JOGI ORAM AND ANOTHER vs JITIA ORAM AND OTHERS

Dr. A.K.Rath, J Â

Defendants 3 and 4 are the appellants against a confirming judgment.

Plaintiffs 1 to 6-respondents instituted the suit for declaration of title over the suit land along with defendants 3 to 5, set aside the order of settlement

of land in Lease Case No.52 of 1979 by defendant no.3 in favour of defendant no.4, delivery of possession and mandatory injunction. The following

genealogy would show the relationship of the parties. Budha Oram was the common ancestor of the parties. He died leaving behind his five sons,

Mali, Jitia, Jogi, Samra and Bhikhu. Mali died leaving his widow Tito, plaintiff no.4 and two daughters Ghama and Jatra, plaintiffs 5 and 6 respectively.

Mali and his brothers were separated. After the death of Mali, plaintiffs 4 to 6 are in possession of the land allotted to Mali. Jitia and others are in

possession of their respective land. The plaintiffs’ family and defendants 3 and 4 have got their ancestral rayati lands at villageBaurimunda gaon.

Budha reclaimed some Government Anabadi lands called ‘Jadabuna chak’.

The same is a part of Badkhalia chak. Budha converted the land to Berna typed land. He constructed an embankment. Due to accumulation of water

from upper region in the northern side of the hillock, embankment was raised across the Jadabuna chak to channalize the water. Anabadi lands lies

just adjacent to the sides of the embankment. After death of Budha, his sons are in possession of Anabadi land. Since Budha was an illiterate

scheduled tribe, he did not take any step to record his name. After death of Budha, plaintiffs and defendant no.3 were separated in mess and property.

In the family partition, the lands reclaimed by Budha had been partitioned among five branches in equal share except Jadabuna chak land. The same

was kept joint for convenience. Plaintiffs and defendants 3 to 5 were in possession of the same. It was further pleaded that defendant no.3

clandestinely obtained a lease patta in respect of Ac.1.02 dec. of land in favour of his son defendant no.4 from the Tahasildar, Sadar, Sundargarh,

defendant no.2, falsely stating that defendant no.4 is a landless person and living separately. Defendant no.4 is serving as a peon in Veterinary

Department in the State of Orissa. The Tahasildar granted lease patta in favour of defendant no.4 in Lease Case No.52 of 1979. Plaintiffs 1 to 4 and

defendant no.3 have perfected their title over the suit land by way of adverse possession.

Defendants 1 and 2 filed a written statement stating, inter alia, that defendant no.4 was granted lease patta in respect of Schedule-A land measuring

Ac.1.02 dec. after observing all formalities in Lease Case No.52 of 1979.

Defendant nos.3 and 5 filed a written statement denying the assertions made in the plaint. Their case is that Budha had not reclaimed the suit lands.

He was not in possession of the suit land. He died in the year 1948. After death of Budha, plaintiffs 1 to 4 and defendant no.3 were separated in mess

and property. After partition, defendant no.3 reclaimed the suit lands. He is in possession of the same. After marriage, defendant no.4 quarrelled with

his father defendant no.3 for which he was driven out from the family without giving any land for cultivation except the suit land. Defendant no.4 is in

possession of the suit lands. He applied for settlement before the Tahasildar in the year 1979. In Lease Case No.52 of 1979, the Tahasildar, after

observing all formalities, granted lease patta in favour of defendant no.4. The plaintiffs are not in possession of the suit land. Â

Stemming on the pleadings of the parties, learned trial court framed ten issues. Parties led evidence, both oral and documentary to substantiate their

case. Learned trial court held that there is no evidence on record that after death of Bhuda, his sons were in possession of the suit land. Defendant

no.4 is not a landless person. Lease patta, vide Ext.B, was granted in his favour by playing fraud. Lease patta is not legal and valid. Held so, it decreed

the suit in part. Felt aggrieved, defendant nos.3 and 4 filed Title Appeal No.28 of 1986 before the learned District Judge, Sundargarh. Learned

appellate court held that neither the plaintiffs nor defendants 3 to 5 have right, title and interest over the suit land. The settlement of the suit land with

defendant no.4 in Lease Case No.52 of 1979 is illegal and inoperative. Held so, it allowed the appeal.

The second appeal was admitted on the substantial questions of law enumerated in Ground Nos.3 and 5 of the appeal memo. The same are -

“3) For that the onus being on the plaintiffs to prove noncompliance of the provisions of law before the order of settlement of the disputed land was

made, the courts below acted illegality in placing the burden of the defendant no.4 (appellant no.2) on the basis of the mere denial by the plaintiffs, a

proposition not supported by law since the normal inference is that the procedure prescribed by law was duly followed in view of the provisions of

Section 114(e) of the Evidence Act particularly when the plaintiffs have failed to rebut the inference and as such the judgment and decree of the

courts below are liable to be set aside.

For that the jurisdiction of the Civil Court being only to examine as to whether the settlement of the disputed land has been made by the appropriate

authority after complying with the relevant provisions of the Act and the Rules framed thereunder, the lower appellate court misdirected itself in

exceeding its limit by examining the application for settlement Ext.5 and to hold that the defendant no.4 is not a ‘landless agricultural labourer’

and that the report of the Amin Ext.4 is faulty and erroneous and that the defendant no.4 is not entitled to be settled with the land particularly when the

plea of the State that there is valid settlement. Thus the finding of the lower appellate court being without jurisdiction cannot be sustained and the same

is liable to be set aside.â€​

Heard Mr. H.K. Behera on behalf of Mr. S.D. Das, Senior Advocate for the appellants and Mr. R.P. Mohapatra, learned Addl. Government

Advocate for the respondents 8 and 9. None appeared for the respondents 1 to 7.

Mr.Behera, learned counsel for the appellants submitted that defendant no.4 was separated from his father. He was a landless person. He was in

possession of the suit land long since. He made an application before the Tahasildar, Sadar, Sundargarh, defendant no.2, for settlement of the land.

After observing all formalities under the Orissa Government Land Settlement Rules, the Tahasildar granted lease and issued lease patta, vide Ext.B, in

Lease Case No.52 of 1979. The findings of the courts below that the lease patta is null and void are perverse.

Per contra, Mr. Mohapatra, learned AGA submitted that the lease patta was issued in favour of defendant no.4 in Lease Case No.52 of 1979 after

observing all formalities.

On an analysis of the evidence on record and pleadings, learned trial court came to hold that defendant no.4 is a peon in the Veterinary

Department in the State of Orissa. Defendants 3 and 4 have been examined as witnesses. They stated that Ac.12.00 of land fell to the share of

defendant no.3 in the family partition. Amin, P.W.4 was directed by the Tahasildar to enquire and report. P.W.4 did not make any proper enquiry

regarding status of the applicant. Learned appellate court came to hold that no enquiry as contemplated under Sub-Rules 3 and 4 of Rule 5 of the

Orissa Government Land Settlement Rules has been made by the Tahasildar in respect of the particulars furnished in the application for settlement for

the purpose of determination of the eligibility of the applicant. Under Sec. 3(3) of the Orissa Government Land Settlement Act (‘OGLS Act’),

the settlement shall be made in favour of a landless agricultural labourer of the village in which the land is situated or of any neighbouring village.

Defendant no.4 has more than one standard acre of land. The Tahasildar has not verified the report of the Amin and settled the land arbitrarily. The

suit land had not been settled in favour of defendant no.4 in accordance with the OGLS Act and Rules and as such, the same is illegal.

Defendant no.4 made an application on 18.01.1979, vide Ext.5, for settlement of the land. In column no.8 of the application, it is stated that the

extent of land owned by him in his name or in the name of other members of his family is 0.49 acres. Defendant no.4 is a peon in the Veterinary

Department in the State of Orissa. Defendants 3 and 4 have 12.00 acres of land. The Amin has not made proper enquiry with regard to the status of

the applicant. The Tahasildar mechanically accepted the report of the Amin and held that the applicant is eligible for grant of lease of the land.

Clause (b) of sub-section (3) of Sec.3 of the OGLS Act provides that the settlement of land shall be made in favour of a landless agricultural

labourer of the village in which the land is situated or of any neighbouring village. Landless agricultural labourer has been defined under Sec. 2(b-1).

Landless agricultural labourer means a person who has no means of livelihood other than agriculture. In the application, defendant no.4 had stated that

he is a cultivator and daily labourer having owned 0.49 acres of land. Learned appellate court has rightly held that the Tahasildar has not made proper

enquiry before settlement of the land. Defendant no.4 has more than 4.5 acres of land, which is more than one standard acre and as such, the

settlement of land in favour of defendant no.4 is illegal. Defendant nos.3 and 4 have no title over the suit land. The claim of adverse possession put-

forth by the plaintiffs had been negatived by the courts below. Thus the conclusion is irresistible that no proper enquiry had been made by the

Tahasildar before granting lease patta, vide Ext.B. Defendant no.4 had played fraud. The order passed in Lease Case No.52 of 1979 is illegal.

Consequently the lease patta, vide Ext.B, is void. Neither the plaintiffs nor the defendants have title over the suit land. The substantial questions of law

are answered accordingly.

In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.Â

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