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1973 Supreme(Ori) 254
IN THE HIGH COURT OF ORISSA
B.K. Ray, J.
BIBHUTI BHUSAN MOHANTY - APPELLANT
Versus
KULAMONI DAS AND OTHERS - RESPONDENT
Second Appeal No. 405 of 1969
Decided On : 16-01-1973
L.K. Dasgupta and J.K. Mitra, for the Appellant; D. Mohanty, M. Patra and P.K. Das, for the Respondent
A tenant who ordinarily resides in a homestead acquires occupancy rights in respect of the homestead for all purposes under Section 236 of the Orissa Tenancy Act, 1913, as amended in 1946.
Headnote:
OCCUPANCY RIGHT - TENANCY - SECTION 236 OF ORISSA TENANCY ACT, 1913 - INTERPRETATION - TENANT ORDINARILY RESIDING IN HOMESTEAD ACQUIRES OCCUPANCY RIGHT - TRANSFER OF HOMESTEAD BY TENANT - VALIDITY.
Fact of the Case:
Plaintiff filed a suit for declaration of title, confirmation of possession, and injunction against defendants, claiming that he acquired occupancy rights in the suit land through a sale deed from the sikimi tenants, who had acquired occupancy rights under Section 236 of the Orissa Tenancy Act, 1913, as amended in 1946.
Finding of the Court:
The trial court held that the sikimi tenants had acquired occupancy rights and that the sale deed was valid, while the lower appellate court reversed this finding, holding that the sikimi tenants were not ordinarily residing on the suit land and had not acquired occupancy rights.
Issues: 1. Whether the sikimi tenants had acquired occupancy rights in the suit land under Section 236 of the Orissa Tenancy Act, 1913, as amended in 1946? 2. Whether the sale deed executed by the sikimi tenants in favor of the plaintiff was valid?
Ratio Decidendi: 1. Section 236 of the Orissa Tenancy Act, 1913, as amended in 1946, confers occupancy rights on a tenant who ordinarily resides in a homestead, irrespective of the nature of his tenancy. 2. The language of Section 236 clearly indicates that a tenant acquires the status of an occupancy raiyat in respect of the holding where he ordinarily resides. 3. The right of an occupancy raiyat is transferable, and a tenant who acquires occupancy rights under Section 236 also has the right to transfer the homestead.
Final Decision: The appeal was allowed, the judgment and decree of the lower appellate court were set aside, and the case was remanded for disposal according to law in light of the observations made by the court.
JUDGMENT :
B.K. Ray, J. - Plaintiff is the Appellant in a suit for declaration of title to, for confirmation or in the alternative for recovery of possession of the suit land and for a permanent injunction against Defendant Nos. 1 to 7 restraining them from coming upon the suit land or from creating disturbance in Plaintiff's peaceful possession thereof.
2. The case of the Plaintiff may briefly be stated as follows : The suit land with an area of O. 07 acre under plot No. 883 in khata No. 24 in village Bhadimul stands recorded in the names of Defendant No. 8 and Ananda father of Defendant No. 9 as sikimi tenants. The C.S. record-of-rights is Ext. 2. The Suit land is a homestead which contained the residential house of Defendant No. 8 and of Ananda. It is in this residential house the recorded sikimi tenants were originally residing. On the death of Ananda his son (Defendant No. 9) continued to live in the said residential house with Nitei (Defendant No. 8). The suit land therefore being a homestead in which Defendant No. 8 and Ananda and after him, his son (Defendant No. 9) were ordinarily residing, u/s 236 of the Orissa Tenancy Act as amended in 1946 the sikimi tenants, viz : Defendant No. 8 and Ananda and after Ananda his son (Defendant No. 9) acquired occupancy right in the suit land. In the year 1965, under the sale deed (Ex. 1), Defendant Nos. 8 and 9 transferred the suit land in favour of the Plaintiff for a cash consideration of Rs. 200.00/-. By virtue of this transfer the Plaintiff came to possess of the suit land and is in possession thereof as an occupancy tenant Defendant Nos. 1 to 7 who were tenure holders in respect of the suit land ceased to be tenure holders after the vesting of the tenure in the State of Orissa under the Orissa Estates Abolition Act, and therefore, they have absolutely no manner of right, title and interest in the suit land. As on account of enmity between the Plaintiff on one hand and Defendant Nos. 1 to 7 on the other, the latter threatened to interfere with the Plaintiff's possession in the suit land, the Plaintiff has instituted the suit for the aforesaid reliefs.
3. Defendant Nos. 1 to 3 in a joint written statement, while denying the plaint allegations in toto assert that during the settlement operations of the year 1930. Defendant No. 8 and father of Defendant No. 9 stood recorded as sikimi tenants in respect of the suit land under the predecessors-in-interest of Defendant Nos. 1 to 7 and Defendant No. 8 and father of Defendant No. 9 had their residential house on the suit land at that point of time. About four years after the settlement operations, the recorded sikimi tenants gave up the suit land where after the suit land was amalgamated with the land of Defendant Nos. 1 to 7 and was used as a garden. Therefore, Section 236 of the O.T. Act as amended in 1946 has absolutely no application to the case. It is further alleged by Defendant Nos. 1 to 3 that the settlement entry showing that the predecessors of Defendant Nos. 1 to 7 were tenure holders in respect of the suit land is wrong. As a matter of fact, the predecessors of Defendant Nos. 1 to 7, and after them, Defendant Nos. 1 to 7 are really occupancy tenants in respect of the suit land under whom Defendant No. 8 and father of Defendant No. 9 were sikimi tenants for some time and hence, the plaint allegation that the tenure holders interest of Defendant Nos. 1 to 7 in the suit land has vested in the State of Orissa under the Orissa Estates Abolition Act is false. On those allegations, Defendant Nos. 1 to 3 claim for dismissal of the suit.
4. The trial Court held that Defendant Nos. 1 to 7 being only tenure holders in respect of the suit land, their tenure holders interest has vested in the State of Orissa, and therefore, Defendant Nos. 1 to 7 have no interest in the suit land. It further held that on the date of commencement of the amending Act of 1946 which amended Section 236 of the O.T. Act, Defendant No. 8 and father of Defendant No.
