Occupancy rights under the Orissa Estates Abolition Act require credible evidence and authority, with any settlement lacking jurisdiction being impermissible.

JUDGMENT:

R.K. PATTANAIK, J.

1. The appellant has filed the instant appeal under Section 100 of the Civil Procedure Code, 1908 questioning the correctness of the impugned judgment in Title Appeal No.38 of 1999, whereby, the judgment and decree in Title Suit No.90 of 1996 stands set aside on the grounds inter alia that the same is against the weight of evidence and not in accordance with law.

2. The plaintiff as appellant instituted the suit for declaration of her occupancy right over the suit schedule land and permanent injunction against the respondents. The State contested the suit with a joint WS filed by the respondents. The case of the plaintiff is that C.S. Khata No.69 stood recorded in the name of the then District Board, Balasore with status ‘Jamadharjya Jogya’ and later, it was leased out in favour of her grandfather, who possessed the same by constructing a thatched house over it. It also pleaded that in the year 1984, the plaintiff applied for rent fixation in respect of the suit land registered as R.F. Case No.3105 of 1984, wherein, respondent No.3 settled the suit land by order dated 30^th October, 1985 and issued rent schedule declaring her as a raiyat. With the above pleading, the occupancy right was claimed by the plaintiff, considering which, the court of 1^st instance decreed the suit. In other words, objection of the defendants was rejected declaring the plaintiff’s occupancy right over the suit land.

3. The respondents challenged the findings of the court in appeal. The learned Lower Appellate Court overruled the decision in Title Suit No.90 of 1996 and allowed the appeal with the conclusion that such a direction to record the suit land in favour of the plaintiff in Misc. Case No.2899 of 1988 is impermissible under law and against the provisions of the Orissa Estates Abolition Act, 1951 (hereinafter referred to as ‘the Act’). It has been further concluded that the plaintiff could manage to settle the suit land in her favour in connivance with the local revenue authority, who did not have the power to do so and also while dealing with a suo motu resumption proceeding. Being aggrieved of, the plaintiff filed the instant appeal on the ground that the learned Lower Appellate Court could not have ignored recognition of her occupancy status and when acceptance of rent stands proved and never challenged at any point of time.

4. Heard Mr. Mohanty, learned counsel for the appellant and Mr. Babu, learned AGA for the State appearing for the respondents.

5. Mr. Mohanty, learned counsel for the appellant submits that during 1928 settlement, Sabik RoR in respect of suit land under Khata No.69 was published in the name of District Board, Balasore liable to fixation of fair and equitable rent which was leased out in favour of the appellant’s grandfather. It is contended that all the District Boards were abolished by virtue of Odisha Act

7 of 1960 with effect from 26^th January, 1961 and accordingly, the land with District Board at Balasore stood vested with the Government in Revenue Department free from all encumbrances except the tenancy right in view of Section 8 (1) of the OEA Act, inasmuch as, all the tenants under the intermediary continued to hold the lands under the State Government. According to Mr. Mohanty, R.F. Case No.3105 of 1984 was initiated by respondent No.3 under the OEA Act for fixation of rent in respect of the suit land measuring an area Ac.0.27 decimal, wherein, the original lease deed and rent receipts prior to 1960 were filed and by order dated 30^th October, 1985 rent was fixed and rent schedule (Ext.2) was prepared leading to the collection of arrear rent and salami vide Ext.3