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2017 Supreme(Ori) 565
IN THE HIGH COURT OF ORISSA: CUTTACK
A.K. RATH, J.
Biswanath Choudhury (Dead) his L.Rs Gitarani Choudhury and others - Appellants
Versus
State of Orissa and another - Respondents
S.A.No.22 of 1995
Decided on : 04-08-2017
Advocate Appeared:
For the Appellants :Mr.Alok Kumar Mohanty, Advocate
For the Respondents: Mr.Swayambhu Mishra, A.S.C.
The main legal point established in the judgment is the impact of the non-obstante clause in Section 41 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act on the maintainability of the suit.
Headnote:
Declaration of Title - Orissa Estate Abolition Act, Orissa Hindu Religious Endowments Act, Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act - Sec. 27 of O.H.R.E. Act, Sec. 37(1) of Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, Sec. 41 of O.C.H. & P.F.L. Act - Summary of Acts and Sections: The court discussed the validity of the hat patta under the Orissa Estate Abolition Act and the jurisdiction of the Tahasildar under the Orissa Hindu Religious Endowments Act. It also considered the impact of the non-obstante clause in Section 41 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act on the maintainability of the suit. The court's decision was influenced by the interpretation of these legal provisions and their applicability to the facts of the case.
Fact of the Case:
The plaintiffs filed a suit for declaration that the land register prepared by the consolidation authority is wrong, permanent and mandatory injunction. The suit land originally belonged to Ex-landlord Heramba Prasad Brahma alias Ray. The plaintiffs claimed rights to the land based on a hat patta issued to Dari Dibya, but the defendants disputed the authenticity of the hat patta and the plaintiffs' claims.
Finding of the Court:
The court found that the suit was not maintainable due to the pendency of a revision under Section 37(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act. The court also held that the plaintiffs' evidence did not inspire confidence, and the suit was not maintainable due to the contradictory pleas and prevaricating stand taken by the plaintiffs.
Issues: The issues included the validity of the hat patta, the maintainability of the suit, and the impact of the consolidation operations on the suit.
Ratio Decidendi: The court held that the suit was not maintainable due to the pendency of the revision under Section 37(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act. The court also found that the plaintiffs' evidence did not inspire confidence, and the suit was not maintainable due to the contradictory pleas and prevaricating stand taken by the plaintiffs.
Final Decision: The appeal was dismissed, and no costs were awarded.
JUDGMENT :
Dr. A.K.RATH, J.
This is a plaintiffs’ appeal against confirming judgment in a suit for declaration that the land register prepared by the consolidation authority is wrong, permanent and mandatory injunction.
2. The predecessors in interest of the appellants as plaintiffs filed the suit. The case of the plaintiffs is that the suit land originally belonged to Ex-landlord Heramba Prasad Brahma alias Ray. The suit land was “Nijdakhali Bagayat land”. The Ex-landlord had leased out the same in favour of one Dari Dibya on 10.6.1937 and issued Hat Patta to her. Dari Dibya was in possession of the land. She used to pay rent. But then the Ex-landlord did not file Tenants Ledger in favour of Dari Dibya after vesting of Baheli interest, for which she could not pay rent to the defendants after vesting. She filed Misc.Case No.195 of 1978 before the Tahasildar to recognize her as a tenant and settle rent in her under the provisions of Orissa Estate Abolition Act. The Tahasildar allowed the Misc.Case on 13.4.1979 and directed the Revenue Inspector to open the Tenants Ledger in respect of the suit land and realize the rent from her from the date of vesting. She received intimation on 21.5.1982. During that period consolidation proceeding in respect of the suit village was in progress. The case land was recorded in the name of the State. Dari Dibya died in the year 1982. The plaintiffs, son and grandson of Dari Dibya filed objection case to record the case land in their favour, but the same was not of any avail. They filed revision before the Consolidation Commissioner, which is sub-judice. While the matter stood thus, the Revenue Inspector seized some bamboos from the suit land. Since there was cloud of suspicion over the title of the plaintiffs in respect of the suit land, they filed Title Suit No.314/1986-I in the court of the Munsif, Bhadrak seeking the reliefs mentioned supra.
3. The defendants filed written statement denying the assertions made in the plaint. The case of the defendants is that the alleged hat patta is fabricated one. The order of the Tahasildar dated 13.4.79 is illegal and without jurisdiction. Sri Govinda Ray Jew is a public deity. The suit land is the intermediary interest of Sri Govinda Ray Jew deity. The Additional Assistant Commissioner of Endowments had appointed a trust board under Sec. 27 of the Orissa Hindu Religious Endowments Act (hereinafter referred to as “O.H.R.E.Act”) for proper management of the deity. The trust estate of the deity vested with the State on 18.3.1971. Neither the deity nor the trust board is party to the suit and as such the suit is not maintainable. Plaintiff no.2 filed a petition on 23.10.1978 for correction of Tenants Ledger on the basis of Hat Patta dated 10.2.1937 for an area of Ac.0.35 dec. Plaintiff no.1 had also filed a petition for both the plaintiffs on 1.6.1979 before the Tahasildar, Bhadrak for correction of R.O.R. claiming to be in possession of the suit land on the basis of the hat patta issued by the ex-intermediary. In that petition they stated that hat patta had been destroyed by fire. Misc.Case No.186 of 1979 was initiated in the court of the Tahasildar, Bhadrak and the same was transferred to the Additional Tahasildar–cum-A.C.O. camp-Amborali and renumbered as O.E.A Lease Case No.370 of 1980. In the said case, plaintiff no.1 deposed that the Tahasildar has fixed the rent in favour of Dari Dibya in Misc.Case No.186 of 1979. The case was dropped. The plaintiffs have taken a contradictory plea in Misc.Case No.195 of 1978 and Misc.Case No. 186 of 1979. In Misc.Case No.195 of 1978, it is stated that Debi Dibya got unregistered patta on 10.2.1937, but in Misc.Case No.186 of 1979, they stated that they got patta in 1945. In Misc.Case No.186 of 1979, they admitted that patta was destroyed by fire and stated so during inquiry by R.I. Kaupur and Consolidation Amin and in the court of A.C.O. The said fact was recorded by the Additional Tahasildar on 26.9.1980 that patta was
