Banchhanidhi Mohapatra and Others vs Basudev Das

R.N. Misra, J.—Plaintiffs have appealed against the reversing judgment and decree of the learned Additional District Judge of Puri in a suit for declaration that the order of the Collector under the Orissa Estates Abolition Act setteling the disputed land with the Defendant is invalid and does not create any interest in the Defendant over it. Alternately Plaintiffs prayed that if it be found that the Defendant has title over the disputed property, the right over a pathway running over it be declared and the Defendant be restrained by permanent injunction from interfering with Plaintiffs'' right.

Plaintiffs sued in their representative capacity on behalf of the villagers of Sanasolahala as provided under Order 1, Rule 8 of the Code of CPC claiming that the land under plot No. 93 provided a passage used by the public as of right from time immemorial and though the same was included in the bahel khata of the attendant and others, it had been recorded as a gohiri in the current Settlement record-or-rights. The public at large used it as a rastha for going to the gochar lands of the village and the cattle of the village passed over this land. After abolition of the estate, the intermediaries preferred a claim u/s 7 of the Estates Abolition Act and the Tahsildar as Collector under the Act rejected the claim as the land was neither agricultural norhorticulturallin the khas possession of the intermediaries as required under Chapter II of the Act, but upon Defendant''s application, settlement was ordered with him. This settlement is said to be contrary to law, inasmuch as, the procedure laid down for affecting settlement had not been followed and no opportunity had been given to the Plaintiffs to contest the Defendants claim. The order of settlement being without jurisdiction and having been made contrary to the requirements of the law is bound to be vacated.

Defendant contested Plaintiffs'' claim saying that the settlement obtained was a valid one and denied the Plaintiffs'' assertion that the disputed land was a gohiri used as a passage. Swapneswar''s claim was disallowed as he was not in possession and the Estate Abolition Collocate upon due enquiry found Defendant to be entitled to settlement. The suit was hit by the provisions of Section 39 of the Estates Abolition Act and the Plaintiffs had no cause of action.

The learned Trial Judge came to hold that the villagers had acquired the right of way over the disputed land by custom and the Civil Court was competent to enquire about the right of way in spite of the settlement of the disputed plot with the Defendant by the Estate Abolition Collector.

In appeal, the Defendant challenged the decree of the trial Court by contending that the suit was not maintainable in view of Section 39 of the Estates Abolition Act and the finding that villagers had acquired any right of way over the disputed land by custom was erroneous in law. The lower appellate Court came to hold that the Civil Court was not competent to question the settlement of the disputed plot with the Defendant by the Estate Abolition Collector inasmuch as no material has been placed before the Court to hold that the Collector had no jurisdiction to make the settlement. It further found that a right of way could be acquired only by three alternate processes as indicated in the case in Chuni Lal v. Ram Kishen Sahu ILR 15 Cal. 460, and Plaintiffs having not been able to establish acquisition of right of way in any of these three modes were not entitled to a decree. On these findings, the lower appellate Court reversed the decree of the trial Court and dismissed the suit. This reversing decree is assailed in second appeal.

Section 39 of the Estates Abolition Act provides:

No suit shall be brought in any Civil Court in respect of any entry in or omission from a Compensation Assessment-roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subject of any application made or proceedings taken under the said Chapters.

Admittedly in this case, there has been a settlement with the Defendant by an order made in a proceeding under Chapter II of the Act. Prima facie suit to challenge the settlement is barred u/s 39. As indicted by the Judicial Committee of the Privy Council in the case of AIR 1940 105 (Privy Council) :

...it is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also wen settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or statutory tribunal has not acted in conformity with the fund mental principles of judicial procedure.

This dictum of Lord Thankerton has been followed in several decisions of the Supreme Court. The Plaintiffs have, however, not been able to establish as found in the lower appellate Court any such error of procedure or violation of rule of natural justice which would vitiate the settlement. I am not prepared to take a different view in regard to this aspect. Not-withstanding the fact that there is a valid settlement of the property with the Defendant, once Plaintiffs are able to establish that they had a right of way, the same would not be wiped away unless the Defendant is able to establish that it was an encumbrance and u/s 5(a) of the Abolition Act which provides that the estate would vest in the State free from all encumbrances, the encumbrance was wiped out. Section 5(a) of the Abolition Act provides:

Not-withstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification in the Gazette under Sub-section (1) of Section 3, or Sub-section (1) of Section 3-A or from the date of the execution of the agreement u/s 4, as the cases may be, the following consequences shall ensure, namely:

(a) subject to the subsequent provisions of this Chapter the entire estate including all communal lands, and prambokes, other non-raiyati lands, waste lands, trees, orchards, pasture lands, forests, mines and minerals (whether discovered or undiscovered, or whether being worked or not, inclusive of rights in respect of any lease of mines and minerals) quarries, revers and streams, tanks and other irrigation works, water channels, fisheries, ferries, hats and bazars and buildings or structures together with the land on which they stand shall vest absolutely in the State Government free from all encumbrances and such Intermediary shall cease to have any Interest in such estate other than the interests expressly saved by or under the provisions of this Act;

"Explanation - ''Encumbrance means a mortgaged of or a charge on any estate or part thereof and includes any rights in land or other immoveable property comprised in an estate, but does not include an intermediary interest or the interest of a raiyat or an under raiyat.

The explanation of ''encumbrance'' gives the true intention of what type of encumbrance was covered by Clause (a). The meaning of encumbrance has also been indicated in a Bench decision of the Madras High Court in the case of M. Ratanchand Chordia and Others Vs. Kasim Khaleeli, . The observation of this Court in the case of Shyama Charan Mohanty v. Upendra Mohanty 39 (1973) C.L.T.1136, is also useful. Keeping these in view it is difficult to hold that a right of way already existing prior to vesting of the estate would be an encumbrance so s to be wiped out. Therefore, even if there is a vesting under the Estates Abolition Act, of the property over which right of way is claimed and that land has been established with the Defendant, if Plaintiffs are able to establish their right of way, the land in the hands of the Defendant would still be burdened with the right of way.

The next question for consideration, therefore, is have the Plaintiffs been able to establish a right of way as claimed? There are three distinct classes of rights of way as indicated in the Full Bench decision of the Calcutta High Court in the case of Chuni Lal v. Ram Kishen Sahu ILR 15 Cal. 460. Biswas, J. in the case of Harisadhan De and Others Vs. Radhika Prosad Pandit and Others, , summerized the position by saying:

... as was pointed out by Wilson J in the Full Bench decision in Chuni Lal v. Ram Kishen Sahu ILR 15 Cal. 460, there are three distinct classes of rights of way first, private rights in the strict sense the terms vested in particular individuals, and such rights commonly have their origin in grant or prescription; secondly, rights belonging to certain classes of persons or certain portion of the public, such as the freemen of a city, the tenants of a manor, or the Inhabitants of a village; and such rights commonly have their origin in custom; and thirdly, public rights in the fun sense of the term which exist for the benefit of all the King''s subjects, and the source of these is ordinarily dedication.

This view has been adopted in this Court in the case of Khandeswar Champati and Others Vs. Gokulananda Jena and Others, . It is conceded that the Plaintiffs'' claim is not that of a right of way of the first category. There is no clear plea of dedication. This is not a case where on the authority of certain decisions, from long user the dedication can be assumed. Therefore, the only way in which Plaintiffs can succeed in establishing their right of way is by proof of customary right of way. Law is fairly settled as to how a customary right is to be pleaded and when denied to be established. In the present case, there was casual plea of acquisition of a customary right and the existence of any customary right was refuted. Burden, therefore, lay on the Plaintiffs to establish acquisition of a customary right of way. The learned Appellate Judge has examined the evidence on record to find out whether such a right has been established and has negatived it. I do not find any error in the approach to the matter and the learned Appellate Judge has taken all aspects into consideration in reaching his conclusion. In second appeal, I do not think, a different view can be taken, notwithstanding the fact that in one way the matter would involve both a mixed question of fact and law. There, has been a clear finding that there are various alternate ways and a further finding that user of the passage has not been established as required by law.

The second appeal must accordingly fail and IS dismissed. I make no direction for costs.