IMPORTANT POINTS
OEA Collector’s order without confirmation by the Board is non est.
Only raiyats are protected by section 8 of the Orissa Estate Abolition Act, 1951.
In case of unregistered deed of transfer / conveyance of immovable property, Section 49 of Registration Act and section 91 of Indian Evidence Act, 1872 preclude adducing of any further evidence of the terms and contents of such unregistered deed.
In terms of Proviso to Section 5(5) of the Orissa Tenancy Act, 1913 tenant holding more than 33 acres of land is presumed to be tenure holder and will not be protected by section 8 of the 1951 Act.
Fraud vitiates all transactions known to the law.

Headnote:(a) Orissa Estate Abolition Act, 1951 – Section 5(i) – OEA Collector holding lease in question to be prior to 1.1.1946 – Board of Revenue not confirming on ground of absence of detailed enquiry – OEA Collector’s order without confirmation by the Board is non est – The lease deed did not attain finality. (Para 11)
       1995 Supp (3) SCC 249 – Relied upon
       (b) Orissa Estate Abolition Act, 1951 – Section 8 – Lessee of Intermediary – Steps in the shoes of the intermediary – Becomes tenure holder – Does not become raiyat and hence not protected by section 8 – Instantly the case land not under cultivation of the lessee Kamala Devi, land being uncultivable – Kamala Devi not a raiyat. (Para 22, 24)
       (1963) 2 SCR 552 – Relied upon
       (c) Transfer of Property Act, 1882 – Section 107 r/w section 17, Indian Registration Act, 1908 – Mandatory registration of transfer of immovable property – Sections 15 and 16 of Orissa Tenancy Act, 1913 also requiring registration of the instrument of conveyance/agricultural lease – Lease executed by Hatapatta, unregistered document – Section 49 of Registration Act and section 91 of Indian Evidence Act, 1872 preclude adducing of any further evidence of the terms and contents thereof. (Para 23)
       AIR 1955 SC 328 – Relied upon
       (d) Orissa Tenancy Act, 1913 – Section 5(5), Proviso – Tenant holding more than 33 acres of land – Presumed to be tenure holder – Instantly, Hatapatta – Lease of more than 53.95 acres of land – Lessee presumed to be tenure-holder. (Para 25)
       (e) Words and Phrases – Fraud – Ingredients – Deceit and, benefit or advantage to the deceiver and/or injury to the person deceived – Deceit is fraudulent misrepresentation – Even if there is no injury to the deceived but benefit to the deceiver, it will be fraud – Suppression of a material document – Fraud on the court – Any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata – Conduct of fraud – By letter or words – Negligence can be evidence on fraud – Fraud vitiates all transactions known to the law – Power of attorney used to execute sale deed in favour of respondent – Tampered and manipulated – Sale deed would be presumed to be non est – Indian Penal Code, 1860 – Sections 420/468/471/ 477A/167/120B. (Para 33, 35, 39, 40, 41)
       1963 Supp. 2 SCR 585; (1996) 5 SCC 550; (1994) 1 SCC 1; (2003) 8 SCC 319; (1886-90) All ER 1; (1983) 1 All ER 765; (1992) 1 SCC 534; (2002) 1 SCC 100; (2003) 8 SCC 311; (2004) 3 SCC 1; (1996) 3 SCC 310; (1956) 1 QB 702 – Relied upon
       (f) Orissa Communal Forest and Private Lands (Prohibitions of Alienation) Act, 1948 – Section 3 – Bar on alienation of communal forest land – Case land also described in records as Jhudi jungle i.e. bushy forest – Intermediary could not have alienated the same by lease. (Para 43, 44)
       AIR 1970 SC 403 – Referred
       Facts of the case:
       A lease of 53.95 acres of land was allegedly executed by Hatapatta dated 25.1.1933 by erstwhile intermediaries i.e. Chakradhar Mohapatra and Ramakrushna Mohapatra in favour of one Kamala Devi. The respondent Harapriya Bishoi claimed to be the successor in interest of Kamala Devi.
       The estate of intermediaries Chakradhar Mohapatra and Ramakrushna Mohapatra is vested in the State. In respect of the land in question the Orissa Estate Abolition Case 4 of 1970 was registered which was finally transferred to OEA Collector, Bhubneshwar and was re-numbered as OEA Case No.4 of 1970.
       The OEA Collector set aside the disputed lease deed on the ground of not being genuine. The Ekpadia or Zamabandi Register in the Tahsil Officer had no mention of Kamala Devi as a lessee.
       By publication dated 6.12.1973 under settlement proceedings, the State was recorded as the owner/title holder of the entire land of 1056.8 acres under Khatian No.1076 of village Gadakana of which the disputed land is a part.
       The High Court directed the OEA Collector, Bhubneshwar to examine the matter afresh and also to ensure that the interest of the State was protected. The Collector heard the matter afresh and by order dated 24.4.1989 held that the lease was entered into prior to 1.1.1946. But he found that the claimant was only in possession of 7 acres of land and hence recommendation was made only for registering a settlement in respect of such 7 acres of land. The High Court quashed the order of the Collector directing settlement of portion of the leased property and declared the proceedings before the Board of Revenue to be non est.
       After the death of Kamala Devi, her purported successor Kishore Chandra Pattnaik filed a writ petition praying for a direction to the State to accept rent in respect of the disputed property.
       One Anup Kumar Dhirsamant who was the Power of Attorney holder of Kishore Chandra Pattnaik executed a sale deed dated 6.3.2000 covering 23.30 acres of land on behalf of the latter in favour of the present respondent who is also the mother of Dhirsamant. Thus, the respondent came into the picture as a vendee of Kishore Chandra Pattnaik who in turn is the son of Kamala Devi. Kishore Chandra Pattnaik claimed that the original power of attorney did not empower the holder to sell the land. His plea was that the aforesaid sale was in pursuance of a forged and interpolated document.
       The record of rights in favour of GA Department was directed not to be interfered with. The respondent also filed a Civil Suit for a declaration of right, title and interest in respect of disputed land.
       Respondent filed OJC 8282 of 2004 seeking a direction to the State to accept rent from her in respect of the case land, for a declaration of tenancy in her favour and for an injunction against the State restraining them from interfering with her possession. By order dated 27.10.2005 the High Court allowed the writ petition and that is the subject matter of challenge in one of the present appeals.
       Finding of the Court:
       High Court failed to consider necessary aspects.
       Result:
       Appeal allowed. Matter remitted back to High Court for fresh hearing.

Judgment :

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in these appeals is to the order passed by a Division Bench of the Orissa High Court allowing the writ petition filed by the respondent in Writ Petition (C) No.8282/2004 dated 27.10.2005 and the order dated 10.1.2007 passed in the Review Petition No.13/2006 arising out of said writ petition.

2. The background facts as highlighted by the appellants are as follows:

The dispute relates to an alleged lease of 53.95 acres of land executed by Hatapatta dated 25.1.1933 by erstwhile intermediaries i.e. Chakradhar Mohapatra and Ramakrushna Mohapatra in favour of one Kamala Devi. The respondent Harapriya Bishoi claimed to be the successor in interest of Kamala Devi. Undisputedly, the alleged Hatapatta is an unregistered document. The land is presently situated in the capital city of Bhubaneswar in the State of Orissa. The purported Hatapatta described the land as being for permanent cultivation but as per records or rights published in 1930-31 the land is classified as "uncultivable" within Anabadi Land. The land is further described as Jhudi jungle i.e. bushy forest. The estate of intermediaries Chakradhar Mohapatra and Ramakrushna Mohapatra is vested in the State by virtue of a Notification dated 1.5.1954 issued under Section 3 of the Orissa Estate Abolition Act, 1951 (in short the `Act). In respect of the land in question the Orissa Estate Abolition Case 4 of 1970 was registered. Originally the case was registered as OEA 18 of 1967 with OEA Collector, Cuttack. On transfer of certain villages from Cuttack district to Puri District, the case was transferred to OEA Collector, Bhubneshwar and was re-numbered as OEA Case No.4 of 1970.

By order dated 6.1.1971 in the said OEA case the OEA Collector set aside the disputed lease deed on the ground of not being genuine. The Collector found that since the lands were lying fallow, the rent receipts were not genuine. The Ekpadia or Zamabandi Register in the Tahsil Officer had no mention of Kamala Devi as a lessee.

The lease was unregistered even though vast tracts of land were transferred. It was thus held that the lease deed was back dated and was created with the object of defeating the purpose of the Act. The said order dated 6.1.1971 was upheld by Additional District Magistrate, Puri by order dated 28.5.1974.

Between the period 1962 to 1973 settlement proceedings were carried out under the Orissa Survey and Settlement Act, 1958 (in short the `Settlement Act). By publication dated 6.12.1973, the State was recorded as the owner/title holder of the entire land of 1056.8 acres under Khatian No.1076 of village Gadakana of which the disputed land is a part. Further, by Revenue Department Notification No.13699-EA-1- ND-1/74/R published in the Extraordinary Gazette No.371 dated 18.3.1974, the Government of Orissa notified that the intermediaries interest of all intermediaries in respect of all estates other than those which have vested in the State have passed to and became vested in the State free from all encumbrances.

The order dated 28.5.1974 was challenged before the Orissa High Court by filing OJC No.882 of 1974. The High Court by order dated 29.10.1976 directed the OEA Collector, Bhubneshwar to examine the matter afresh by issuing notice to the lessor and the lessee and also to ensure that the interest of the State was protected. Pursuant to the order of the High Court dated 29.10.1976 remanding the matter to the OEA Collector, the Collector heard the matter afresh and by order dated 24.4.1989 held that the lease was entered into prior to 1.1.1946. But he found that the claimant was only in possession of 7 acres of land and hence recommendation was made only for registering a settlement in respect of such 7 acres of land. Significantly, the General Administration Department (in short GA Department) was not brought on record in the proceedings. The record was then submitted to the Board of Revenue. By order dated 27.4.1991, the

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2009 Supreme(SC) 775

Cases Referred (7)