietary right from him is entitled only to realisation of fair rent from him in respect of those lands. This occupancy right can be given up by him only on an application made by him to the Revenue Officials for transfer of his sir lands without reservation of the right of occupancy as provided in Sub-section (2) of Schedule 5, C. P. Tenancy Act. That right cannot be extinguished by a decree even of a Revenue Court in view of the clear words of Sub-section (l) of Schedule 5, C. P. Tenancy Act. Therefore when in the sale proclamation of the village (Ex. G-l) it was expressly stated that the sale was Subject to the provisions of Section 108, C. P. Land Revenue Act and when cl. (c) of that section saves the right which the defaulting proprietor: may have in respect of his air lands by any law for the time being in fores it must follow that when the village Pandripathar was sold on 21-10-32 on the very same day Dasarath Singh acquired occupancy rights over his sir lands by virtus of sub-S (1) of Schedule 5, C. P. Tenancy Act. That occupancy right can be extinguished only on an application made by him under Sub-section (2) of Schedule 5, C. P. Tenancy Act to the Revenue authorities. Admittedly this has not been done and mere conduct of Dasarath and his other co-sharers in withdrawing the balance of the sale proceeds, on 28-7-36 (vide Ex. A-2) will not have the effect of extinguishing that right. An occupancy right, once it has accrued, can be extinguished only in the manner provided in the C. P. Tenancy Act and not by mere rule of estoppel based on subsequent conduct as proved by Ex. A-2.

13. Mr. Mohapatra on behalf of the respondents raised the following points in reply to this contention, (i) The appellants ware not entitled to raise the question of applicability of S 45 (1), C. P. Tenancy Act, for the first time in the appellate Court; (ii) Dasarath Singh was not a proprietor within the meaning of Schedule 5 (1), C. P. Tenancy Act and (iii) in any view of the case though Dasarath might have had occupancy rights in the sit lands the plaintiffs are not his co-sharers joint with him and consequently their suit must fail.

14. As regards the first point, though there is some force in the contention of Mr. Mohapatra I think where a pure question of law arises it is not open to him to object to the raising of that question for the first time in a first appeal. It is true that the pleadings do not show that the plaintiffs claimed occupancy right in respect of the sir lands only under Schedule 5 (l), C. P. Tenancy Act, and the lower Court's judgment also does not show that this point was pressed before the Court. But this is a pure question of law and in view of the clear terms of cl.'(c) of Schedule 08, C. P. Land Revenue Act, and Schedule 5 (l), C. P. Tenancy Act I fail to see how any objection can be taken to it at the first appellate stage. The point was raised clearly in the grounds of appeal (see para. 11) and there can be no question of any prejudice to any party. In the plaint, the relief asked for was the recovery of possession of the whole of village Pandripathar together with its sir and khudkast lands. A list of the sir lands of the village was appended to the plaint. Thus recovery of possession of the sir lands was a portion of the relief sought, and if the plaintiff is entitled to that part of the relief by virtue of Schedule 5 (1), C. P. Tenancy Act, it may not be proper to deny him that relief merely because the legal basis on which it was claimed was not set forth in the plaint.

15. Next as to whether Dasarath Singh is a proprietor within the meaning of Schedule 5 (l). C. P. Tenancy Act I think the Khewat (Ex. 2) furnishes a satisfactory answer. The expression 'proprietor' has not been fully defined either in the C. P. Land Revenue Act or in the C. P. Tenancy Act and the definition given in cl. (8) (a) of Section 4, C. P. Land Revenue Act being of an inclusive nature is not helpful. But Sections 49, 50, 51 and 108 and other sections of the C. P. Land Revenue Act speak of 'superior proprietors and inferior proprietors' and they seem to indicate that the position of Dasarath Singh was that of an inferior proprietor, Moreover under S 4 (1) (a), C. P. Land Revenue Act, sir lands are the home-farm lands of a proprietor and when the Settlement authorities entered some lands as the sir lands of Dasarath Singh, (see Ex. 3) it; necessarily follows that his status was recognised as that of a proprietor.

16. The third objection of Mr. Mohapatra requires some investigation of facts. In the plaint it was clearly stated that the plaintiffs were joint with Dasarath and other co-sharers (defendants 4, 5 and 6) though the sir lands were being possessed by them separately for their maintenance. In the written statement of Dasarath Singh and his other co-sharera (defendants 3, 4, 5 and' 6) this statement about the jointness of the parties was admitted. Defendants 2 and 7 being stranger auction-purchasers were not in a position to affirm or deny this plea of jointness. But on the contrary from para. 2 of their written statement it would appear that they also admitted the jointness of the plaintiffs and defendants 3, 4, 6 and 6,ln fact their main defence was that Dasarath fully represented the family in the revenue proceedings. The Government of Orissa doubtless pat the plaintiff to a proof of this fact and one of the issues raised was issue 12 which ran as follows : 'whether the statements made in paras. 2, 3 and 4 of the plaint are true'. The learned lower Court instead of giving a clear finding on this issue refused to record any finding without giving reasons. Here I think the lower Court made a mistake. Perhaps he was somewhat misled by the confused language used in the issue. Whether defendants 3, 4, 5 and 6 are joint or separate with the plaintiffs is of much importance both on the question of their right to sue which was fully agitated in the lower Court and also on the question of the applicability of Schedule 5 (1) (a), C. P. Tenancy Act as I shall show presently. As this is a first appeal I have thought it necessary to give a separate finding both from the pleadings as well as from the evidence recorded. Prom the pleadings of the plaintiffs and the contesting defendants it is clear that the parties admitted their joint status. In the order-sheet dated 21-1,0-1932 (Ex C-l) the Sub divisional Officer wrote that Mudgar Singh (defendant 4) was joint with Abhiram (defendant 6), Lokanath (defendant 5) and Durjodhan Singh (since dead), In the petition for withdrawal of money dated 58-7-1936 (Ex. A.2) defendants 3, 4, 5 and 6 jointly applied and withdrew the money. This shows clearly the jointness of defendants 3, 4. and 6. The plaintiffs are none else but the sons and brothers of these defendants as will be clear from a perusal of the pedigree appended to the plaint. For instance plaintiffs 1, 2, 3 and 4 are brothers of defendant 4 and plaintiff 8 is the son of defendant 4. Plaintiffs 6 and 7 are sons of Dasarath Singh and plaintiff 5 is the brother of defendant 6 and plaintiff 9 is the son of defendant 5. In fact defendants 3, 4, 6 and 6 are senior members of each of the branches of the original joint family and as they have been proved to be joint, their jointness with their own sons and brothers seems to be beyond question. The only witness to prove the jointess is p.w. 1, who though not expressly mentioning this fact, speaks throughout as if the whole property belonged to all of them. Prom the aforesaid evidence and pleadings I would, therefore, hold that the plaintiffs and defendants 3,4,5 and 6 are members of a joint family though each of the members is in separate possession of a small portion of the sir lands for maintenance as described in the Settlement Parcha (Ex. 3).

17. Therefore, though Dasarath Singh's name alone appears in the Khewat as the proprietor of the village, from his own admission in his written statement it is clear that he was only representing the whole joint family. When he lost his proprietorship over the -village by the Bale dated 21-10.1932 he on behalf of the family acquired occupancy right over the sir lands on the same d'y and the whole family is, therefore, entitled to that right. In the present litigation it is unnecessary to consider the rights of the members of the family as amongst themselves. This right of occupancy over the sir lands is not extinguished by the sale and consequently the auction-purchasers (defendants 2 and 8) were not justified in dispossessing Dasarath Singh 'and his co-sharers from their sir lands. All that they are entitled to is the right to get a fair rent fixed for such lands and to realise the same.

18. As regards the khudkast lauds, however, no special right can accrue to Dasarath and his so sharers after the sale and consequently the auction-purchaser (defendant 2) was entitled to full possession.

19. I would, therefore, allow the appeal to the following limited extent only It should be declared that plaintiffs and defendants 3, 4, 5 and 6 acquired occupancy rights over the sir lands of village Pandripathar a3 described in schedule 'a' to the plaint from 21-10-1932 by virtue of Sub-section (1) of S.45, C. P. Tenancy Act, and the auction-purchaser Mangal Miatri and his vendee defendant 8 acquired only the light to realise rent from those sir landti after it is fixed by a Eevenue Officer as provided in that sub section. Plaintiffs and defendants 3, 4, 5 and 6 are, therefore, entitled to recover actual possession of those lands only. Their claim in respect of the khudkast lands and in respect of the proprietary right in the whole village is not maintainable and is accordingly dismissed.

20. As there has been partial success of both the parties, each party will bear its own costs both in the lower Court and in this appeal. The appeal against the Government of Orissa is dismissed with costs and the plaintiffs should pay coats to the Government both in the lower Court and in this appeal.

Jagannadhadas. J.

21. I agree.


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