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Orissa High Court
R. N. MISRA, K. B. PANDA AND P. K. MOHANTI, JJ.
Krupasindhu Misra - Appellant
Versus
Gobinda Chandra Misra - Respondents
Second Appeal No. 253 of 1974
Decided On : 12 August 1980
ESTATES ABOLITION ACT - SETTLEMENT - NOTICE - SERVICE - PUBLICITY - MANDATORY - FORM OF NOTICE - DIRECTORY - SELECTION OF CONSPICUOUS PLACES - NOT MANDATORY - SUBSTANTIAL COMPLIANCE - SUFFICIENT - EVIDENCE ACT, S. 114, ILLUS. (E) - PRESUMPTION - REGULARLY PERFORMED - REBUTTABLE.
Fact of the Case:
Plaintiff claimed that he and his co-sharer purchased plot No. 2441 along with certain other properties in the year 1940 and ever since then they have been in possession as owners. In a partition between the co-sharers made subsequently the disputed property came to the plaintiff as exclusive owner. On a part of this plot he raised a house and continued to enjoy the vacant site as a threshing-floor. Plaintiff being an advocate s clerk usually stayed away from home. Defendant No. 1 happens to be the owner of plot No. 2442 adjoining the disputed property on the south. The property covered by plot No. 2441 vested in the State under the provisions of the Orissa Estates Abolition Act, 1951, and on an appropriate application under Chapter-II thereof, the same has been settled with the plaintiff and defendants 2 and 3. Defendant No. 1 constructed a boundary wall sometime in 1963 encroaching upon a part of plaintiff s land covered by Ka schedule of the plaint. He also disturbed plaintiff s enjoyment of the property in the Kha schedule. This led to the institution of the suit.
Finding of the Court:
The notice under Section 3-A(2), Proviso of the Act is mandatory. The manner and form of notice is directory. By the bare fact that the Collector had not selected the conspicuous places where notice by posting of placards had to be given, the order of settlement does not become vitiated. It is open to the Collector to be satisfied on the basis of the service report that there has been substantial compliance with the provision and in such a case notice would be sufficient. Reference to Rule 3 of the Estates Abolition Rules in the second of the Bench decisions (1973) 2 Cut WR 1026 was uncalled for as it had no application. The two single Judge decisions (AIR 1974 Orissa 194 and (1976) 42 Cut LT 143) had omitted to take note of Section 114, Illus. (e) of the Evidence Act, and placing the burden on the successful party to prove the settlement upon a bare denial of the adversary is a proposition not supportable by law.
Issues: 1. Whether the notice under Section 3-A(2), Proviso of the Act is mandatory or directory? 2. Whether the form of notice is mandatory or directory? 3. Whether the selection of conspicuous places for posting of placards is mandatory? 4. Whether substantial compliance of the provision is sufficient? 5. Whether the burden of proof lies on the successful party to prove the settlement upon a bare denial of the adversary?
Ratio Decidendi: 1. The notice under Section 3-A(2), Proviso of the Act is mandatory. The manner and form of notice is directory. 2. By the bare fact that the Collector had not selected the conspicuous places where notice by posting of placards had to be given, the order of settlement does not become vitiated. It is open to the Collector to be satisfied on the basis of the service report that there has been substantial compliance with the provision and in such a case notice would be sufficient. 3. Reference to Rule 3 of the Estates Abolition Rules in the second of the Bench decisions (1973) 2 Cut WR 1026 was uncalled for as it had no application. 4. The two single Judge decisions (AIR 1974 Orissa 194 and (1976) 42 Cut LT 143) had omitted to take note of Section 114, Illus. (e) of the Evidence Act, and placing the burden on the successful party to prove the settlement upon a bare denial of the adversary is a proposition not supportable by law.
Final Decision: The second appeal should now go back to a learned single Judge for disposal. Parties would bear their own costs before us.
Judgement
R. N. MISHRA, J. :- Legal representatives of the original plaintiff have brought this appeal against the reversing judgement and decree of the learned Additional District Judge of Cuttack in a suit for title, possession and recovery of damages as also mesne profits. Plaintiff claimed that he and his co-sharer (the second defendant) purchased plot No. 2441 with an area of 60 decimals along with certain other properties in the year 1940 and ever since then they have been in possession as owners. In a partition between the co-sharers made subsequently the disputed property came to the plaintiff as exclusive owner. On a part of this plot he raised a house and continued to enjoy the vacant site as a threshing-floor. Plaintiff being an advocate s clerk usually stayed away from home. Defendant No. 1 happens to be the owner of plot No. 2442 adjoining the disputed property on the south. The property covered by plot No. 2441 vested in the State under the provisions of the Orissa Estates Abolition Act, 1951, and on an appropriate application under Chapter-II thereof, the same has been settled with the plaintiff and defendants 2 and 3. Defendant No. 1 constructed a boundary wall sometime in 1963 encroaching upon a part of plaintiff s land covered by Ka schedule of the plaint. He also disturbed plaintiff s enjoyment of the property in the Kha schedule. This led to the institution of the suit.
2. Defendant No. 1 alone entered contest and maintained that the disputed property was a part of his plot 2442; he had raised his house along with a compound wall in 1948 and beyond the compound wall of his lay a passage with five links width on which defendant carried paddy sheaves and straw to his threshing-floor from his lands. Even if the disputed land had once formed part of plaintiff s plot, plaintiff has lost title to it on account of defendant s adverse possession for more than the statutory period. In an additional written statement, he disputed the settlement under the provisions of the Orissa Estates Abolition Act on the score that there was no compliance of the procedure laid down under S.8-A of the Act and, therefore, plaintiff was not entitled to have support for his title from such settlement.
3. The trial court decreed the suit holding that plaintiff had title to the property and directed removal of the encroachment on the Ka schedule property. It also decreed recovery of possession of the Kha schedule land. With regard to the settlement by the Estate Abolition Collector, the trial court observed :-
"...... But in view of the evidence of the Peon himself and P.Ws. 9 and 10, it appears that the Peon had read out the notice at the village where the suit land is situated by beat of drums and at the Hat place and hung the copy of the notice on the banian tree standing thereon. The evidence of these two P.Ws. namely 9 and 10 supporting the Peon s version is sufficient to hold that by beat of drums and by reading out the copy of the notices at three places of village and by hanging the copy on the banian tree at Hat area, which is the conspicuous place of the locality, the Peon had served the notice in the locality."
4. On defendant No. 1 s appeal, the learned Additional District Judge appraised the evidence again and concluded :-
"...... I would therefore hold in conclusion while agreeing with the finding of learned trial court that the process-server (P.W. 7) actually went to the village and served the notice by reading out the contents of the same at three places of the village by beat of drum and by hanging a copy of the notice on a banian tree at the local hat."
The proviso to Section 8-A(2) of the Abolition Act which reads thus was then referred to -
"Provided that the Collector shall, as soon as may be after any such claim under Sub-Section (1) or Sub-Section (2) 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 fr
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