Chakradhar Jued vs Tankadhar Bhoi and Others

K.S. Raghupathi, Member

This is an application u/s 8(2) of the Orissa Offices of Village Police (Abolition) Act to revise the order of the Collector, Bolangir passed on 20 March 1975 in his case Revenue Appeal No. 15 of 1972.

There were 14.35 acres of jagir lands in the village Kaseipali, P.S. Loisingha, District Bolangir. On abolition of the office of village Police, the Tahsildar settled Ac. 5.63 with Tankadhar Bhoi, the holder of the office of Jhankar and Ac. 1.54 with Hema Jued as a cosharer, 7.18 Acres, constituting the other fifty percent of Jagir Lands were reserved in terms of the proviso to Section 3(1) to be enjoyed by the Jhankar or discharging the duties of the Village Priest. In so doing the objections of Chakra Jued, among others, were overruled. Chakra Jued went up in appeal. It was dismissed.

In the application for revision it is contended that Chakradhar Jued was in possession, as a cosharer, of 7.45 acres and that the Court amin had found that he was in possession of 5.24 acres. It is also contended that it was Chakradhar Jued who was discharging the duties of the Village Priest and that therefore he should have been settled with the land in his possession.

I am afraid, the act does not contemplate settlement of the Jagir Lands set apart for the performance of the duties of a Village Priest. It is quite clear from the proviso to Section 3(1) which reads -

Provided that any person being a Jhankar or Kalo who, in accordance with any local law, custom, usage or practice, was immediately before the appointed date discharging duties of a Village Priest attached to the office of such Jhankar or Kalo, shall continue to hold fifty per centum of the jagir lands, if any for so long as he continues to discharge the said duties.

that the fifty per centum of the jagir lands which are associated with the discharge of the duties of a Village Priest cannot be settled with rights of occupancy therein. Such fifty per centum can continue to be enjoyed by the Jhankar or Kalo for as long as he continues to discharge the duties of the Village Priest. When he ceases to perform the duties it is to be enjoyed, without occupancy rights therein, by such other person as may be appointed by the competent revenue authority to perform the duties of the Village Priest. It is for this reason that Executive Instruction 60 of the Executive Instructions of the Board of Revenue stipulates -

When the tenure of a Jhankar or a Kalo who is also discharging the duty of a Village Priest is involved, the Proceedings shall relate to only half of his holding. Such cases should be dealt with separately and an initial enquiry should be conducted to determine the plot numbers that will be the subject-matter of these proceedings. An order specifying this lead should be made prior to the order referred to in paragraph 9 above. As far as possible this apportionments will aim at selection of plots of representative classification in compact blocks.

It is argued by Mr. R.C. Patnaik appearing for the applicant that the finding of possession in 1907, in the 145. Code of Criminal Procedure proceedings should be worked backwards by inference, to the appointed date in 1965. In this he relies on the decision of the Supreme Court in Ambika Prasad v. Ram Ekbal Rai AIR 1966 S.C. 605-

If a thing or a state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and backwards may sometime be drawn. The prosecution of future continuance is noticed in illustration (d) to Section 114 of the Evidence Act. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a separate illustration. The rule that the presumption of continuance may operate retropectively has been recognised both in India and in England. This is a rule of evidence by which one can presume the continuity of things backwards. The presumption of continuity weakens with the passage of time. How far the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances.

I would agree that, as has been observed in Secretary of State for India in Council Vs. Upendra Narain Roy and Others, , it is the elementary principle that

proof of the existence at a particular time of a fact of a continuous nature gives rise to a rebuttable presumption, within logical limits, that it exists at a subsequent time or has previously existed. The limit of time within which the inference of continuance possesses sufficient probative force to be relevant, must obviously vary with each case always strongest in the beginning, the inference steadily diminishes In force with lapse of time, at a rate proportionate to the quality of a permanence belonging to the fact in question, until it ceases or perhaps is supplanted by a directly opposite inference.

Inference of continuance whether backwards or forwards is an inference of fact and may therefore be rebutted. Accordingly a decision in a 145, Code of Criminal Procedure proceeding in regard to possession of any specific plot of land can be taken forwards or backwards, within reasonable limits to the appointed date but it is always subject to rebuttal. However, in coming to a finding on the fact of actual cultivating possession on the appointed date one must rely primarily on the records delivered by the Village Police Officer in pursuance of Section 5(1) and on the local enquiry. This needs to be refined in the crucible of judicial determination in accordance with the procedure prescribed in Rule 13. It is mandatory to publish the draft Jamanbandi, inviting objections and to dispose of objections to any entry therein in accordance with Rule 13.

In the present case the appeal to the Collector was a premature one. The order of the Tahsildar passed on 31 July 1972 was for the draft Jamanbandi to be prepared. There is no evidence that the draft Jamanbandi was published in accordance with Rule 12 or that objections beard under Rule 13.

The learned Collector erred in going into the merits of the case. He should have remanded the case with the direction that the draft Jamanbandi be published inviting objections and objections if any heard and final orders passed under Rule 13.

I would accordingly quash the orders of the lower authorities and direct that an order be passed first in accordance with Executive Instruction 60 specifying the plot numbers of the lands which would be enjoyed by the Jhankar for discharging the duties of the Village Priest and a draft Jamanbandi published thereafter in respect of other lands in accordance with Rule 12. Objections should be heard and disposed of in accordance with Rule 13.

Ordered accordingly.