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HIGH COURT OF ORISSA
G. K. Misra, J.
NATA PADHAN - Appellant
Versus
BANCHHA BARAL - Respondent
Second Appeal 313 Of 1964
Decided On : April 10, 1967
TENANCY RIGHTS - TRANSFER OF LAND - LIS PENDENS - TENANT'S RIGHT TO CULTIVATE - EVICTION - POSSESSION - LIMITATION ACT - ADVERSE POSSESSION - SECTION 145, CR. P. C. - INTERIM ORDER - TITLE BY ADVERSE POSSESSION.
Fact of the Case:
The plaintiff filed a suit for declaration of occupancy rights and confirmation of possession. The defendants contested the suit claiming that they are bhag tenants in respect of the disputed land and are all through in possession and that the plaintiffs have neither title nor possession. The courts below decreed the plaintiffs' suit. Against the confirming judgment the second appeal has been filed.
Finding of the Court:
The transfer of the suit lands by Gopal Satapathy in favour of defendant-4 was genuine and valid. The final decision of the Revenue Court in the O. T. P. Act proceedings does not operate as res judicata and this suit for declaration of occupancy rights of the plaintiffs is maintainable. Failure of defendants 1 to 3 to file a suit for possession within three years under Art. 47 of the Limitation Act from 10-3-53, when the final order in the proceeding Under Section 145, Cr. P. C. (hereinafter referred to as the 145 proceeding) was passed, resulted in execution of their title and acquisition of title by the plaintiffs. Plaintiffs acquired occupancy rights in the suit lands and are in possession from 1951 till the date of the suit.
Issues: 1. Whether the transfer of the suit lands by Gopal Satapathy in favour of defendant-4 was genuine and valid? 2. Whether the final decision of the Revenue Court in the O. T. P. Act proceedings operates as res judicata and this suit for declaration of occupancy rights of the plaintiffs is maintainable? 3. Whether the failure of defendants 1 to 3 to file a suit for possession within three years under Art. 47 of the Limitation Act from 10-3-53, when the final order in the proceeding Under Section 145, Cr. P. C. (hereinafter referred to as the 145 proceeding) was passed, resulted in execution of their title and acquisition of title by the plaintiffs? 4. Whether the plaintiffs acquired occupancy rights in the suit lands and are in possession from 1951 till the date of the suit?
Ratio Decidendi: 1. The transfer of the suit lands by Gopal Satapathy in favour of defendant-4 was genuine and valid and was not hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act, as the proceedings started by defendants 1 to 3 against Gopal Satapathy were not collusive and the right to immovable property was directly and specifically in question. 2. The final decision of the Revenue Court in the O. T. P. Act proceedings does not operate as res judicata and this suit for declaration of occupancy rights of the plaintiffs is maintainable, as the plaintiffs were not parties to the proceedings and were not bound by the final order. 3. The failure of defendants 1 to 3 to file a suit for possession within three years under Art. 47 of the Limitation Act from 10-3-53, when the final order in the proceeding Under Section 145, Cr. P. C. (hereinafter referred to as the 145 proceeding) was passed, resulted in execution of their title and acquisition of title by the plaintiffs, as the final order in the 145 proceeding was an interim order and was subject to the result of the civil suit or proceeding. 4. The plaintiffs acquired occupancy rights in the suit lands and are in possession from 1951 till the date of the suit, as they were inducted as tenants by defendant-4 after his purchase and the final order in the 145 proceeding was in their favour.
Final Decision: The judgments of the courts below are set aside and the suit is dismissed. The second appeal is allowed, but in the circumstances, parties to bear their own costs throughout.
G. K. MISRA, J.
( 1 ) THE material facts may be stated in chronological order to bring out the points of controversy into bold relief. On 14-4-1950 defendants 1 to 3 filed an application under the Orissa Tenants Protection Act in Misc. Case No. 3 of 50-51 alleging that they were bhag tenants under late Gopal Satapathy and were in possession of the disputed lands on 1-9-1947. On 9-5-50 Gopal Satapathy executed a registered sale deed (Ex, 6) in favour of Biswanath Mohapatra (defendant-4) in respect of the disputed lands. On 13-5-1950 defendant-4 executed a Patta (Ex, 4) inducting the plaintiffs as bhag tenants for cultivating the disputed lands for one year. A proceeding Under Section 145, Cr. P. C. was started between the plaintiffs and defendants 1 to 3 in Misc. Case 4/51. Preliminary order was passed on 6-1-51. On 17-1-51 Misc. Case No. 3/50-51 was decided against defendants 1 to 3 by the trial court. By an order (Ex. A) dated 5-3-51 Misc. Appeal No. 205/1950-51 filed by defendants 1 to 3 against the order of the O. T. P. Collector dated 17-1-51 was allowed. On 10-3-53 final order in Misc. Case No. 4 of 1950-51 Under Section 145, cr. P. C. was passed. The substantive part of this order (Ex. 2) may be quoted--I, therefore, find the first party Banchchaha Barah to be in possession of the land on the relevant date and two months prior to and declare him to be in such possession and order that his possession shall not be disturbed until he is evicted in due course of law. I also hereby prohibit the second party members not to interfere with such possession of the first party until they get him evicted from the land. This order shall of course be subject to the order of the Hon'ble High Court which may be passed in revision matter pending before it. An application by defendants 1 to 3 tor appointment of receiver against gopal Satapathy in O. S. 82/53 in the Court of the Munsif, Puri, was dismissed by an order (Ex. 3) dated 20-12-54. Again Misc. Case No. 143 of 1951 Under Section 145, Cr. P. C. was started between the parties, but the proceeding Under Section 145 (1) was cancelled in view of the fact that there was an order in the previous proceeding Under Section 145. Cr. P. C. On 11-5-56 Gopal Satapathy's revision to the Board of revenue against the appellate order (Ex. A) in the O. T. P Act case was dismissed as per order (Ex. C ). On 11-9-57 O. S. 82/53 filed by the defendants against Gopal Satapathy about their Bhagchasi right was dismissed for default in the presence of the plaintiffs. On 19-11-58 the present suit was filed. Plaintiffs asked for declaration of their right of occupancy and for confirmation of possession. Defendants contested the suit claiming that they are bhag tenants in respect of the disputed land and are all through in possession and that the plaintiffs have neither title nor possession. The courts below decreed the plaintiffs' suit. Against the confirming judgment the second appeal has been filed.
( 2 ) THE concurrent findings are--
(i) The transfer of the suit lands by Gopal Satapathy in favour of defendant-4 was genuine and valid.
(ii) The final decision of the Revenue Court in the O. T. P. Act proceedings does not operate as res judicata and this suit for declaration of occupancy rights of the plaintiffs is maintainable.
(iii) Failure of defendants 1 to 3 to file a suit for possession within three years under Art. 47 of the Limitation Act from 10-3-53, when the final order in the proceeding Under Section 145, Cr. P. C. (hereinafter referred to as the 145 proceeding) was passed, resulted in execution of their title and acquisition of title by the plaintiffs.
(iv) Plaintiffs acquired occupancy rights in the suit lands and are in possession from 1951 till the date of the suit.
( 3 ) THE finding that the transfer by Gopal Satapathy in favour of defendant-4 is genuine and not benami is a pure finding of fact and cannot be assailed in second appeal. The transfer included both the landlord's and tenant's in
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