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High Court Of Orissa
G. B. PATTANAIK
CHANDRA SEKHAR DAS - Appellant
Versus
GIRIDHARI SAHU - Respondent
First Appeal 162 Of 1976
Decided On : 07/20/1989
ORISSA ESTATES ABOLITION ACT - SIKMI TENANTS - RIGHTS - EXTINGUISHMENT - POSSESSION - ADVERSE POSSESSION - BURDEN OF PROOF - SALE DEED - VALIDITY - PRIOR PERMISSION OF STATE - NECESSITY - ESTATE ABOLITION COLLECTOR'S ORDER - VALIDITY - CIVIL COURT'S JURISDICTION.
Fact of the Case:
Plaintiffs filed a suit for declaration of their title and confirmation of possession as well as for permanent injunction restraining the defendants from interfering with their possession. The properties in dispute were Brahmottar Niskar land and Pahi land. The plaintiffs claimed title through adoption, mutation, and purchase. The defendants claimed settlement of the Brahmottar land and adverse possession.
Finding of the Court:
1. The sikmi tenants in the ex-State of Baramba had occupancy right on the land and, therefore, derived the status of non-evictability therefrom. 2. The order of the Ruler dated 7-10-1939 divested the sikmi tenants of all their rights in the land in question. 3. The plaintiffs were in possession of the disputed land and it is only after the order under S. 145 of the Cr. P. C. the defendants came to possess the land. 4. The defendants have not adduced any evidence in support of their case of possession. 5. The conclusion of the Subordinate Judge on the question of adverse possession cannot be sustained and the same is set aside. 6. The alienation in question under Ext. 3 is not invalid and, on the other hand, is a valid piece of document conferring valid title on plaintiff No. 1. 7. The orders of the Estate Abolition Collector in favour of the plaintiffs under Exts. 7 and 8 cannot be held to be invalid by the Civil Court and, on the other hand, those orders under Exts. 7 and 9 conferred a valid title on the plaintiffs which cannot be taken away by the Civil Court.
Issues: 1. Whether the sikmi tenants had ceased to enjoy their sikmi rights after the order of the Ruler dt. 7-10-1939 as per Ext. 1. 2. Whether the finding of the learned Subordinate Judge with regard to possession of the land after the order dated 7-10-1939 are contrary to the evidence on record and, therefore, cannot be supported. 3. Whether the Subordinate Judge was right in holding that Ext. 3 is invalid as the alienation was made without taking prior permission of the State. 4. What would be the effect of the order of the Estate Abolition Collector.
Ratio Decidendi: 1. The order of the Ruler dated 7-10-1939 divested the sikmi tenants of all their rights in the land in question. 2. The plaintiffs were in possession of the disputed land and it is only after the order under S. 145 of the Cr. P. C. the defendants came to possess the land. 3. The defendants have not adduced any evidence in support of their case of possession. 4. The alienation in question under Ext. 3 is not invalid and, on the other hand, is a valid piece of document conferring valid title on plaintiff No. 1. 5. The orders of the Estate Abolition Collector in favour of the plaintiffs under Exts. 7 and 8 cannot be held to be invalid by the Civil Court and, on the other hand, those orders under Exts. 7 and 9 conferred a valid title on the plaintiffs which cannot be taken away by the Civil Court.
Final Decision: The judgment and decree of the learned Subordinate Judge are set aside and the plaintiffs' suit is decreed with costs. The first appeal is allowed.
G. B. PATTANAIK, J.
( 1 ) PLAINTIFFS are the appellants against the judgment and decree of the Subordinate Judge, Athgarh, in a suit for declaration of plaintiffs' title and for confirmation of possession as well as for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs. Plaintiff No. 1 is the husband of plaintiff No. 2.
( 2 ) PLAINTIFF's case, in brief, is that the properties described under Lot. No. 1 of Schedule A of the plaint are Brahmottar Niskar land and under Lot No. 2 of the said Schedule are Pahi land. The entire land originally belonged to one Nilakantha and after his death the property devolved upon his three sons, Hari, Baraju and Madhu. Madhu had been given away in adoption and accordingly had no interest in the property of Nilakantha. Both Hari and Baraju had no issue. Hari had adopted one son called Natabar and Baraju had adopted one son called Lokanath. Natabar died issueless in 1941 leaving beind his widow Mahani and three daughters, Maguni, Ratnamuni and Swaranapata. Ratnamani is plaintiff No. 2 and her husband Chandra Sekhar is plaintiff No. 1. Lot No. 1 of Schedule A was mutuated in the names of Lokanath and Champa, who is wife of Madhu, in Mutation Case No. 822 of 1945-46 and Lot No. 2 was mutated in the names of Lokanath and said Champa in Mutaion Case No. 823 of 1945-46. Champa died leaving behind two daughters Buli and Subarna. Plaintiff No. 1 had purchased 3. 84 acres of land which is fully described in Schedule B of the plaint, from Mahani, wife of Loknath, under registered sale deed dated 6-9-1957 and according to the plaintiffs' case after purchase of the said property possession was delivered to him and then he got his name mutated in respect of the said property in Mutation Case No. 245 of 1960-61. After the vesting of Brahmottar Niskar land in the State, plaintiff No. 1 made an application under the provisions of the Orissa Estates Abolition Act for settlement and for fixation of fair and equitable rent which was allowed and rent roll was issued in his name. It is the further case of the plaintiffs that rest of the land in Schedule-A was also settled in favour of plaintiff No. 2 in O. N. A. Vesting Case No. 56 of 1966-67 and Patta was issued in her name. The defendants laid claim for settlement of the Brahmottar land but their claim was disallowed by the O. E. A. Collector. So far as Lot No. 2 of Schedule-A is concerned, according to the plaintiffs, Ac. O. 26 decimals of land of the said lot was mutated in the name of plaintiff No. 2 and Maguni, the sister of plaintiff No. 2, in Mutation Case No. 244 of 1960-61 and Mutation Slip had been issued accordingly. After the death of Maguni, there having no issue, plaintiff No. 2 continued in possession as the exclusive owner in respect of Ac. O. 26 decimals of land. The rest Ac. O. 12 decimals of land out of Lot No. 2 was under Lokanath's possession and after his death the property devolved upon plaintiff No. 2 who came into possession and thus the plaintiffs possessed the entire `a' schedule property. They are also paying rent to the Government in respect of the same and the defendants having no manner of right, title and interest over the same, started a proceeding under S. 145 of the Cr. P. C. They lost in the said proceeding after fighting up to the High Court and yet thereafter they created trouble in the peaceful possession of the plaintiffs. So the plaintiffs were forced to start proceedings under S. 145 of the Cr. P. C. in Misc. Case Nos. 86 and 87 of 1970. In these proceedings possession of the defendants was declared and so the plaintiffs preferred a revision, but the revision was also dismissed. Hence the plaintiffs were forced to file the suit for the reliefs already stated.
( 3 ) DEFENDANTS 1, 3, 4 and 5 filed a joint written statement and defendant No. 2 filed a separate written statement. According to defendant No. 2, she is the daughter and sole legal heir of late Mahadev Naik who is
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