1974 Supreme(Ori) 216

IN THE HIGH COURT OF ORISSA
G.K. Misra, B.K. Patra, JJ.
JAGANNATH NANDA - APPELLANT
Versus
BISHNU DALEI AND OTHERS - RESPONDENT
A.H.O. No. 1 of 1972
Decided On : 10-06-1974

An amendment of pleading is to be allowed even after expiry of the statutory period of limitation, where it does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts.

Headnote:

ORISSA ESTATES ABOLITION ACT, 1951 - SECTION 7 - OCCUPANCY RIGHTS - PAYMENT OF RENT - AMENDMENT OF PLAINT - ADDITIONAL APPROACH TO SAME FACTS - ALLOWANCE.

Fact of the Case:

Plaintiff-Appellant filed a suit for declaration of title and recovery of possession of disputed properties after setting aside an order passed in favour of Defendant-Respondents in a proceeding u/s 145, Code of Criminal Procedure. The disputed properties were part of an estate that vested in the State Government on 1-5-1954. Plaintiff claimed that the proprietor, after reclaiming the disputed lands, included his name as a tenant in the Zamabandi submitted to the Government and acquired occupancy rights u/s 7 of the Orissa Estates Abolition Act, 1951 (Act 1 of 1952) (hereinafter referred to as the Act). Defendant-Respondents denied Plaintiff's claim and asserted communal rights over the disputed lands.

Finding of the Court:

The trial Court decreed the suit, holding that the disputed plots do not constitute communal property and that Defendants do not possess any customary rights therein. The lower appellate Court substantially affirmed the findings of the trial Court. In the second appeal, the High Court upheld the concurrent findings of the Courts below that the disputed plots do not constitute communal property and that Defendants do not possess any customary rights therein. The High Court also held that Defendant No. 10 acquired occupancy rights in the disputed lands by payment of rent to the State and acceptance of the same by the latter, and consequently the Plaintiff acquired a valid title thereto under the sale deed Ext. 8.

Issues: 1. Whether Defendant No. 10 acquired occupancy right in the disputed lands by operation of Section 7 of the Act, as it stood before it was amended by Orissa Act 15 of 1956? 2. Assuming that he did not acquire any such right u/s 7, did he acquire occupancy rights in the lands by payment of rent to the State and acceptance of the same by the latter? 3. Whether Plaintiff's application for amendment of the plaint should be allowed and in that event; 4. Assuming that Defendant No. 10 did not acquire any occupancy right either by operation of Section 7 or by payment of rent to the State, did the Plaintiff independent of Defendant No. 10 acquire any occupancy right by payment of rent to the State and acceptance of the same by the latter?

Ratio Decidendi: 1. Section 7 of the Act, as it stood before it was amended in 1956, did not require the quondam proprietor to make any application to the State to obtain the deemed settlement contemplated in Section 7. If he was in Khas possession of any lands used for agricultural or horticultural purposes on the date of such vesting he acquired the status of an occupancy tenant subject to payment of rent and acceptance of rent by the State. 2. The disputed properties were agricultural lands and there was evidence to show that Defendant No. 10 paid rent to the State and that the State authorities accepted rent from him. Defendant No. 10 therefore became an occupancy raiyat in respect of the disputed properties. 3. The Plaintiff's application for amendment of the plaint was allowed as it did not constitute the addition of a new cause of action or raise a different case, but amounted merely to a different or additional approach to the same facts. 4. Assuming for any reason that Defendant No. 10 had not acquired any such occupancy right and consequently the Plaintiff did not acquire any under Ext. 8, the Plaintiff having paid the rent for the disputed lands and that refit having been accepted by the State, evidenced by the rent receipts, supported further by the circumstance that the Plaintiff's name is recorded as tenant in respect of the disputed lands, it must be held that he has acquired rights of occupancy therein.

Final Decision: Appeal allowed. Decree passed by the learned Single Judge set aside and Plaintiff's suit decreed.