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Krushna Kumari Bewa Vs. Kendrapara Co-operative Land Development Bank - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 345 of 1983
Judge
Reported in60(1985)CLT543; 1985(II)OLR375
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9 and 47; Orissa Land Reforms Act, 1960 - Sections 15, 15(1), 15(5), 15(6), 15(7), 24(2), 29, 67 and 73; Orissa Land Reforms (Amendment) Act, 1974
AppellantKrushna Kumari Bewa
RespondentKendrapara Co-operative Land Development Bank
Appellant AdvocateS. Mishra-1, Adv.
Respondent AdvocateM. Patra, Adv.
DispositionPetition allowed
Cases ReferredSudam Charan Mohapatra v. Thumpu Majhi and Ors.
Excerpt:
.....filed within one year from the said date. (5) if after holding enquiry under sub-section (2) the revenue officer is satisfied that the tenant was cultivating the land at the date of commencement of this act, or at any time there after, and that he is being unlawfully prevented from cultivating such land by his landlord, he may in addition to the penalty that he may impose on the landlord under section 18, order the landlord by a notice served in the prescribed manner to allow the tenant to enter the land forthwith and to cultivate it as a tenant. (6) if the revenue officer is satisfied after such further enquiry as he may deem necessary that the landlord has failed to comply with his order under sub-section (5), he shall take such steps as may be necessary to put the tenant in..........the trial court, and indeed, the application tiled by the petitioner having been dismissed by the revenue officer, the objection raised by the judgment-debtor-petitioner is devoid of merit. he has further contended that the opposite party being a cooperative land development bank is a privileged raiyat and as such the provisions of the o. l. r. act have no application to it.4. before considering the contentions raised by the counsel for the parties,it would be helpful to quote the relevant provisions of the o. l. r. act material for the case.section 2(24) defines privileged raiyat as follows :2. xx xx xx(24) 'privileged raiyat' means ;-(a) a co-operative society registered or deemed to be registered under the orissa co-operative societies act, 1962, and includes a land development bank.....
Judgment:

D.P. Mohapatra, J.

1. The core question that arises for consideration in this Civil Revision petition is whether the decree under execution is a nullity in view of the provisions of the Orissa Land Reforms Act, 1960 (hereinafter referred to 'the O. L. R. Act') which bar jurisdiction of the Civil Court.

2. The opposite party, Kendrapara-Co-operative Land Development Bank, filed Title Suit No. 394 of 1978 in the Court of the Munsif, Kendrapara, for arrears of bhag dues, eviction of the petitioner from the suit land and for delivery of possession through Court. The suit was decreed ex parte against the petitioner. Thereafter, the opposite party-decree-holder filed Execution Case No. 11 of 1981 for execution of the above mentioned decree.

In the execution case, the petitioner filed an application under Section 47. Civil Procedure Code ('Code' for short), challenging the decree on two grounds ; (i) that the execution case is hit under Sec, 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as 'the Consolidation Act, ) ; and (ii) that the Civil Court had no jurisdiction to entertain the suit in view of Section 15 read with Section 67 of the O. L. R. Act. The trial Court by the impugned order over ruled both the objections and dismissed the petition under Section 47, C. P. Code.

3. The learned counsel for the petitioner concedes that the contention that the' Execution Case is hit under Section 4(4) of the Consolidation Act is not tenable since the said provision does not affect a decree. He has pressed the objection on the basis of the provisions of the O. L. R. Act.

The learned counsel for the opposite party while trying to support the impugned order has contended that since no proceeding under Section 15 of the O. L. R. Act between the parties is pending, as round by the trial Court, and indeed, the application tiled by the petitioner having been dismissed by the Revenue Officer, the objection raised by the judgment-debtor-petitioner is devoid of merit. He has further contended that the opposite party being a Cooperative Land Development Bank is a privileged raiyat and as such the provisions of the O. L. R. Act have no application to it.

4. Before considering the contentions raised by the counsel for the parties,it would be helpful to quote the relevant provisions of the O. L. R. Act material for the case.

Section 2(24) defines Privileged Raiyat as follows :

2. xx xx xx(24) 'Privileged Raiyat' means ;-

(a) a co-operative society registered or deemed to be registered under the Orissa Co-operative Societies Act, 1962, and includes a Land Development Bank and State Land Development Bank as defined in that Act ;

Section 2(31) defines 'tenant' as follows :

(31) 'Tenant' means a person who has no right in the land of another but under the system generally known as Bhag, Sanja or Karta or such similar expression as under any other system, law, contract, custom or usage personally cultivates such land on payment of cent in cash or in kind or in both or on condition of delivery of that person-:

(a) Either a share or the produce of such land ; or

(b) The estimated value of a portion of the crop raised on the land ; or

(c) A fixed quantity of produce irrespective of the yield from the land ; or

(d) Produce or its estimated value partly in any of the ways described above and partly in another.

Section 12 of the Act provides as follows :

12. Decision of dispute among landlords and raiyats-(1) Any dispute between a raiyat and his landlord relating to-

(i) The landlord's right to evict the raiyat under Section 8; or

(ii) The rights conferred under Sections 4, 9 and 10, or

(iii) The raiyat's right to possession of the land and his rights to the benefits under this Act, shall be decided by the Revenue Officer on an application to be filed by any person interested :

Provided that such application shall be filed before Revenue Officer in the prescribed manner within sixty days from the date on which the dispute arises.

(2) On receipt of an application under Sub-Section (1) the Revenue Officer shall, after making such enquiry, as may be necessary, pass such orders as he deems fit.

(3) The Revenue Officer may take such further steps as he may consider necessary to give effect to the orders passed under Sub-Section (2).

Section 14 of the Act sets out the grounds for eviction of tenant.

Section 15, which is very much material for the case is quoted in extenso.

15. 'Recovery of rent and dispute between landlord and raiyat or tenant:-

(1) Any claim for recovery of arrears of rent by a landlord and any dispute between a landlord and his raiyat or tenant as the case may be. as regards-

(a) the quantum of rent payabe; or

(b) tenant's possession of the land and his rights to the benefits under this Act; or

(c) the right of the landlord to terminate the tenancy of a tenant under Section 14 or the liability of a tenant to cease to cultivate the land under that section ; or

(d) the existence of the relationship of landlord and tenant shall be decided by the Revenue Officer on an application to be filed (in the prescribed manner) by any party interested :

Provided that an application in respect of-

(a)a claim for recovery of arrears of rent, shall be filed within one year from the date on which such arrear falls due ;

(b) a dispute referred to in Clauses (c) and (c) shall be filed within sixty days from the date on which the dispute arises ; and

(c) a dispute referred to in Clauses (c) and (d) shall be filed within two years from the date on which the dispute arises:

Provided further that in the case of any dispute referred to in Clauses (b) and (d) which bad arisen prior to the, date of commencement of the Orissa Land Reforms (Second Amendment) Act, 1975, an application in respect thereof may, if not filed earlier, be filed within one year from the said date.(2) On receipt of the application under Sub-Section (1), the Revenue Officer may, after making such enquiry as he deems fit, direct the payment of arrears of rent, if any, found due or determine the quantum of rent under Clause (a) or in cases under Clauses (b), (c) and (d) thereof, order the tenant by a notice served in the prescribed manner and specifying the grounds on which the order is made to cease, to cultivate the land :

Provided that in case of dispute arising out of a matter mentioned in clause (c) of Sub-Section (1) of Section 14, the Revenue Officer, before ordering the tenant to cease to cultivate the land shall decide, if rent had been duly offered and may allow reasonable opportunity to the tenant to pay or deliver to his landlord the rent payable.(3) An order for eviction made by the Revenue Officer under Sub-sec (2) shall take effect on and from the first day of the year next following the date on such older.

(4) If any tenant on whom a notice under Sub-Section (2)has been served does not cease to cultivate the land the Revenue Officer may take such steps as he may deem necessary for the purpose of giving effect to his orders.

(5) If after holding enquiry under Sub-Section (2) the Revenue Officer is satisfied that the tenant was cultivating the land at the date of commencement of this Act, or at any time there after, and that he is being unlawfully prevented from cultivating such land by his landlord, he may in addition to the penalty that he may impose on the landlord under Section 18, order the landlord by a notice served in the prescribed manner to allow the tenant to enter the land forthwith and to cultivate it as a tenant.

(6) If the Revenue Officer is satisfied after such further enquiry as he may deem necessary that the landlord has failed to comply with his order under Sub-Section (5), he shall take such steps as may be necessary to put the tenant in possession of the land.

(7) Pending final disposal of the dispute under this section, the Revenue Officer may pass such interim orders relating to the appointment of Receiver, for taking charge of the crops, or getting the lands cultivated (restraining the landlord from interfering with the tenants, cultivation of the land or for such other purposes) as may deem necessary or expedient.'

Section 24(2)of the Act, it is provided that nothing in Chapter-III shall apply in respect of the lands held by a landlord, who is a privileged raiyat or a person under disability.

Section 67, O. L. R. Act reads as follows:

Section 67. 'Bar of jurisdiction of Civil Court (Save as otherwise expressly provided in this Act) no Civil Court shall have jurisdiction to entertain any suit or proceeding so far as it relates to any matter which any officer or other competent authority is empowered by or under this Act to decide.'

On a bare reading of the provisions quoted above the position that emerges is that if the O. L. R. Act contains a provision for dealing with a matter any dispute relating to the said matter is out of the purview of the Civil Court. For adjudication of such dispute recourse can be had only to the forum prescribed under the O. L. R. Act and the order passed by the prescribed authority, subject to appeal or revision, if any, is final and it is not available to be challenged in any Court of law. From the provisions under Section 15 of the O. L. R. Act, it is clear that any dispute regarding existence of relationship of landlord and tenant; the quantum of rent payable by the tenants tenant's possession of the land and his rights to the benefits under the Act; the right of the landlord to terminate the tenancy of a tenant under Section 14; the liability of a tenant to cease to cultivate the land under that section are to be decided by the Revenue Officer on an application being filed.

5. The Supreme Court in the case of Sundar Dass v. Ram Prakash (A. I. R. 1977 S. C. 1201) reiterating the settled-position of law that the executing Court cannot go behind the decree nor can it question its legality of correetness, observed that there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the Court passing it, its invalidity can be set up in an execution proceeding. The Court further observed that where there is lack of inherent jurisdiction, it goes to the root of the competence of the Court to try the suit and a decree which is a nullity is void and can be declared to be void by any Court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing Court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing Court would not incnr the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all.

In the case of Smt. Gouri Dei and Anr. v. Agadhu Sahu and Anr. (197l)(l) C W. R. 920), considering the question of bar of jurisdiction of the Civil Court under Section 67 of the Act in relation to matters coming under Section 15(1) (b), (5), (6) and (7) of the Act this Court held that if the dispute is whether the tenant is in possession of the disputed land and his possession is being interfered with, it must' be decided by the Revenue Officer and not by the Civil Court.

The Court further held that the Revenue Officer has been vested with powers to grant the relief of injunction, and as the Act empowers the Revenue Officer to grant injunction in suitable cases, the jurisdiction of the Civil Court to grant the same relief is clearly barred by Section 67.

A Division Bench of this Courc in the case of Sudam Charan Mohapatra v. Thumpu Majhi and Ors., [(1970)(1) C.W.R.,205)] taking a similar view held that the Revenue Officer has the power to issue the certificate under Section 29 of the O. L. R Act. The Landlord cannot, there-fore, resort to Civil Court to get the relief covered by Sec 29 of the Act. Section 67 in terms is a bar. The Civil Court has no jurisdiction to entertain a proceeding so far as it relates to any matter which the Revenue Officer is competent to do under the Act.

The learned counsel for the opposite party-Bank relied on a decision of this Court in the case of Biranchi Pradhan and others v. Jagannath Patra [(Vol. XXXIX (1973), C. L. T. 835)],wherein the Court discussing the scope of Sections 15 and 16 of the O. L. R. Act observed that the disputes contemplated under Section 15 of the Act can be decided only when the relationship of landlord and tenant between the parties is either not in question or is admitted or is prima facie found by the Revenue Officer competent to decide, and for the purpose of deciding the different categories of disputes specifically provided in that section. In case while deciding any particular matter expressly provided in Section 15, the existence of relationship of landlord and tenant is disputed, the competent Revenue Officer may Prima facia decide that question merely as a preliminary or jurisdictional fact, but the finding of the Revenue Officer to that effect would neither be final nor conclusive between the parties and can be challenged in a Civil Court by a regular suit.

The Court farther held that the disputes which have been specifically provided in Sections 15 and 16 of the Act are disputes of simple nature, and they do not include a serious dispute in regard to relationship between the parties, such as that between a landlord and tenant. If a dispute of such a serious nature had been intended to be decided by the Revenue Authorities the legislature would have decided in statutory express terms.

It is the contention of the learned counsel for the opposite party that since the relationship of landlord and tenant between the parties was not admitted, it cannot be said that the Civil Court had no jurisdiction to entertain the suit or that the Revenue Officer had exclusive jurisdiction to decide the matter. This argument is devoid of merit. The decision referred to above has no application to the present case. On perusal of the plaint it is clear that the relationship between the plaintiff and defendant as landlord and tenant respectively was admitted. There was no dispute relating to the question of relationship as observed in the decision. Further it is important to note that Section 15(1) (d) of O. L. R. Act, insetted by amendment under Act 9 of 19774, expressly provides that the existence of relationship of landlord and tenant shall be decided by the Revenue Officer on an application to be filed by any party into ested. As such the reasonirgs in the aforesaid decision, which was given prior to the amendment of the statute, no longer hold good.

6. As already noticed, Section 15 expressly provides that any claim for recovery of arrears of rent by a landlord and any dispute between a landlord and his raiyat or tenant, as the case may be, as regards the matter provided in the section which includes the existence of the relationship of landlord and tenant shall be decided by the Revenue Officer.

Sub-section (2) of the Section 15 empowers the Revenue Officer after making such enquiry as he deems fit, direct the payment of arrears of rent, if any, found due or determine the quantum of rent under Clause(a) or the case coming under Clauses (b)(c) and (d) thereof order the tenant by a notice served in the prescribed manner and specifying the grounds on order is made to cease, to cultivate the land.

Sub-Section (4) of the Section 15 of the Act provides that if any tenant on whom a notice under Sub-Section (2) has been served does not ce ase to cultivate the land, the Revenue Officer may also take such steps as he may deem necessary for the purpose of giving effect to his case.

From these provisions it is clear that the reliefs sought in the suit ware expressly vested with the Revenue Officer under the provisions of the O. L. R. Act and under Section 67, the jurisdiction of the Civil Court to determine such matters was expressly excluded. The decree of the Civil Court passed in ignorance of the bar of jurisdiction, under Section 67 of the Act was, therefore, null and void. The party evicted by such a decree, the petitioner in the present case, could raise the plea of the decree being a nullity in the execution case.

Coming to the contention raised by the learned counsel for the opposite party that the Land Development Bank being a privileged raiyat, the provisions of the statute do not apply to it, there is no merit in it. No provision other than the provision in Section 24(2) has been brought to my notice. Under the said provision, Chapter-Ill of the Act is not to apply to a privileged raiyat or a person under disability. Section 15 of the O. L. R. Act under which the disputes raised in the suit comes under Chapter-II of the Act and not Chapter-Ill. Section 67 of the O. L. R. Act which bars the jurisdiction of the Civil Court, also does not come under Chapter-III of the Act. Section 73, O L. R. Act sets out the lands to which the act does not apply. The opposite party does not claim exemption under the provisions of the said section. In these circumstances the opposite party cannot escape the consequence of the bar under Section 67 of the O. L. R. Act, in respect of the dispute under Section 15 of the Act on the plea of being a privileged raiyat.

7. In view of the analysis in the foregoing paragraphs it has to be held that the Executing Court erred in rejecting the application of the petitioner under Section 47 of the C. P. C, objecting to the executability of the decree.

In the result, the Civil Revision is allowed and the impugned order is set aside and the petition under Section 47 of the C P. C filed by the petitioner is allowed. There would be no order for costs of this proceeding.


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