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High Court Of Orissa
P. K. MISRA
STATE OF ORISSA - Appellant
Versus
BHANU MALI (DEAD) NURPA BEWA - Respondent
Second Appeal 83 Of 1988
Decided On : 03/29/1996
ORISSA PREVENTION OF LAND ENCROACHMENT ACT, 1972 - SECTION 16 - JURISDICTION OF CIVIL COURT - RES JUDICATA - EXPLANATION VIII TO SECTION 11 OF THE CODE OF CIVIL PROCEDURE - COURT OF LIMITED JURISDICTION - DECISION ON JURISDICTIONAL FACTS - FINALITY - TITLE DISPUTE - SUMMARY REMEDY - JURISDICTION OF CIVIL COURT - RES JUDICATA.
Fact of the Case:
Plaintiffs filed a suit for declaration of title, confirmation, or in the alternative, recovery of possession of disputed land. The defendant challenged the jurisdiction of the civil court, claiming that the matter should be decided under the Orissa Prevention of Land Encroachment Act, 1972. The plaintiffs argued that the civil court had jurisdiction to decide the title dispute and that the order of eviction under the Act was not final.
Finding of the Court:
The court held that the civil court had jurisdiction to decide the title dispute and that the order of eviction under the Act was not final. The court found that the plaintiffs were in long possession of the land and that the State's action in deleting their names and incorporating its own name in a rent abatement proceeding was under challenge. The court also held that the decision of the Revenue Officer in the eviction proceeding could not operate as res judicata in the subsequent suit, as a court of limited jurisdiction cannot assume jurisdiction by wrongly deciding jurisdictional facts.
Issues: 1. Whether the civil court had jurisdiction to decide the title dispute. 2. Whether the order of eviction under the Act was final. 3. Whether the decision of the Revenue Officer in the eviction proceeding could operate as res judicata in the subsequent suit.
Ratio Decidendi: 1. The civil court had jurisdiction to decide the title dispute, as the title of the State in respect of the disputed land was in question and the State's action in deleting the plaintiffs' names and incorporating its own name in a rent abatement proceeding was under challenge. 2. The order of eviction under the Act was not final, as the summary remedy prescribed by the Act was not suited to an adjudication of complicated questions of title. 3. The decision of the Revenue Officer in the eviction proceeding could not operate as res judicata in the subsequent suit, as a court of limited jurisdiction cannot assume jurisdiction by wrongly deciding jurisdictional facts.
Final Decision: The court dismissed the appeal and upheld the decision of the lower court.
P. K. MISRA, J.
( 1 ) DEFENDANT, is the appellant against a confirming judgment in a suit for declaration of title, confirmation, or in the alternative, recovery of possession.
( 2 ) THE plaintiffs' case is as follows: The plaintiffs are the descendants of Shiva Mali, The disputed land measuring Ac. 3. 02 decimals consisting of five plots as described in the plaint schedule is a part of Current Settlement Khata No. 84 of the year 1955-56. Khata No. 84 measuring Ac. 12. 58 decimals was recorded in the names of three sons of Shiva Mali, namely Bhanu Mali (plaintiff No. 1), Kanhu Mali and Tila Mali (plaintiff of No, 4), Plaintiffs 2 and 3 being the daughters of Kanhu Mali are his successors. During 1970-71, the Tehsildar, Dharamgarh, initiated Encroachment case No. 192/-70-71 against original plaintiff No. 1 alone in respect of plot Nos. 210 and 214, which are part of the disputed land. Plaintiff No. 1 on enquiry, discovered that the disputed lands have been deleted from original Khata No. 84 and were recorded in the name on State of Orissa in a rent abatement proceeding of the Collector, Kalehandi, by order dated 29-3-1961, It is the case of the plaintiffs that the aforesaid rent abatement proceeding was taken up at the back of the plaintiffs and the plaintiffs are continuing in possession of the disputed lands along with other lands which were part of Khata 84. Accordingly, the Plaintiffs issued notice under Section 80 of the Code of Civil Procedure, indicating the aforesaid facts. Since there was no reply, the plaintiffs filed the suit claiming declaration of title and confirmation, or in the alternative, recovery of possession.
( 3 ) THE defendant filed written statement challenging the averments made in the plaint. The jurisdiction of the civil Court to entertain the suit in view of Section 16 of the Orissa Prevention of Land Encroachment Act, 1972 (hereinafter referred to as the "act"), was questioned. It was specifically pleaded that after the initiation of encroachment case No. 192/70-71 against plaintiff No. 1, the latter voluntarily vacated the disputed lands during 1975.
( 4 ) DURING the pendency of the suit, original plaintiff No. 1, Bhanu Mali, expired and his widow, three sons and three daughters were substituted as plaintiffs 1 (a) to 1 (g ). ( 5 ) THE trial Court framed seven Issues including Issue No. 2 relating to the jurisdiction of the civil Court. It found that the plaintiffs were in continuous possession of the disputed lands all along and had title in respect thereof. It was further found that the order of the Collector dated 29-3-1961 deleting the disputed plots from the current settlement Record of Rights standing in the names of the plaintiffs was illegal and improper and was not within the knowledge of the plaintiffs. It was further observed that the defendant had failed to prove that original plaintiff No. 1 had vacated plot Nos. 210 and 214 as claimed in the written statement. The suit was found to be maintainable and in time. The trial Court also recorded the finding that no evidence had been led, nor any argument advanced as to why civil Court had no jurisdiction to try the suit and accordingly, the said issue was answered in the affirmative.
( 6 ) IN appeal preferred by the defendant, it appears that two points, one relating to limitation and the other relating to non-payment of proper court-fee for the relief of confirmation of possession, or in the alternative, recovery of possession, were pressed into service. Both the contentions were repellled by the lower appellate court. The lower appellate court also incidentally found that the claim of the defendant that plaintiff No. 1 had voluntarily given up possession in 1975 had not been substantiated. The other findings of the trial Court were affirmed in a general manner and the appeal was dismissed.
( 7 ) IN second appeal, while admitting the appeal, the following substantial question was formulated: -"whether the Civil Court has jurisdiction
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