DURYODHAN JENA vs BAIKUNTHA NATH SAMAL AND ANOTHER

DR.A.K.RATH, J.

This appeal is by defendant no.1 against a confirming judgment.

Plaintiff-respondent no.1 instituted the suit for declaration of title over the Schedule-B property, confirmation of possession and in the alternative for

recovery of possession, in the event he is dispossessed during pendency of the suit. The case of the plaintiff was that the suit land originally belonged

to Rani Saubhagya Manjari Singh Mandhata of Nayagarh. Father of the plaintiff was a tenant under the said Rani prior to the commencement of the

Orissa Land Reforms Act (in short, “the O.L.R. Actâ€). He was in possession of Ac.7.00 dec. of land appertaining to sabik plot no. 130/43 of

mouza-Gochhabari. His father filed an application under Sec.36-A of the O.L.R. Act before the Tahasildar-cum-Revenue Officer, Nayagarh, which

was registered as O.L.R. Case No. 29 of 77. By order dated 28.02.77, the Revenue Officer declared his father as raiyat in respect of the suit land.

Fair and equitable rent was fixed. The defendants have no semblance of right, title and interest over the suit land. Being emboldened by order passed

in mutation case no. 3615 of 85, defendant no.1 created disturbance in his possession.

The defendant no.1 entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendant no.1 is that

he is in possession of the suit land since 1965. His possession has been reflected in the remarks column of the Hal R.O.R. The land was mutated in

his name in mutation case no. 3615 of 1985. The alternative plea of the defendant is that he has acquired title by way of adverse possession. The

defendant no.2, Collector, Puri, filed a separate written statement supporting the stand of the plaintiff.

On the inter se pleadings of the parties, learned trial court struck six issues. Parties led evidence, oral and documentary, to substantiate their case.

Learned trial court decreed the suit holding, inter alia, that the plaintiff’s father was declared as tenant in respect of the suit land under Sec.36-A

of the O.L.R. Act. After his death, the plaintiff remained in possession of the land. The Revenue Officer has settled the land in the name of the father

of the plaintiff in accordance with the provisions of the O.L.R. Act. Placing reliance of the report of the civil court commissioner and evidence on

record, it held that the Schedule-A land relates to Schedule-B land. The defendant no.1 has not perfected title by way of adverse possession. The

plaintiff has acquired title over the suit land. Unsuccessful defendant no.1 filed T.A. No. 14 of 1994 before the learned Civil Judge (Senior Division),

Nayagarh, which was eventually dismissed.

The Second Appeal was admitted on the substantial questions of law enumerated in ground nos.(i) and (ii) of the appeal memo. The same are:-

“(i) Can the order of settlement in a proceeding under Sec. 36-A of the O.L.R. Act be challenged in a civil suit ?

(ii) Can the plaintiff’s suit be maintainable for declaration of his exclusive title when admittedly there are other claimants, even though the plea of

non-joinder of necessary party has not been specifically taken in the written statement ?â€​

Heard Mr. Bhubanananda Mishra on behalf of Mr. S.N. Mishra, learned counsel for the appellant and Mr. Ram Prasad Mohapatra, learned

Additional Government Advocate for the respondent no.2. None appeared for the respondent no.1.

Mr. Mishra, learned counsel for the appellant submitted that the mandatory provisions of Sec.36-A of the O.L.R. Act have not been complied with

by the Revenue Officer before the settlement of land in favour of the father of the plaintiff. The suit land is a part of the vast patch of land. The suit

land is not identifiable. He further submitted that the father of the defendant no.1 was a tenant in respect of the suit land. In mutation case, the land

was mutated in the name of the defendant. He further submitted that the original order dated 28.02.77 is not available in the case record. The plaintiff

filed a carbon copy of the order dated 28.02.77, which is marked as Ext.1. There is no endorsement in the O.L.R. case record that certified copy has

been issued to the plaintiff. Hence genuineness of Ext.1 is doubtful. The settlement under Sec.36-A of the O.L.R. Act is illegal. The Revenue Officer

has no jurisdiction to entertain the petition. He further submitted that the witnesses examined by the plaintiff stated that they have no idea about the

number of plots. P.W.4 deposed that he has not signed any proclamation, although he has signed proclamation in O.L.R. case. The evidence of P.W.4

is not trustworthy. P.W.5 made a prevaricating statement. P.W.4 and 5 are enemies of the defendant no.1. If there two sets of evidence, that set of

evidence which is supported by documentary evidence is to be preferred to the other set. Defendant no.1’s tenancy stands admitted and oral

evidence of his possession is supported by Exts.C, D and documents marked as Exts.X and X/1. The possession of the defendants is probable. The

house of the plaintiff is 40 k.ms. away from the suit village. It is not the case of the plaintiff that he is in possession through any tenant or farm

servant. The deposition of the evidence of the defendants has been ignored by the courts below. He further submitted that the courts below committed

a manifest illegality and impropriety in placing reliance on the R.I.’s report vide Ext.15. The Commissioner has not examined the records of

mutation case. The inspection was conducted in a perfunctory manner. To buttress his submission, he placed reliance on the decision of this Court in

the case of Ananda Chandra Sahu (dead) and after him Upendra Prasad Mahapatra and others v. Ananta Khuntia and others, 55 (1983) C.L.T. 505.

Per contra, Mr. Mohapatra, learned Additional Government Advocate for the respondent no.2 submitted that the ceiling proceeding was pending

against Rani Saubhagya Manjari Singh Mandhata of Nayagarh. Within the statutory period, the father of the plaintiff made application under Sec.36-A

to declare him as raiyat in O.L.R. Case No. 29 of 77. All the formalities have been completed before passing of the order. The said order has attained

finality. The same cannot be questioned by defendant no.1. He relied on the decision of this Court in the case of Jugal Kishore Murmu v. State of

Orissa, 59 (1985) C.L.T. 543.

In Bhikari Sahu and others vs. State of Orissa and others, I.L.R. (1975) Cuttack 843, a prayer was made to declare that provision contained under

Sec.37-A as well as certain other provisions of O.L.R. Act ultra vires the constitution. A contention was made that if the tenant was in possession of

more than the ceiling area qua tenant, how can Sec. 36-A of the Act can be worked out ? The Division Bench of this Court held that the provision

relating to ceiling under Sec.37-A of the Act is in relation to a land-holder or a raiyat or as both, but has nothing to do with a tenant as defined in

Sec.2(31) of the Act. It is true that under the Act, personal cultivation of the ceiling area is contemplated, but there could still be a tenant in respect of

lands held by a privileged raiyat. In regard to such tenanted holdings, a return is not necessary to be filed. This is clear also by reference to Sec.40-A

of the Act. The land held by a landholder or a raiyat qua tenant is not intended to be a component part of the ceiling area. If, however, any land held

by a tenant in his possession gets converted into his raiyati holding, liability to make a return arises and in framing the ceiling, this becomes a necessary

part for consideration. As by virtue of proceedings under Sec.36-A of the Act tenanted holdings are likely to be converted into raiyati and in respect of

such acquisition, the tenant in his role as raiyat has to make a return, provision has been made for filing of a revised return. The Court further

observed that since the Legislature in its own wisdom has allowed a two-year timelimit to the tenant for making an application under Sec.36-A and

has bestowed the suo motu jurisdiction on the Revenue Officer to be exercised within a further extended period, it would mean that even if a return is

made under Sec.40-A of the Act, determination of the ceiling area cannot be undertaken until the claim of the tenant for conversion of the tenanted

holding into raiyati status or the timelimit for exercise of suo motu jurisdiction for conferring on the tenant the said right has expired. It is only upon a

determination of the tenant’s claim for raiyati status that the ceiling area in the hands of the land-holder or raiyat can be finally determined. Once

the ceiling is determined and the surplus land is dealt with as provided under the Act, there is no room for the landholder or the raiyat to get back the

deficit in his ceiling- a situation not contemplated in the scheme. Since the legislature has not indicated that the ceiling area must be determined before

the tenant’s right under Sec.36-A or 36-B be decided, objection against Clause (d) of Sec.39 raised in the manner indicated above cannot be

viewed with any seriousness.

In Jugal Kishore Murmu (surpa), the petitioner claimed to be a tenant under Maharani Premkumari Devi of Baripada. She possessed the lands

beyond the ceiling limit fixed under the Act for which O.L.R. Case No. 90 of 1975 was initiated. The Revenue Officer determined 173.89 acres to be

the ceiling surplus land. The draft statement was confirmed under Sec.44(1) of the O.L.R. Act. The same was published on 20.07.1976. Shortly

thereafter, on 06.08.1976, the petitioner made an application under Sec.36-A of the Act before the Revenue Officer for declaration of the land in his

cultivation as a tenant to be non-resumable and to determine the fair and equitable rent. The application was rejected on the ground that the land was

vested in the State and as such it is not maintainable. The petitioner filed a revision before the Land Reforms Commissioner to move the Board of

Revenue to revise the order, which met with the same fate. He approached this Court. Taking a cue from the decision in the case of Bhikari Sahu

(supra), this Court held that the Revenue Officer ought not to have determined the surplus land in the hands of Rani Premkumari before expiry of the

period statutorily provided for an application under Sec.36-A. Accordingly, the order of the Revenue Officer as well as the order confirming the

statement as a result of which the land has vested, have been quashed.

The next question crops up as to whether the order of settlement in a proceeding under Sec.36-A of the O.L.R. Act can be challenged in a civil

suit ? In the instant case, the order passed by the Revenue Officer in O.L.R. Case No. 29 of 1977 has not been challenged by any party. The order

has attained finality. The petitioner has neither filed the revision before the Board of Revenue nor writ application before this Court. He has also not

filed any counter-claim. There is no material on record that the mandatory provisions of Sec.36-A of the O.L.R. Act have not been complied with.

The State supported the stand of the plaintiff.

The assertions of the defendant no.1 as a tenant is unfounded and baseless. There is no material on record that defendant no.1 is a tenant.

The matter may be examined from another angle. The defendant no.1 claimed to be a tenant. Simultaneously he took the plea that he has

perfected title by way of adverse possession. Claim of title to the property and adverse possession are mutually inconsistent. In Annasaheb

Bapusaheb Patil and others Vrs. Balwant alias Balasaheb Babusaheb Patil (dead) By Lrs. and heirs and others, (1995) 2 SCC 543, the apex Court

made an in-depth analysis of claim of title and claim to adverse possession over the property. The apex Court held:

“Where possession can be referred to a lawful title, it will not to be considered to be adverse. The reason being that a person whose possession

can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of

another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation.

Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no tide at all.â€​

The apex Court in the case of L.N. Aswathama and another v. P. Prakash (2009) 13 SCC 229 held :

“To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be

physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that

long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus

possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is

renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period

for prescription will not commence.â€​

The courts below, on an anatomy of the pleadings and evidence on record, came to hold that in O.L.R. Case the father of the plaintiff was

declared as a tenant. It negatived the plea of adverse possession of the defendant no.1. Defendant no.1 has no title over the suit land. There is no

perversity or illegality in the said findings. Further, there is also no material on record that the suit land is a part of the vast patch of land. The land is

identifiable. The substantial questions of law are answered accordingly.

Ananda Chandra Sahu (supra) is distinguishable on facts. The Division Bench of this Court held that the Revenue Officer erred in law in passing

the orders under Sec. 36-A of the O.L.R. Act. There is no quarrel over the proposition of law. As held above, the order passed by the Revenue

Officer has not been challenged. The same has attained finality.

A priori, the appeal fails and is dismissed. There shall be no order as to costs.