Back
1966 Supreme(Ori) 104
IN THE HIGH COURT OF ORISSA
Misra, Das, JJ.
BHIMA PADHI - APPELLANT
Versus
VENKATESWARA SWAMY VARU AND ANOTHER - RESPONDENT
First Appeal No. 24 of 1963
Decided On : 27-09-1966
P.V. Ramdas and G. Rath, for the Appellant; N.V. Ramdas, for the Respondent
The jurisdiction of the Civil Court is ousted under Section 11-A of the O.T.R. Act only if a dispute is raised and pending before the Collector, and a dispute raised but not kept alive does not oust the jurisdiction of the Civil Court.
Headnote:
O.T.R. ACT - LANDLORD-TENANT DISPUTE - JURISDICTION OF CIVIL COURT - SECTION 11-A - INTERPRETATION - DISPUTE RAISED AND PENDING BEFORE COLLECTOR - CIVIL COURT JURISDICTION OUSTED - DISPUTE RAISED BUT NOT KEPT ALIVE - CIVIL COURT JURISDICTION NOT OUSTED.
Fact of the Case:
Plaintiff filed a suit for possession of disputed lands, alleging that the Defendant and his vendor were trespassers. Defendant claimed to have purchased the lands from a previous owner who had purchased them from another individual, both of whom were impleaded as Defendants in the suit. All those Defendants were held to be trespassers, and a decree for eviction was passed. Defendant's vendor filed an appeal, and while the appeal was pending, Defendant threatened the Plaintiff with violence and gave out that he would remove the crop by force. Plaintiff filed a suit for permanent injunction to restrain the Defendant from interfering with the possession and cultivation of the suit lands. An interim injunction was issued, and the Defendant was permitted to cut the crop on depositing Rs. 300/- in Court. The suit was later compromised, and Defendant was allowed to cultivate the disputed lands till the disposal of the appeal on his agreeing to give half of the yield of paddy to the Plaintiff by a specified date. Defendant did not give the paddy for the year 1960 to the Plaintiff, who filed a suit for recovery of the value of the paddy. After service of notice in that suit, Defendant filed an application in the Court of the O.T.R. Collector, praying for a declaration that he was the tenant of the disputed lands and for permitting him to deposit the profits of the suit lands under the provisions of the O.T.R. Act. Plaintiff's case was that there was no relationship between the Plaintiff and the Defendant as landlord and tenant and that the Defendant was bound by the decree in the previous suit and the decree in the compromise suit. The Defendant pleaded that he had occupancy rights in the suit lands, which he transferred to his predecessors-in-interest, who in turn sold the same to him in 1954. He claimed that he had been enjoying occupancy rights peacefully and that the Plaintiff was only entitled to receive Rajbhagam. He also argued that the suit was not maintainable till the disposal of the O.T.R. case.
Finding of the Court:
The Court held that the Defendant and his predecessors-in-interest were trespassers and had no tenancy rights, and that the decree passed in the previous suit against which an appeal had been dismissed for default was res judicata, so far as the defense was concerned. The Court also held that the jurisdiction of the Civil Court was not ousted by the Defendant having filed an application in the O.T.R. case, as the dispute raised in that application had been dropped. The Court further held that the Defendant had failed to prove his claim of occupancy right and that he was not a tenant under the O.T.R. Act.
Issues: 1. Whether the Defendant could raise the defense that he was a tenant of the disputed lands in view of the decree in the previous suit that he was a trespasser? 2. Whether the jurisdiction of the Civil Court was ousted by the Defendant having filed an application in the O.T.R. case that he was a tenant of the disputed lands?
Ratio Decidendi: 1. The Court held that the Defendant was bound by the decree in the previous suit, which had become final as a result of the dismissal of the appeal, and that he could not raise the defense that he was a tenant of the disputed lands. 2. The Court held that the jurisdiction of the Civil Court was not ousted by the Defendant having filed an application in the O.T.R. case, as the dispute raised in that application had been dropped. The Court interpreted Section 11-A of the O.T.R. Act to mean that the jurisdiction of the Civil Court is ousted only if a dispute is raised and pending before the Collector, and that a dispute raised but not kept alive does not oust the jurisdiction of the Civil Court.
Final Decision: The Court dismissed the appeal.
JUDGMENT :
Misra, J. - The suit out of which this appeal arises was filed on the following averments: T.S. No. 19/57 in the Court of the Additional Subordinate Judge, Berhampur was filed by the Plaintiff for recovery of possession of the disputed lands on the allegation that the Defendant and his vendor were trespassers. Defendant Bhima Padhi was Defendant No. 6 in that suit. He claimed to have purchased the disputed lands from Kaviraj Madhusudan Sarma who had purchased the same from Honnu Padhi, both of whom, bad been impleaded as Defendant Nos. 1 and 4 in that suit. All those Defendants were held to be trespassers and a decree for eviction was passed. In execution of the decree, Plaintiff was put in possession on 3-3-1959 (see Amin's report-Ex. 7 (b)). Defendant'" vendor filed F.A. No. 7/59 wherein the Defendant was Respondent No. 6. While the First Appeal was pending and the Plaintiff kept the disputed lands in his khas cultivation, Defendant threatened the Plaintiff with violence and gave out that he would remove the crop by force. Plaintiff accordingly filed T.S. No. 198/59 in the Court of the Munsif, Berhampur against the Defendant for permanent injunction to restrain the Defendant from interfering with the possession and cultivation of the suit lands. An interim injunction was issued. Defendant was, however, permitted to cut the crop on his depositing in Court Rs. 300/ - tentatively fixed as the value of the crop. On 1-8-1960, that suit was compromised. Defendant was allowed to cultivate the disputed lands till the disposal of F.A. No. 7/59 on his agreeing to give half of the yield of paddy to the Plaintiff by a specified date. Defendant did not give the paddy for the year 1960 to the Plaintiff. The latter accordingly filed M. S No. 69/61 in the Court of the Munsif, Berhampur for recovery of the value of the paddy. After service of notice in that suit, Defendant filed O.T. R case No. 32/61 in the Court of the O.T.R. Collector, Berhampur praying amongst other reliefs for a declaration that he was the tenant of the disputed lands and for permitting him to deposit the profits of the suit lands under the provisions of the O.T.R. Act (hereinafter to be referred to as the Act). Plaintiff's case is that there is no relationship between the Plaintiff and the Defendant as landlord and tenant. The latter was bound by the decree in T.S. No. 19/57 in the Court of the Addl. Subordinate. Judge and by the decree in T.S. No. 198/59 on the file of the Munsif, Berhampur. Further, an identical plea of the Defendant raised in O.T.R. case No. 19/59 had been previously withdrawn. F.A. No. 7/59 was dismissed for default on 21-9-1961. O.T.R. case No. 32/61 was dropped on 14-5-1962 as stated by Mr. P.V. Ramdas. As per the terms of the compromise decree in T.S. No. 198/59, Defendant was liable to vacate the disputed lands. On the Defendant's failure to leave possession, the suit was filed for recovery of possession and permanent injunction.
2. Defendant pleaded that Honnu Padhi had occupancy rights in the suit lands which he transferred to Madhusudan Sarma, who in his turn, sold the same to the Defendant in 1954. Ever since then, the Defendant has been enjoying occupancy rights peacefully. Plaintiff is entitled only to receive Rajbhagam. The suit was not maintainable till disposal of O.T.R. Case No. 32/6l.
3. The learned Subordinate Judge held that the Defendant and his predecessors-in-interest were trespassers and had no tenancy rights and the decree passed in T.S. No. 19/51 against which F.A. No. 7 /59 had been dismissed for default on 21-9-1961 is res judicata, so far as the defence is concerned. He accordingly decreed the Plaintiff's suit. This appeal has been filed by the Defendant.
4. The following questions arise for consideration in this appeal:
(a) Is it open to the Defendant to raise the defence that he is a tenant of the disputed lands in view of the decree in T.S. No. 19/57 that he was a trespasser?
(b) Is the jurisdiction of the Civil Cou
