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High Court Of Orissa
D. Pathak, C. J. , P. K. Mohanti And J. K. Mohanti, JJ.
RADHAMANI DIBYA - Appellant
Versus
BRAJA MOHAN BISWAL - Respondent
First Appeal 127 Of 1970
Decided On : 10/29/1983
BHAGCHASIS - TENANCY - ORISSA TENANCY ACT, 1913 - SECTIONS 3 (23), 4, 5, 23, 24, 30, 234 - ORISSA ESTATES ABOLITION ACT, 1951 - SECTION 8 (1) - A bhagchasi can be a tenant under Section 3 (23) of the Orissa Tenancy Act, 1913.
Fact of the Case:
The dispute arose over the occupancy rights of certain suit lands. The plaintiffs claimed occupancy rights as the legal heirs of Pravakar Biswal, who had been in possession of the lands as a bhagchasi (crop-sharing tenant) under the ex-proprietors. The defendants, who were the ex-landlords and their transferees, contested the plaintiffs' claim, arguing that Pravakar was not a tenant but a mere licensee and that they had acquired occupancy rights through a registered permanent lease deed.
Finding of the Court:
The court held that Pravakar was a tenant under the ex-proprietors and that he had acquired occupancy rights in the suit lands by virtue of his continuous possession for more than twelve years. The court also held that the defendants had not acquired any occupancy rights through the registered permanent lease deed, as it was a colourable transaction and had not been acted upon.
Issues: 1. Whether a bhagchasi can be a tenant under Section 3 (23) of the Orissa Tenancy Act, 1913? 2. Whether Pravakar had acquired occupancy rights in the suit lands? 3. Whether the defendants had acquired occupancy rights through the registered permanent lease deed?
Ratio Decidendi: 1. The court held that a bhagchasi can be a tenant under Section 3 (23) of the Orissa Tenancy Act, 1913, if he holds land under another person and is liable to pay rent for that land. The court noted that Pravakar held the suit lands under the ex-proprietors and was liable to pay the price of bhag produce to them, and that this constituted a contract of tenancy. 2. The court held that Pravakar had acquired occupancy rights in the suit lands by virtue of his continuous possession for more than twelve years. The court noted that Pravakar had been in possession of the lands since 1946 and that he had continued to possess them after the estate vested in the State Government in 1954. The court also held that Pravakar was a settled raiyat under Section 23 of the Orissa Tenancy Act, 1913, and that he had therefore acquired occupancy rights under Section 24 of the Act. 3. The court held that the defendants had not acquired occupancy rights through the registered permanent lease deed. The court noted that the lease deed was a colourable transaction and had not been acted upon. The court also held that the defendants had failed to prove that they had been in possession of the suit lands for more than twelve years.
Final Decision: The court dismissed the defendants' appeal and upheld the trial court's decree declaring the plaintiffs' occupancy right in the suit lands.
P. K. MOHANTI, J.
( 1 ) THIS appeal is directed against a decree declaring the plaintiffs' occupancy right to the suit lands and confirming their possession over came. The question of law that arises for consideration is whether a bhagchasi is a tenant under the Orissa Tenancy Act, 1913: In the first instance, the appeal came up before a Division Bench to which one of us (P. K. Mohanti, J.) was a party. The Division Bench felt it desirable to place the appeal before a larger Bench in view of the conflict between the judgments of two different Division Benches of this Court regarding the status of a bhagchasi. That is how the entire appeal has been placed before us for disposal.
( 2 ) THE suit lands measuring 5. 70 acres as described in Schedule B of the plaint appertained to Anabadi Khata No. 192 under Tauzi No. 2390 in mauza San Bhubanpur. Defendant No. 1 Maheswar Dobai, Krushna Chandra Dobai, the father of defendants 2 and 3 and Mayadhar Dobai, the father of defendants 4 to 6 were the co-sharer landlords of the tauzi having one-third share therein. They granted leases of the suit lands from time to time for cultivation purposes to late Pravakar Biswal, the father of the plaintiffs. He was in continuous possession from 17-4-1946 till his death which occurred on 4-12-1964. The tauzi vested in the State Government on 1-4-1054. While Pravakar was in possession as a bhagehasi, defendants 1 to 3 and Mayadhar, the father of defendants 4 to 6 wanted to evict him forcibly for which he filed to O. T. P. Case No. 28 of 1950 for protection against eviction. The Sub-divisional Officer of Jaipur allowed the case holding that Pravakar Biswal was a bhagtenant under the landlords and that he was entitled to protection against eviction under Section 7 (6) of the O. T. P. Act. After abolition of the estate, defendants 7 and 8 filed an application under Section 8 (1) of the Orissa Estates Abolition Act for a declaration of their occupancy right on the basis of a registered permanent lease deed dated 2-21944--Ext. D executed, in their favour by the ex-landlords. The Tahasildar of Jaipur rejected the application holding that Ext. D was a colourable transaction and had not been acted upon. Aggrieved by this decision, defendants 7 and 8 preferred Orissa Estates Abolition Appeal No. 83/65 before the Additional District Magistrate, Cuttack who set aside the decision of the Tahasildar and recognised the tenancy of defendants 7 and 8 vide his order daied 2-2-1966 Ext. F. Thereafter the plaintiff filed the suit on 23-10-1967 for declaration of their occupancy right and confirmation of possession in order to remove the cloud thrown on their titie by the aforesaid order--Ext. F.
( 3 ) DEFENDANTS 1 to 5 did not contest the suit. The pleader guardian for the minor defendant No. 6 filed a formal written statement denying the plaint allegations and putting the plaintiffs to strict proof of their case.
( 4 ) THE stand taken by defendants 7 and 8 was that the suit lands were leased out to them by a registered permanent lease deed dated 2-2-44--Ext. D by the ex-landlords and possession was duly delivered to them and they have been in actual physical possession since the date of the lease on payment of rent. They claimed to have acquired occupancy right in the suit land,
( 5 ) DEFENDANT No. 9, the State of Orissa filed written statement admitting the status of pravakar as a bhagtenant and his continuous possession over the lands as a lessee during his lifetime. It also admitted that after the death of Pravakar, the plaintiffs have been to possession and contended that defendants 7 and 8 were never in possession. It however pleaded that the suit was liable to be dismissed in view of the decision of the Additional District Magistrate as per Ext. F.
( 6 ) DEFENDANTS 16 to 14 who are purchasers of the suit lands from defendants 7 and 8 contended that their vendors were all along in possession since the date of the lease deed--Ext. D and they have acquired good t
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