Back
IN THE HIGH COURT OF ORISSA
S.K. Ray, J.
NABA KISHORE PANDA - APPELLANT
Versus
BULENDRA ` BULLA DAS AND OTHERS - RESPONDENT
Second Appeal No. 263 of 1970
Decided On : 24-06-1974
OCCUPANCY RIGHT - VOID LEASE - ADVERSE POSSESSION - ACQUISITION OF OCCUPANCY RIGHT BY ADVERSE POSSESSION - VOID LEASE DEED - ADVERSE POSSESSION - ACQUISITION OF RAIYATI INTEREST BY PRESCRIPTION - LIMITATION ACT, 1908 - ARTICLE 134B - APPLICABILITY - VOID TRANSACTION - ARTICLE 144 - APPLICABILITY - VOIDABLE TRANSACTION - ORISSA TENANCY ACT, 1913 - SECTION 23 - SETTLED RAIYAT - SECTION 24 - ACQUISITION OF OCCUPANCY RIGHT BY SETTLED RAIYAT - VOID LEASE - POSSESSION BECOMES ADVERSE FROM THE DATE OF ALIENATION.
Fact of the Case:
Plaintiff filed a suit for declaration of occupancy tenancy right in the suit land and for permanent injunction against Defendants 1 and 2 restraining them from disturbing his possession. The suit land belonged to a public excepted temple, and the marfatdari right vested in a body of persons including Defendants 1, 2, and 4 to 7. Plaintiff's father was inducted as a tenant by one of the marfatdars, Jogeswar Das, on the basis of a permanent lease deed executed in 1941. Defendants 1 and 2 contested the suit, denying Plaintiff's allegations and claiming hereditary right of succession as archak-cum-trustees of the temple.
Finding of the Court:
The trial court found that the permanent lease deed was valid and that Plaintiff's father had acquired the suit land in the capacity of a raiyat. The lower appellate court confirmed the trial court's findings. The High Court held that the permanent lease was void due to non-compliance with the provisions of the Orissa Hindu Religious Endowments Act, 1939, and that Plaintiff's possession became adverse from the date of the lease deed. The Court further held that Plaintiff had acquired raiyati interest by prescription and that, as a settled raiyat, he had acquired occupancy right in the suit land by virtue of Section 24 of the Orissa Tenancy Act, 1913.
Issues: 1. Whether the permanent lease deed executed by Jogeswar Das was valid. 2. Whether Plaintiff's father acquired the suit land in the capacity of a raiyat. 3. Whether Plaintiff had acquired raiyati interest by prescription. 4. Whether Plaintiff was a settled raiyat of the village. 5. Whether Plaintiff had acquired occupancy right in the suit land by virtue of Section 24 of the Orissa Tenancy Act, 1913.
Ratio Decidendi: 1. The permanent lease deed was void due to non-compliance with the provisions of the Orissa Hindu Religious Endowments Act, 1939. 2. Plaintiff's father acquired the suit land in the capacity of a raiyat, as evidenced by the payment of rent. 3. Plaintiff had acquired raiyati interest by prescription, as his possession became adverse from the date of the void lease deed and continued for more than 12 years. 4. Plaintiff was a settled raiyat of the village, as he held occupancy lands in the village for more than 12 years. 5. Plaintiff had acquired occupancy right in the suit land by virtue of Section 24 of the Orissa Tenancy Act, 1913, as he was a settled raiyat when he acquired raiyati interest in the suit land.
Final Decision: The High Court dismissed the appeal, upholding the lower courts' decisions and confirming Plaintiff's occupancy right in the suit land.
JUDGMENT :
S.K. Ray, J. - This Secund Appeal is by Defendant No. 2 from the confirming decision of the 1st Additional Sub-Judge, Cuttack in Title Appeal No. 86/68/10/69 decreeing the suit.
2. The Plaintiff filed a suit for declaration that he is the occupancy tenant in respect of the suit land in Schedule A of the plaint comprising of plot 1202 (0.18), plot 1204 (0.20) of village Kundi, plot 311 (1.42) of village Mallikpur" plot 39 (0.75) of village Nandakishorepur and for permanent injunction against Defendants 1 and 2 restraining them from disturbing his possession over the same, and to confirm his possession thereof and, in the alternative, for recovery of possession. Admittedly, the suit land belongs to the deity Dadhibaban Jew of village Kundi, P.S. Mahanga which is a public excepted temple. The marfatdari right in respect of this institution vests in a body of persons including Defendants 1, 2 and 4 to 7. Defendants 1 and 2 have -/5/- interest and Defendants 4 to 7 have -/6/- interest in such marfatdari right. The Plaintiff's case is that Jogeswar Das, father of Defendants 4 to 7 inducted his father Hadibandhu Das as a tenant in respect of the suit land and other lands as the managing marfatdar of the deity. This induction is evidenced by the lease deed dated 5-4-1941 (Ext. 21). Hadibandhu and after him the Plaintiff have been cultivating the suit land on payment of produce rent. There arose some dissensions amongst the marfatdars, in consequence whereof, the Endowment Commissioner in his order dated 5-8-1946 declared the deity as a public deity and appointed Defendant No. 1 as the sole non-hereditary trustee, but as he was resisted by his co-sharer marfatdars in getting possession, the Endowment Commissioner directed him by order dated 8-10-1952 to obtain possession through Court. Instead of doing that, he filed a review petition before the Endowment Commissioner and in course of that proceedings he entered into a compromise on 28-10-1953 with the parties to that proceeding including Defendants 4 to 7. Under the compromise, the deity's properties were divided into Schedules A and B, and it was provided that Defendants 3 to 7 would remain in possession of Schedule A properties while Defendant No. 1 would take possession of Schedule B properties which include the present disputed property through Court. Subsequently, Defendant No. 1 was discharged from his trusteeship and a Board of Trustee was constituted of 8 members with one Chakradhar Mohapatra as the Managing Trustee. Sometime there-after, a proceeding u/s 145, Code of Criminal Procedure was initiated regarding some properties of the deity including the suit land, in which the managing trustee of the Board, the present Plaintiff and some others were members of the first party and the second party members comprised of Defendant 1, one Panu Samal and some others. It terminated with declaration of possession in favour of the first party members. Then, Panu Samal a member of the second party started one O.T.R. Case claiming bhag chasi right in respect of 1.68 decimals (part of the present disputed land and of some other land) in which he impleaded the present Plaintiff as one of the opposite parties. This case was compromised on 29-2-1960. By this compromise, Plaintiff gave up 47 decimals out of plot 1610, but his right over plot No. 39 was confirmed and acknowledged, by the then Managing Trustee, Chakradhar Mohapatra. Thus, the Plaintiff's possession over the suit land in the capacity of a raiyat extended for more than 12 years and consequently he acquired occupancy right in the same.
3. Defendants 1 and 2 contested. They denied all the Plaintiff's allegations and pleaded that their ancestors were appointed as archak-cum-trustees with hereditary right of succession in respect of the public excepted temple in which Dadhibaban Jew was the presiding deity. The Endowment Commissioner, by his order dated 16-8-1961 passed in F.A. 28/58-59, has declared this institution as on exc
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
