Ananta Charan Panda and Others vs Auntha Subudbi and Others

Narasimham, C.J.—This is a revision petition by the second party against an order u/s 145, Code of Criminal Procedure passed in favour of the first party (opposite party) by the Subdivisional Magistrate of Athagarh.

The disputed property consists of 22.90 acres situated in village panchgaon, and known as Barabati Chak in which there are admittedly several mango trees. The land is recorded in the name of a Deity, Prasanna Purushottam Das with the Raja of Tigiria as its Marfatdar. The property is thus said to be the private Devottar of the said Deity. Sometime in 1950 the Raja of Tigiria acting as the marfatdar of the Deity settle 24 ac. 90 cents of land in favour of several persons who are all members of the fire party in the present proceeding. But there was great opposition from the residents of the village and also of neihbouring villages against such a settlement on the ground that the land was used as Gochar by the villagers and that the settlement of the same with the members of the first party for purpose of cultivation would affect their grazing rights. It also appears that due to pressure from the villagers two of the settles, namey, Dula Bewa and Mahadeb Sahu (witness No. 12 of the second party) went over to the side of the villagers, surrendered their lands, and executed documents to the effect that neither they nor the other members of the first party were in possession of the lands. Hence, though the original proceeding u/s 145, Code of Criminal Procedure was in respect of 24 acres, 90 cents, the learned Magistrate passed the final order only in respect of 22 acres 90 cents in view of the disclaimer by Dula Bewa and Mahadeb Sahu. The right of the Raja of Tigiria in the said piece of land was not in any way challenged and some members of the second party have also frankly admitted that the Ruler''s agents used to pluck and appropriate the mangoes. The limited question in controversy between the parties, therefore, is whether the villagers have grazing rights over the disputed land as alleged by the second party or else : whether they have no such rights and the Raja of Tigiria, as marfatdar of the Deity, is entitled to settle the same on patta with the first party.

The settlement was said to have taken place in 1920 and the present proceeding u/s 145, Code of Criminal Procedure was initiated and the 17th August 1954. The first party claimed to have entered into possession since the date of settlement and to have actually raised various crops such as paddy, Kulthi, etc., till the date of initiation of the proceeding. On the other hand, the second party emphatically denied the possession of the first party and alleged that the settlement was only a paper transaction and that the first party were never able to obtain possession in view of the fierce opposition of the villagers and threat of Satyagraha by them under the leadership of one Bipin Bihari Patnaik, ex-Dewan of Tigiria, and that there was continuous litigation between the parties from the date of settlement till the commencement of the proceeding.

As already pointed out, the second party do not claim any right over the land except grazing right. So long as this right is safeguarded they cannot obviously have any objection to the land being used by the owner, namely Deity Prasanna Purushottam Deb through its marfatdar the Raja of Tigiria in any manner he liked. Their objection (sic) the settlement of the lands with the first party arose out of their apprehension that once regular cultivation operations commence on the (sic) and they will not be permitted to graze their cattle over the same and thus the grazing rights would be affected. They do not lay any claim to the mango trees. There was some evidence to show that the fruits which fell on the ground and some twigs from the trees used to be appropriated by the villagers, but it is admitted that the fruits from the trees were plucked by the agents of the Raja of Tigiria.

Before the lower court the first party applied for converting the proceeding to one u/s 147, Code of Criminal Procedure . But that court rejected this prayer and continued the proceeding u/s 145 Code of Criminal Procedure . I think the more appropriate proceeding would be one u/s 145 inasmuch as the real dispute is as regards the existence or otherwise of the grazing right of the villagers over the disputed land. This dispute will appropriately come u/s 147. But as the procedure for a proceeding u/s 145 it is open to this Court to pass a final order u/s 147 even though the proceeding was started u/s 145, Code of Criminal Procedure Section AIR 1989 Patna 206, 37 Orl. Law Journal 378, and Ch. Gajraj Singh Vs. Emperor, .

The lower court held that the first party were in actual possession of the disputed property and hence passed a final order in their favour. The first party consist of several persons and each of them was claiming only a parcel of the disputed property on the basis of the settlements made in 1950. 12 witnesses were also examined on behalf of tat party. Though the lower court has believed their evidence as regards the actual cultivation of the disputed property, I am not satisfied that this finding is correct. None of the witnesses for the first party can be said to be entirely disinterested or otherwise reliable. Thus witnesses 1 and 2 for the first party are members of that party themselves. Witness 3 is a Muliah of one of the members of the first party. Witness 4 professes to be a disinterested witness but he goes to the extent of saying that there was no dispute between the parties at all either now or before. Though, as I shall show presently, there is ample documentary evidence to show that the parties have rushed to the criminal courts almost from the date of the settlement. Witness I admits that he worked as a Muliah of Bhagabat Patnaik, a member of the first party. P.W. 7 claims to be a boundary witness but he could not give the plot number of his own land adjoining the disputed land nor could he give the names of all the persons who have taken settlement of parcels of land out of Barabati Chak. Witness 9 is a brother of witness 4. He is a teacher in Athagarh School and his competence to depose about actual possession is open to grave doubt. Witnesses 10 and 11 are admittedly (sic) tenants of the first party.

Thus, the oral evidence of possession on behalf of the first party is not at all satisfactory, but there is ample documentary evidence to show that ever since the date of settlement the villagers had organized very stiff opposition and it is highly improbable that the members of the first party could have cultivated the land. It appears that a Satyagraha Committee was formed with Bipin Behari Patnaik as Chairman to oppose the cultivation of the disputed property and his report dated the 9th June 1951 (Ext. 2) shows that the movement was suspended only when some of the settles agreed to give up cultivation. There was also a Police case instituted by one Arta Bandhu Patnaik (witness 2 for the first party) against Purna Rout (member No. 19 of the second party) and two other persons on the 10th October 1953 for theft of a mango tree. Bhikary Naik of the first party (witness 2) while deposing in another case on the 22nd October 1954 admitted that for the last two years he did not raise any crop on the lands settled with him, nor did he go over there to cultivate, but while giving evidence in the present proceeding he claims to have cultivated kulthi crop in 1952 and 1953 and when his attention was drawn to his previous deposition he pleaded lapse of memory.

When the oral evidence of witness is thus weighed against the background of the broad probabilities of the case and the fierce opposition of the villagers leading to threat of Satyagraha and institution of a criminal case it is difficult to believe the evidence of the first party''s witnesses that they actually raised any crops. On the other hand it appears more probable that the settlement in the favour of the members of the first party was made by the Raja of Tigiria against the opposition of the villagers and since the date of settlement there has been a continuous friction and struggle for possession by the members of the first party.

This conclusion, however, does not necessarily mean that the second party''s case based on the existence of a grazing (sic) right over the disputed land is completely established. They have been claiming the land as Gochar though they have not stated clearly in their evidence as to whether the grazing right was exercised throughout the year, or else whether it was purely seasonal. But the oral evidence of their own witnesses allows that the grazing right over the disputed land was not exercised during the monsoon season. Thus, Madan Mohan Sahu (witness 1 for the second party) admitted in cross-examination that "cattle of Panchgaon graze in mundipaguli when it cannot graze in Barabati Bagayat in rainy season". Similarly, witness 3 of the second party, Giridhari Sahu admitted in cross-examinaon : "Cattle of our village at times go to Sorispal hill to graze. They go when Barbati land becomes muddy". Witness 7 of the second party, Biradhar Rout also admitted in cross-examination : "I have seen, on a number of days, cattle of Panchgaon grazing on the disputed land except the rainy season". Again, witness 8 of the second party Ghand Dehuri admitted : "Cattle of my village and Panchgaon and some other villages go to Mundipaguli hill and Sorsipal hill for grazing in the rainy season. At other times they go to Barbati Padia for grazing". Witness 11, Chakra Behera who is himself a cowherd has also spoken as follows : "In rainy season the cattle graze in some fallow land between Sorsipal and Mundipaguli hills". From these answers elicited from the witnesses of the second party in cross-examination it seems clear that the cattle of the villagers do not graze on the disputed land during the Rainy season. On the other hand, during that season they graze in the neighbouring hills known as Mundipaguli and Sorsipal. Where is also a guarded admission in favour of the 2nd party by witness 9 of the first party, namely Pathani Charan Patnaik who stated that "cattle graze on the disputed land when it is fallow". The exact reason for their avoiding the disputed land during the rainy season has not been brought out by re-examination of these witnesses, though there is some indication in the evidence of witness 3 Giridhari Sahu to the effect that during the rainy season Barbati Chak becomes muddy. The disputed land is admittedly not recorded as Gochar. The claim of the second party of their right of user was for a long time. It is true that for the purpose of Section 147, Code of Criminal Procedure there must be evidence of "user" as of right and not by way of mere licence or permission. It was urged that merely because the owner of that land allowed the cattle (sic) graze over it when it was lying fallow, no "right" to graze over the land can be said to be established. Grazing rights, if any, over the disputed land will have to be decided ultimately by the Civil Court and I do not wish to say anything in this order which might prejudice either party in the subsequent civil litigation. It is sufficient to say that the user of the land for several years openly and peaceably by the villagers for the purpose of grazing (except during the monsoon season) may justify the conclusion that the user was "as of right" for the limited purpose of Section 147, Code of Criminal Procedure .

It is true that the second party''s claim to exercise grazing rights over the disputed land during the non-monsoon season is not based on any documentary evidence, but purely on oral evidence. Of the 12 witnesses examined by the second party, three namely, Madan Mohan Sahu (witness 1) Giridhar Sahu (witness 3) and Shankar Padhan (witness 4) are members of the second party. Their last witness Mahadev Sahu was one of those who was originally a member of the first party and had taken a portion of the land on lease from the Raja of Tigiria. But on the objections of the villagers he, by a document, relinquished his rights under the lease. Of the other witnesses for the second party, Lokanath Mohapatra (witness 2) is a resident of Panchgaon village. Biswanath Padhan (witness 5) is doubtless a resident of another village H miles away and he has no lands near the disputed land, but he claims to have personal knowledge of the grazing right over the disputed land in as much as his own buffaloes, as well as the buffalos of other persons of his village are used to graze on the disputed land. Sudarsan Rand (witness 6) has got lands close to the disputed lands and is thus competent to speak about the grazing right of the villagers over the same. Similarly Birdbar Rout (witness 7) though a resident of a neighbouring village, has got lands case to the disputed land. Witness 8 Ghand Dehuri also cultivates lands near the disputed land. Witness 9, bham bhunath Padhan is a resident of a village three miles away and be has not got lands near the disputed land. His evidence on the question of grazing right may be open to some doubt. The other two witnesses for the second party, namely, Sudarsan Das (witness 10) and Chakta Bebera (witness 11) are cowherds who used to graze their cattle on the disputed land. Thus the witnesses examined by the second party to show that the cattle of Panchgaon and neighbouring villages used to graze on the disputed land at all periods of the year except during the monsoon period, seem to be on the whole more reliable than the witnesses for the first party. I am therefore of the view that for the limited purpose of Section 147, Code of Criminal Procedure the second party have established their right of user of the disputed land as a grazing ground except during the rainy season.

Though the exact period of the rainy season has not been brought out in evidence, it may be taken as four months from the 15th June to the 15th October.

I would, therefore reverse the order of the lower Court and declare that the second party are entitled to graze their cattle on the disputed property except during the four months, from the 15th June to the 15th October, every year, and prohibit all interference with this right until it is reversed or modified by the decision of a civil court of competent jurisdiction. The second party also should not interfere in any way with the right of the Raja of Tigiria as marfatdar of Deity Prasanna Purushottam Dev, and of his lessees (1st party) to use the land in any manner that might appear convenient to them so long as the aforesaid right of grazing of the second party is not interfered with.

The revision petition is disposed of accordingly.