Dhaneswar Das & Others vs State Of Orissa & Another

Dr. A.K.Rath, J

 This is plaintiffs’ appeal against a reversing judgment in a suit for declaration of title and permanent injunction.

Case of the plaintiffs was that the suit land belonged to Ex-Ruler of Aul. The Raja of Aul settled the suit land in the name of their father. Their

father reclaimed the suit land and made it fit for cultivation. He was in possession of the suit land. He constructed a house over a portion thereof. He

used to pay rent to the Ruler. After his death, they are in possession of the suit land. After vesting, the Tahasildar refused to receive the rent. The suit

land was recorded in the name of the State. When the defendants threatened to dispossess them, they instituted the suit seeking the reliefs mentioned

supra.

Defendants entered appearance and filed a written statement pleading, inter alia, that the suit is hit by the Orissa Communal Forest and Private

Lands (Prohibition of Alienation) Act, 1948 and barred for want of notice under Sec.80 CPC. They plaintiffs and their father are not in possession of

the suit land. The suit land is in possession of the State.

Stemming on the pleadings of the parties, the trial court struck four issues. Parties led evidence, both oral and documentary. The trial court decreed

the suit holding that the plaintiffs are tenants in respect of the suit land. They have right, title, interest and possession over the same. Felt aggrieved,

defendants filed Title Appeal No.6 of 2001 before the Addl. District Judge, Kendrapara. The appellate court came to hold that the suit was instituted

two months prior to institution of the suit under Sec.80 CPC. The transaction is hit by Sections 3(1) and 4(1) of the Orissa Communal Forest and

Private Lands (Prohibition of Alienation) Act, 1948 (Orissa Act 1 of 1948). Held so, it allowed the appeal.

Heard Mr. P.K. Rath, learned counsel for the appellants and Mr. R.P. Mohapatra, learned AGA along with Ms. Samapika Mishra, learned ASC

for the State.

Mr. Rath, learned counsel for the appellants submits that originally the suit land belongs to Raja of Aul, who was the ex-intermediary. Father of the

plaintiffs approached the ex-intermediary during Dola festival of the year 1946 to settle the land in his favour. The ex-intermediary accorded

permission to their father and directed officer to demarcate the land. The land was demarcated. His father re-claimed the suit land and invested huge

amount. On 25.9.1947, the land was settled in favour of the father of the plaintiffs. Accordingly, patta was issued in his name. He was in possession

of the suit land till vesting under the OEA Act. He died in the year 1996. Thereafter, the plaintiffs are in peaceful possession and enjoyment of the suit

land. They have constructed a thatched house over the same. Their possession has been reflected in the ROR. The plaintiffs are the occupancy

raiyats. The trial court, on a threadbare analysis of the evidence as well as pleadings, came to hold that the plaintiffs have title over the suit land. The

appellate court did not delve into the matter.

Per contra, Mr. R.P. Mohapatra, learned AGA along with Ms. Samapika Mishra, learned ASC for the State submits that there was no pleading

with regard to occupancy raiyat.

In State of Orissa and another v. Smt. Pramilabala Sur, 2018 (II) CLR 863, this Court held :

“The word 'raiyat' has been defined in Sec.5(2) of Orissa Tenancy Act. It means primarily a person who has acquired a right to hold land for the purpose of

cultivating it by himself, or by members of his family or by hired servants, or with the aid of partners, and includes also the successors-in-interest or persons who

have acquired such a right. Sec.23(1) of the Act provides that every person who, for a period of twelve years whether wholly or partly before or after the

commencement of this Act, has continuously held as a raiyat land situate in any village, whether under a lease or otherwise, shall be deemed to have become, on the

expiration of that period, a settled raiyat of that village. Sec.24(1) postulates that every person who is a settled raiyat of a village within the meaning of Sec.23 of the

Act shall have a right of occupancy in all land for the time being held by him as a raiyat in that village.â€​

There is no pleading that the father of the plaintiffs was the settled raiyat of the village and held the land as raiyat. In view of the same, the

contention of Mr. Rath, learned counsel for the appellants fails.

Record-of-right neither creates title, nor extinguishes title. Merely because the name of the father of the plaintiffs has been recorded in the

remarks column of the ROR, the same does not confer any title.

Originally the suit land belongs to the ex-intermediary. It vested in the State after coming into operation of the Orissa Estate Abolition Act. Even if

the Act 1 of 1948 is not applicable to the facts of the case, the plaintiffs have no title over the suit land.

Reliance placed on rent schedule, Ext.16, is misplaced. The plaintiffs assert that they are occupancy raiyats. Simultaneously they claimed that they

are the deemed tenants. The pleadings will show that they have taken a plea that they have perfected title. The plaintiffs are not sure as to whether

they are occupancy raiyats or deemed tenants or perfected title by way of adverse possession.

In view of the foregoing discussions, the appeal is dismissed, since the same does not involve any substantial question of law. No costs.

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