1974 Supreme(Ori) 112

IN THE HIGH COURT OF ORISSA
S.K. Ray, J.
HARI JENA AND OTHERS - APPELLANT
Versus
SOMANATH HARICHANDAN - RESPONDENT
Second Appeal No. 142 of 1970
Decided On : 18-02-1974

The civil court has jurisdiction to entertain a suit for eviction of a person who is in unlawful occupation and cultivation of the suit land as a trespasser, where the raiyati right was not declared either in favor of the deceased sikimi tenant or in favor of his legal representatives.

Headnote:

LAND REFORMS - RAIYATI RIGHT - ACQUISITION - PROCEDURE - ORISSA LAND REFORMS ACT, 1960 (16 OF 1960), SECTIONS 2(26), 4(1)(I), 4(5) TO 4(8), 6, 8, 12, 67 - ORISSA LAND REFORMS (GENERAL) RULES, 1965, RULE 3 - CIVIL PROCEDURE CODE, 1908 (5 OF 1908), ORDER 22 - SUIT FOR EVICTION - JURISDICTION OF CIVIL COURT - RAIYATI RIGHT NOT ACQUIRED BY DECEASED SIKIMI TENANT - NO SUBSTITUTION OF LEGAL REPRESENTATIVES IN PROCEEDING UNDER SECTION 4(5) OF THE ACT - CIVIL COURT HAS JURISDICTION TO ENTERTAIN SUIT FOR EVICTION.

Fact of the Case:

Plaintiff filed a suit for eviction of the defendants from the suit land on the ground that they were in unlawful occupation and cultivation of the same as trespassers. Khetra Jena, father of the defendants was a sikimi tenant in respect of the suit land which fell to the plaintiff's share in a partition amongst the plaintiff and his co-sharers. Khetra Jena was recorded as sikimi tenant in the current settlement Record-of-rights. On 28-12-1965 Khetra Jena filed an application u/s 4(5) of the Orissa Land Reforms Act, 1960 (hereinafter referred-to as the Act) for declaration of his status as a Raiyat. While that application was pending adjudication, Khetra died on 31-1-1967. Thereafter, on 3-3-1967, the present suit was filed by the plaintiff for the aforesaid relief. On 21-12-1907, the appellants filed an application in the O.L.R. case to be substituted in place of Khetra. The suit for eviction was decreed on 22-4-1969. On 14-11-1969 the O.L.R. Officer rejected the petition for substitution and ultimately dismissed the case.

Finding of the Court:

The court held that the civil court had jurisdiction to entertain the suit for eviction as the raiyati right was not declared either in favor of Khetra or in favor of the defendants. The court further held that the sikimi right of Khetra was not heritable and since Khetra had not acquired any raiyati right, the defendants could not step into his shoes and if they were in possession of the suit lands, they would be in possession only as trespassers.

Issues: 1. Whether the civil court had jurisdiction to entertain the suit for eviction? 2. Whether the sikimi right of Khetra was heritable?

Ratio Decidendi: 1. The court held that the civil court had jurisdiction to entertain the suit for eviction as the raiyati right was not declared either in favor of Khetra or in favor of the defendants. The court relied on the provisions of Sections 2(26), 4(1)(i), 4(5) to 4(8), 6, 8, 12, and 67 of the Orissa Land Reforms Act, 1960, and Rule 3 of the Orissa Land Reforms (General) Rules, 1965. The court held that the legislative intent was that no rights in land shall accrue finally to an under-raiyat until compensation determined by the Revenue Officer had been paid. Subject to this final outcome of a proceeding u/s 4(5) of the Act and after the Revenue Officer's order making the declaration is passed, an under-raiyat shall be deemed to be a raiyat under the provisions of the Act. Thus, Khetra Jena had no right of a "deemed raiyat" before the Revenue Officer passed an order declaring him to be a raiyat and determined the amount of compensation payable and he had no such right when he died. Since his under raiyati interest was not heritable there was no question of substitution in the proceedings u/s 4(5) of the Act. 2. The court held that the sikimi right of Khetra was not heritable. The court relied on the provisions of Section 4(1)(i) of the Orissa Land Reforms Act, 1960, which provides that subject to the provisions of Sub-sections (5) to (8), persons who are immediately before the commencement of this Act in personal cultivation of any land and recorded as sub-tenants or under-raiyats in respect of such land in the record-of-rights under any law in force in any part of the State. The court held that Khetra Jena was immediately before the commencement of the Act on 25-9-1965 in personal cultivation of the suit land and was recorded as an under-raiyat (sikimi) in the record-of-rights of 1962 prepared under the provisions of the Orissa Tenancy Act. The court held that Khetra Jena had no right of a "deemed raiyat" before the Revenue Officer passed an order declaring him to be a raiyat and determined the amount of compensation payable and he had no such right when he died. Since his under raiyati interest was not heritable there was no question of substitution in the proceedings u/s 4(5) of the Act.

Final Decision: The appeal was dismissed.