The main legal point established in the judgment is that the amendment to the Orissa Land Reforms Act, 1960 by Orissa Act No.29 of 1976 made Sikimi tenancy heritable and transferable, overriding previous decisions that held Sikimi tenancy as non-heritable and non-transferable.

JUDGMENT :

B. Mohanty, J.

The following propositions of law have been referred for our decision.

1. What is the status of a Sikimi tenant?

2. Whether right of the Sikimi tenants in respect of agricultural land vis-a-vis homestead is different and distinct?

3. Whether the Sikimi right in respect of agricultural land is heritable and transferable?

4. Whether the Sikimi right in respect of homestead is heritable and transferable?

2. The aforesaid reference has been made in the following circumstances.

While this Court in a judgment dated 18.11.1998 rendered by a Division Bench in the case of Smt. Sarala Kumari Rath Vs. Khati Rout and others, (2000) 2 OrissaLR 363 came to hold that Sikimi right in respect of both the agricultural land and homestead land is heritable and transferable, however, another Division bench of this Court in an unreported decision i.e. in the case of Natabara Pandey Vs. Sri Sri Tareswar Dev and Sri Sri Tarini Thakurani and others pertaining to O.J.C. No.4349 of 1994 decided on 30th October, 2002 has held that a Sikimi tenant is an "under-raiyat" and such tenancy is neither heritable nor alienable. This later view has been reiterated by a learned Single Bench of this Court on 24.01.2004 in the case of Subal Baliarsingh and another Vs. Chanchala Bewa and another, (2003) 95 CutLT 438 by relying on Natabara Pandey case (Supra). In view of such cleavage of opinion, with the above noted questionnaire, the matter has been referred before this Bench.

3. Mr. Mohanty, learned counsel for the petitioner submitted that the later Division Bench while pronouncing its judgment in Natabara Pandey case (Supra) has not referred to the judgment pronounced by a Division Bench of this Court earlier in the case of Smt. Sarala Kumari Rath (Supra). Similarly, the Single Bench of this Court in Subal Baliarsingh case (Supra) has also not referred to the Division Bench decision as rendered in Smt. Sarala Kumari Rath case (Supra). In such background, he submitted that the later two judgments namely the judgments rendered in the case of Natabara Pandey and Subal Baliarsingh (Supra) have been pronounced per curiam and, therefore, should be over ruled so far as their observations relating to the rights of Sikimi tenant are concerned.

3.1 Secondly, he argued that after amendment of Clause (i) of Sub-Section (1) of Section-4 of the Orissa Land Reforms Act, 1960 for short "OLR Act", by Orissa Act No.29 of 1976, the Sikimi tenants being under-raiyats, the agricultural lands held by them have become heritable and transferable. This amended provision has not been taken note of in Natabara pandey case (Supra) and Subal Baliarsingh case (Supra). With regard to Sikimi tenancy vis-a-vis homestead lands, he submitted that there exits no dispute that such tenancy has been recognized long back to be heritable and transferable. Thus Sikimi tenancy is clearly heritable and transferable. Thus he strongly supported the view of the Division Bench of this Court as rendered in Smt. Sarala Kumari Rath case (Supra) and submitted that on this point, the judgment of the Division Bench as rendered in the case of Natabara Pandey and the judgment of Single Bench as rendered in the case of Subal Baliarsingh (Supra) needs to be overruled.

4. Learned counsel appearing for the private opposite party Nos.1 & 2 agreed with the submissions made by learned counsel for the petitioner and submitted that the view as rendered by a Division Bench of this Court in the case of Smt. Sarala Kumari Rath lays down correct propositions of law.

5. Mr. B.P. Pradhan, learned Additional Government Advocate referring to the Dalziel Report prepared during 1922-1932, submitted that as per the said report Sikimi tenants are under-raiyats. He also submitted that while it is settled that Sikimi tenancy in respect of homestead land is clearly transferable and heritable as per Section 236 of the Orissa Tenancy Act, 1936 r/w Section 9 of the "OLR Act" however, with regard to agricultural land, he submitted t