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IN THE HIGH COURT OF ORISSA
Misra, J.
PURNA CHANDRA RATH - APPELLANT
Versus
HARIBANDHU PATNAIK - RESPONDENT
Second Appeal No. 368 of 1963
Decided On : 14-09-1965
ORISSA ESTATES ABOLITION ACT - SECTION 8(1), 8-A(1), 8-A(3) - TENANCY RIGHT - ACQUISITION - PROPRIETOR'S PRIVATE LAND - NIJ-CHAS LAND - DISTINCTION - EFFECT OF VESTING OF ESTATE IN STATE GOVERNMENT - EXTINGUISHMENT OF RIGHT, TITLE AND INTEREST - APPLICATION FOR SETTLEMENT OF FAIR AND EQUITABLE RENT - LIMITATION - FAILURE TO FILE CLAIM - CONSEQUENCES.
Fact of the Case:
Plaintiff purchased disputed land, which was nij-chas land, in execution of a money decree against the co-sharer landlord. Defendant claimed tenancy rights under a settlement deed and a patta executed by the co-sharer landlords. The trial court found in favor of the Plaintiff, holding that the Defendant's documents were spurious and that the Plaintiff had acquired tenancy rights by payment of rent. The lower appellate court reversed the trial court's decision, holding that the Plaintiff's title was extinguished under Section 8-A(3) of the Orissa Estates Abolition Act, 1951 (the Act) as he had failed to file an application for settlement of fair and equitable rent under Section 8-A(1) of the Act.
Finding of the Court:
The Orissa High Court held that the disputed land was not proprietor's private land but nij-chas land, which constituted an interest in the proprietary rights. The court further held that the Plaintiff's purchase of the disputed land did not confer tenancy rights on him, as he had not been in possession of the land as a tenant prior to the vesting of the estate in the State Government under Section 7 of the Act. The court also held that the Defendant had failed to establish his tenancy rights under the settlement deed and the patta, as these documents were found to be spurious by the trial court.
Issues: 1. Whether the disputed land was proprietor's private land or nij-chas land? 2. Whether the Plaintiff acquired tenancy rights by payment of rent? 3. Whether the Defendant acquired tenancy rights under the settlement deed and the patta? 4. Whether the Plaintiff's title was extinguished under Section 8-A(3) of the Act for failure to file an application for settlement of fair and equitable rent under Section 8-A(1) of the Act?
Ratio Decidendi: 1. Nij-chas land is not proprietor's private land, but constitutes an interest in the proprietary rights. 2. A person who purchases nij-chas land does not acquire tenancy rights unless he has been in possession of the land as a tenant prior to the vesting of the estate in the State Government under Section 7 of the Act. 3. A person who claims tenancy rights under a settlement deed and a patta must establish the genuineness of these documents. 4. A person who fails to file an application for settlement of fair and equitable rent under Section 8-A(1) of the Act within the prescribed period of limitation loses his right, title, and interest in the land, and his claim for tenancy rights is extinguished under Section 8-A(3) of the Act.
Final Decision: The court allowed the Plaintiff's second appeal and remanded the case to the lower appellate court for a fresh decision on the sole issue of whether the Plaintiff had acquired tenancy rights by payment of rent. The court directed the lower appellate court to consider the Plaintiff's rent receipt and any other relevant evidence in determining this issue.
JUDGMENT :
Misra, J. - The disputed land is 34 decimals, of nij-chas land in plot No. 1054 in khata No. 53 under mouza No. 62 in mouza Batapur in the district of Puri. It belonged to the co-sharer land lords Choudhury Gobinda Chandra Das, Choudhury Radhasyam Das, Choudhury Pitambar Das and Choudhury Ram Chandra Das. In the settlement record of rights (1923-1931) the suit was recorded as nij-chas in the name of these 4 co-sharers (see ext. D). Plot No. 1054 with an area of 0.34 acre is one of the plots appertaining to nij-chas khata No. 53. Plaintiff's case is that there was a partition amongst the co-sharers and that the suit land k had fallen to the share of Ram Chandra Das. In execution of a money decree against Ram Chandra, the disputed property was sold. One Bauribandhu Sahu purchased the disputed land amongst other lands and obtained delivery of possession. (See sale certificate ext. 3 and writ of delivery of possession ext. 4). Bauribandhu in his turn, sold the disputed land to Mahanta Narayan Das by a registered sale deed ext. 6 on 1-8-1942. Plaintiff purchased the same from the chela of Narayan Das by a registered sale deed ext. 1 on 22-7-1964. After his purchase. The paid rent to the proprietor Kailash Chandra Samantaray, who admittedly purchased the entire touzi in execution of a mortgage decree before 1940. Prior to the vesting of the estate in 1953 he was all through in possession until he was dispossessed by the Defendant. The suit is for declaration of title, recovery of possession and for damages.
2. Defendant No. 1, father of Defendant No. 2 died during the pendency of the suit. Defendant No. 2 alone contested. His case is that the disputed land was settled on his father in 1935 by co-sharer landlords excluding Ram Chandra by a stamp paper ext. A dated 21-1-1935. Kailash accepted the Defendants as permanent tenants on payment of Rs. 500- as premium. He executed a patta ext. B dated 28-4-1940 in favour of Defendant No. 1. Defendants paid rent all through and even after the abolition of the estate (ext. C series). They denied partition and allotment of the suit land to the share of Ram Chandra.
3. The learned trial Court recorded the following findings:
(i) The co-sharer landlords (Choudhury brothers) partitioned amongst themselves long before ext. 3 and the suit plot fell to the share of Ram Chandra.
(ii) Plaintiff acquired valid title to the suit land under ext. I.
(iii) Exts. A and B are spurious. They conferred no title on the Defendant.
(iv) Exts. C to C5 and C7 have been manufactured for the purpose of the case.
(v) It is to be noted that Defendant No. 2 was the gumasta under the Choudhury brothers, the original landlords as also under Kailash Chandra Samantaray. Exts. C6 and C8 do not confer tenancy right on the Defendant.
(v) The claim for damage was dismissed.
Thus Plaintiff's title as stithiban tenant and for recovery of possession was decreed.
4. The learned lower appellate Court recorded the following findings:
(i) Exts. A, B and the rent receipts ext. C series are genuine. They established the tenancy right of the Defendants.
(ii) Plaintiff by his purchase of nij-chas land acquired an interest in the proprietary rights. On the abolition of estate in 1953 title to the estate vested in the State of Orissa. Plaintiff having not made any application u/s 7 read with Section 8-A of the Orissa Estates Abolition Act, his right, title and interest in property stood extinguished. He has no subsisting title or right of action.
He dismissed the Plaintiff' suit on the aforesaid findings without examination of the Plaintiff's case whether he acquired a tenancy right by payment of rent subsequent to his purchase.
5. Mr. Mohapatra conceded that the first finding of the learned lower appellate Court is not based on discussion of the relevant materials on record and that if the Defendant cannot succeed on the 2nd finding the case must go back on remand to the lower appellate Court for examination of the rival case of the parties whe
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