1956 Supreme(SC) 7

SUPREME COURT OF INDIA
3rd February 1956.
S.R. DAS, C.J.I., BHAGWATI, JAGANADHA DAS, VENKATARAMA AYYAR AND SINHA, JJ.
Sailendra Narayan Bhanja Deo, Appellant
Versus
The State of Orissa, Respondent.
Civil Appeal No. 122 of 1954
Advocates Appeared
Mr. P. R. Das and Dr. Bakshi Tek- Chand Sr. Advocates (Mr. M. Mohanti and Mr. S. P. Varma, Advocates, with them), for Appellant : Mr. M. C. Setalvad, Attorney-General of India, Mr. B. Mohapatra, Advocate-General of Orissa (Mr. S. Mohanti and Mr. P. G. Gokhale, Advocates, with them) for the State.

Headnote: Orissa Estates Abolition Act, 1951 (1 of 1952) Sections 3(1), 2 (g) and (h)-Meaning of "estate" –Rajgee of Kanika whether "estate"

       Held: (1) Under Section 3 (1) of the Orissa Estates Abolition Act 1952, the State Government can declare that a specified "estate" has passed to and has become vested in the State. The State Government therefore cannot make any notification with respect to land which is not an "estate." «Estate" is defined in S. 2(g) of the Act as meaning;

       "any land held by an intermediary and included under one entry in any of the general registers of revenue-paying lands and revenue-free lands, prepared and maintained under the law for the time being in force by the Collector of a district ..... ;,

       In order to be an "estate", the land must be held by an "intermediary" .and must be included under one entry in any of the general registers of revenue-paying lands and revenue• free lands and such general registers must be prepared and maintained under the law for the time being in force. Section 2(b), as it stood then, by its earlier part, defined an "intermediary", with reference to any "estate" to mean, amongst other things, a proprietor. The plaintiff clearly claims to be the proprietor of his land. Therefore, if his land is an "estate" he is clearly an "intermediary.,

       (2) Prior to 1876; land registers used to be maintained under the Bengal Regulation 48 of 1793 as amended by Bengal Regulation 7 of 1800. Existing registers maintained in R. 20, Bengal Land Registration Act, 1876, clearly refer to registers kept under those Regulations.

       The Court is not competent to add words to S. 2 (g) of the Abolition Act so as to make it applicable to lands which were "validly" included under ~me entry in any of the general registers "properly" prepared and maintained under the law for the time being in force, that is to say, the Bengal Land Registration Act, 1876. If S. 2 (g) defined "estate" its including lands mentioned in the schedule to the Act, then whatever was included in the schedule would be an "estate" within them of the Abolition Act, irrespective of whether such land was or was not an "estate" within the meaning of any other Act. The same reasoning applies when the definition includes lands entered in the general registers prepared and maintained under the Bengal Land Registration Act, 1876. Here the reference to the register prepared or kept under the law for the time being in force was meant only to identify the particular register in which the particular land was included under one entry.

       In other words, the definition covers lands which are factually included in the particular register referred to. Whether they are "estates" within the meaning of the Bengal Land Registration Act, 1876, and whether they were validly or properly entered according to the provisions of that Ach is wholly irrelevant for the purpose of construing S. 2 (g) of the Abolition Act.

       (3) On the facts of the case, the plaintiffs land in the Rajgee or Killa of Kanika was an "estate" within the meaning of Section 2 (g) of the Abolition Act and the plaintiff who was a proprietor of that estate was an intermediary. -Bengal Land Registration Act (VII of 1876), Sections 3(2), 4,7 and 20.

       See under "Orissa Estates Abolition Act" post. 1.According to th is section "taxable turnover" amongst other items excluded sales to the Indian Stores Department, the Supply Department of the Government of India and any railway, or water transport administration. - Supreme Court Rules and practice-O. 18, Rr. 1 and 3 and O. 19, R. 4-Plea of estoppel not included in statement of case filed by respondent -If can be allowed to be raised.

       Held; Under O.18, R.1 no party to an appeal is entitled to be heard by the Court unless he has previously lodged his case in the appeal. Rule 3 lays down how the case is to be prepared and what its contents should be. Order 19, R.4 provides that the appellant shall not, without the leave of the Court rely at the hearing on any grounds not specified in the Statement of Case filed by him.

       There is no rule imposing corresponding disability on the respondent. Further even with regard to the appellant the Court may in appropriate cases, give him leave to raise a ground not specified in the Statement of Case. In the present case there is no question of surprise, for the plea of estoppel was pointedly raised and made the subject matter of an issue before the High Court and was elaborately dealt with by the High Court in its Judgment under appeal. In the circumstances it is not considered proper to shut out this plea of estoppel. - Section 11 and O. 23, R. 3-Consent decree-When operates as ,estoppal by judgment -Evidence Act (1872), Section 115•

       On 4-1-1936, the predecessor-in-title of the plaintiff brought a suit against the Secretary of State for India in Council, praying for a declaration that the plaintiff had a good and indefeasible title to the beds of certain rivers, by express or implied grant from the East India Company, alternatively for a declaration that the plaintiff had acquired an indefeasible right and title to the beds of the said rivers by prescription or adverse possession and for permanent injunction against the defendant restraining him from interfering with the rights of the plaintiff in the beds of the said rivers and the churs formed on them. The plaint and the judgment of the trial Court clearly indicated that the parties went to trial on the definite and well understood issue that the plaintiffs claim to the river beds was founded on his anterior title as an independent ruling Chief of Killa Kanika and that title had been confirmed by the Engagement and Kaoolnama of 1803, which were, in a loose way, construed as a grant of the river beds, express or implied, by the East India Company.

       The issue was found against the plaintiff and the suit was dismissed by the trial Court. In appeal to the High Court a compromise decree was passed. The compromise consisted of reciprocal concessions those made by one party being the consideration for those made by th~ other. It was on the basis of the concessions made by the plaintiffs predecessor, namely, that he was a Zamindar of a permanently settled estate, that the State gave up the benefit of the decree which had been paseed in its favour by the trial court and also the right to levy assessment on the accretions of future churs. One of the main considerations for the compromise was the clear admission on the part of the plaintiff in that case that his status in respect of Killa Kanika was nothing more than that of a proprietor of a permanently settled estate liable to pay land revenue. In the subsequent suit filed in 1952 the plaintiff claiming as the Raja and owner of Kanika Raj prayed for a declaration that his land was not an estate within the meaning of the Orissa Estates Abolition Act, 1952.

       Held: On the facts and circumstances of the case the compromise decree in the previous suit precluded the plaintiff from reasserting the title, which had been negatived by the compromise decree although it related only to his claim to a part of the lands, namely the beds of the rivers therein mentioned.