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1969 Supreme(Ori) 165
IN THE HIGH COURT OF ORISSA
S. Acharya, B.K. Patra, JJ.
KRUEHNA CHANDRA PATNAIK - APPELLANT
Versus
DOLAI MALIKO AND OTHERS - RESPONDENT
Second Appeal No. 90 of 1960
Decided On : 29-10-1969
N.V. Ramdas, for the Appellant; D. Mohanty, B.B. Das and R.C. Misra, for the Respondent
To acquire occupancy rights under Section 6 of the Madras Estates Land Act, 1908, a ryot must be in possession of ryoti land on the commencement of the Act or be admitted to possession by the landholder thereafter. The burden of proof is on the ryot to establish such possession or admission.
Headnote:
MADRAS ESTATES LAND ACT, 1908 - SECTION 6 - OCCUPANCY RIGHTS - ACQUISITION - CONDITIONS - ADMISSION BY LANDHOLDER - INTERPRETATION - EVIDENCE - BURDEN OF PROOF - SECOND APPEAL - JURISDICTION - ERRONEOUS FINDINGS OF FACT - IGNORING IMPORTANT EVIDENCE.
Fact of the Case:
Plaintiffs, Kondho residents of Nuabandhopalli village, filed a suit for declaration of their title to suit lands and permanent injunction against Defendants from interfering with their possession. Plaintiffs claimed they were allowed to reclaim the lands by the Zamindar in lieu of bethi service, later allowed to enjoy the lands with permanent occupancy right, and had been in possession paying rajbhag to the Zamindar or mustajars. Defendant No. 1, as mustajar farmer of rent, collected Rajbhag from Plaintiffs from 1932 onwards and wanted to take forcible possession of the suit lands in 1951. Defendant No. 1 claimed he and his father had Banjar patta in 1903, acquired exclusive possession, and had a fresh zeroity patta in 1933. He alleged Plaintiffs cultivated the lands as under-tenants for about five years from 1928 and wanted to trespass in 1940.
Finding of the Court:
The trial court dismissed the suit, but the appellate court reversed the decision, declaring the Plaintiffs as occupancy ryots and restraining the Defendants from interfering with their possession. On second appeal, the High Court held that the Plaintiffs failed to prove their title and possession over the disputed lands. The court found that the Plaintiffs did not have any evidence to show that they were in possession of the disputed lands as ryots when the Madras Estates Land Act, 1908 came into force, and that they were not admitted into possession by the landholder subsequent to the Act's commencement. The court also found that Defendant No. 1 was in possession of the disputed lands at least during the years 1925 to 1928 and again during the years 1936 and 1937, and that he had acquired occupancy right over the suit lands in the year 1933 under a zeroyati patta granted by the Zamindar.
Issues: 1. Whether the Plaintiffs had acquired occupancy right in the disputed lands under Section 6 of the Madras Estates Land Act, 1908? 2. Whether the appellate court erred in its findings of fact and misconstrued evidence?
Ratio Decidendi: 1. Section 6 of the Madras Estates Land Act, 1908 provides that every ryot in possession of ryoti land on the commencement of the Act or admitted to possession by the landholder thereafter shall have a permanent right of occupancy in his holding. 2. The burden of proof is on the Plaintiffs to establish that they were in possession of the disputed lands as ryots when the Act came into force or that they were admitted into possession by the landholder subsequent to the Act's commencement. 3. The court found that the Plaintiffs did not have any evidence to show that they were in possession of the disputed lands as ryots when the Act came into force, and that they were not admitted into possession by the landholder subsequent to the Act's commencement. 4. The court also found that Defendant No. 1 was in possession of the disputed lands at least during the years 1925 to 1928 and again during the years 1936 and 1937, and that he had acquired occupancy right over the suit lands in the year 1933 under a zeroyati patta granted by the Zamindar.
Final Decision: The High Court allowed the appeal, set aside the judgment and decree passed by the learned Subordinate Judge, and dismissed the Plaintiff's suit with costs throughout.
JUDGMENT :
B.K. Patra, J. - This is an appeal by the unsuccessful Defendant No. I against the reversing judgment of the learned Subordinate Judge, Berhampur decreeing the Plaintiff's suit.
The Plaintiffs filed a suit for declaration of their title to the suit lands situated in village Nuabandhopalli comprised in the Bodokhemidi zamindari in the district of Ganjam, and for permanent injunction restraining the Defendants from interfering with their possession of the same. The Plaintiff are Kondho residents of the village. Their case is that the Zamindar of Bodokhemidi allowed the ancestors of the Plaintiffs to reclaim the suit lands and enjoy the usufruct thereof in lieu of bethi service to him and that Borne time later, the Zamindar did not like to extract bethi service from them and allowed the ancestors of the Plaintiffs to enjoy the lands with permanent occupancy right therein. Accordingly, the Plaintiffs ancestors, and after them, the Plaintiffs have been in possession of these lands on payment of rajbhag to the Zamindar or to the mustajars, appointed by him. Defendant No. 1 as mustajar farmer of rent appointed by the Zamindar collected Rajbhag from the Plaintiffs from the year 1932 onwards. Thereafter, Defendant No. 1 in collusion with Defendants 2 and 3 wanted to take forcible possession of the suit lands in about July, 1951. The Plaintiffs, therefore, were obliged to file the suit.
2. The suit was contested only by Defendant No. 1, who is the sole Appellant before this Court. He denied the Plaintiffs' case that they are the occupancy tenants of the suit lands or that they ever paid rent to Zamindar directly for the same. His case is that his father Dasarathi Patnaik and three others got Banjar patta in respect of the suit lands from the Zamindar in 1903.
In course of time, Dasarathi Patnaik acquired the interests of the co-pattadars and was in exclusive possession of the suit lands till his death in 1916. Since then, the Defendant has been the occupancy tenant in respect of the suit lands. The Zamindar granted a fresh zeroity patta in his favour in 1933 and his name was also recorded as an occupancy tenant in the Record of Rights prepared in 1942. According to him, the Plaintiffs along with others cultivated the suit lands as under-tenants under him for about five years from 1928. In the year, 1940, the Plaintiffs wanted to trespass on the suit lands for which a proceeding u/s 107, Code of Criminal Procedure was instituted against them and they had been warned. In the circumstances, he prayed for dismissal of the suit.
3. The learned Munsif, who tried the suit, dismissed in on the ground that the Plaintiffs failed to prove their title to and possession over the disputed lands. On appeal, the learned Subordinate Judge, Berhampur reversed the judgment of the trial Court and declaring the Plaintiffs were the occupancy ryots in respect of the suit lands, passed an order restraining the Defendants permanently from interfering with the possession of the Plaintiffs. It is against this decision that the appeal has been filed by the first Defendant.
This appeal came up in the first instance for hearing before G.C. Das, J. who allowed the appeal on the preliminary ground that the appeal which had been filed by the Respondent in the Court of the Subordinate Judge had abated as a whole for non-inclusion of some of the legal representatives of one of the deceased Appellants therein. The Respondents (Appellants in the first appellate Court) appealed against that order of this Court in the Supreme Court and their Lordships held for reasons stated in their judgment, that the appeal in the first appellate Court did not abate. The decision of this Court was therefore set aside and the case was sent back to this Court for decision on merits after bringing the heirs left out earlier into record. This having been done, the appeal is Bet down for hearing.
4. The judgment of the learned Subordinate Judge is assailed on the ground that he has at sever
