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High Court Of Orissa
R. N. Misra, J.
ANANTA JENA - Appellant
Versus
DEITY SHRI GOPINATH JEW - Respondent
Misc. Appeal 90 Of 1977
Decided On : 06/30/1978
ORISSA ESTATES ABOLITION ACT - SECTION 5, 7, 7-A, 8, 8-A - VESTING OF ESTATE - EFFECT ON DECREE FOR EVICTION - DECREE-HOLDER'S RIGHT TO EXECUTE DECREE - SETTLEMENT OF LAND WITH DECREE-HOLDER - EXTINGUISHMENT OF RIGHT TO POSSESSION OF JUDGMENT-DEBTOR.
Fact of the Case:
The decree-holder obtained a decree for possession of the disputed property by evicting the judgment-debtor and for recovery of mesne profits. The judgment-debtor challenged the executability of the decree by filing an application under Section 47 of the Civil P. C. The executing court dismissed the objection. On appeal, the learned Subordinate Judge upheld the dismissal. Hence this second appeal.
Finding of the Court:
The court held that the decree-holder was entitled to execute the decree as the judgment-debtor was a trespasser and the decree-holder had obtained a settlement of the land from the Estates Abolition Collector.
Issues: Whether the decree-holder was entitled to execute the decree after the vesting of the estate in the State of Orissa under the Orissa Estates Abolition Act.
Ratio Decidendi: The court held that the statutory scheme of the Orissa Estates Abolition Act was that when a vesting notification is made, an ex-intermediary to whom Section 7 applies is not evicted and he is entitled to hold the land and remain in possession unaffected by the vesting on the basis of a 'deemed settlement'. His right to possession terminates if he fails to make a claim within the prescribed period in terms of Section 8-A, Sub-section (3)whereof provides that such a defaulting ex-intermediary becomes liable for eviction in terms of Section 5 (h) of the Act.
Final Decision: The court dismissed the appeal and held that the decree-holder was entitled to execute the decree.
R. N. MISRA, J.
( 1 ) THIS is a judgment-debtor's appeal against the affirming appellate order of the learned Subordinate Judge of Nayagarh.
( 2 ) THE decree-holder-respondent obtained a decree in Title Suit No. 14/51 of 1972/71 in the court of the Munsif, Nayagarh for recovery of possession of the disputed property by evicting the judgment-debtor and for recovery of mesne profits. It levied execution of the said decree in Execution Case No. 18 of 1974. On notice, the judgment-debtor challenged the executability of the decree by filing an application under Section 47 of the Civil P. C, which came to be registered as M. J. C. No. 2 of 1975. The executing court dismissed the objection. On appeal, the learned Subordinate Judge upheld the dismissal. Hence this second appeal.
( 3 ) THE sole contention of Mr. Pal for the judgment-debtor-appellant is that the lands from which the judgment-debtor was to be evicted constituted an estate and the same having already vested in the State of Orissa under the Orissa estates Abolition Act (hereinafter referrred to as the 'act'), the decree-holder was not entitled to execute the decree.
( 4 ) THE brief facts to appreciate the point are these: The decree of the trial court as already noted is dated 10-12-1972. The judgment-debtor carried an appeal which was dismissed on 25-3-1974. He preferred a second appeal which was dismissed at the stage of hearing under Order 41, Rule 11 of the Civil P. C. on 9-7-1974. The estate vested on 18th of March, 1974. The question of loss of title of the decree-holder had not been canvassed in the appeals. The application of the decree-holder was registered as Vesting Case No. 214 of 1974-75 and on 24-1-1976, the Collector under the Act directed settlement of the property in dispute with the decree-holder and the status of the decree-holder has been treated to be that of an occupancy tenant, Mr. Pal maintains that the decree-holder had obtained the decree in the status of an estate holder against the judgment-debtor who has been found to be a trespasser. The decree-holder is, therefore, not entitled to proceed with the execution on the basis of the settlement obtained from the Estates Abolition Collector. Mr. Pal places reliance on certain Supreme Court decisions in support of his stand. See haji Sk. Subhan v. Madharao, AIR 1962 SC 1230; Ahmad Hafiz Khan v. Mohammad Hasan Khan, AIR 1967 SC 354; Shivashankar Prasad Sah v. Baikunth Nath Singh, AIR 1969 SC 971 and Vidya Sagar v. Smt. Sudesh Kumari, air 1975 SC 2295, The ratio of none of these cases is applicable to the facts of the present case. In most of the decisions of the Supreme Court, the title of the decree-holder was lost by abolition and there was no fresh settlement; whereas here, admittedly there has been a settlement in favour of the decree-holder. The relevant provisions of the Act may now be referred to. The consequences of vesting are provided in Section 5, which reads:-"notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification in the Gazette under Sub-section (1) of Section 3 or Sub-section (1)of Section 3-A or from the date of the execution of the agreement under Section 4, as the case may be, the following consequences shall ensue, namely.- (a) subject to the subsequent provisions of this Chapter the entire estate including all communal lands and porambokes, other non-raiy ati lands,. . . . . shall vest absolutely in the state Government free from all encumbrances and such intermediary shall cease to have any interest in such estate other than the interests expressly saved by or tinder the provisions of this Act; explanation. . . . . . . . .
" section 7, which is a subsequent provision of the same Chap. II, provides;- (1) On and from the date of vesting:- (a) All lands used for agricultural or horticultural purposes which were in Khas possession of an intermediary on the date of such vesting, (b) lands used for ag
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