Krutibash Kar and Another vs Birabar Pani and Others

S.K. Ray, A.C.J.

This is a Plaintiff''s second appeal from the reversing decision of Shri P.K. Mohapatra, Additional District Judge, Cuttack dated 26-8-1972 passed in Title Appeal No. 312 of 1965. It arises out of a suit for declaration of title, confirmation of possession or, in the alternative, for recovery of possession of the suit land and for permanent inculcation. The suit land is 8 acres out of western side of plot No. 1065 bearing an area of Ac. 22.45 decimals under khata No. 217. This plot is recorded in C.S. record of rights (1927-28) as Puratan Patita. It was comprised in Pandua estate belonging to one Hemendranath Tagore as its landlord.

The case of the Plaintiffs is that the ex landlord settled the suit land with one Shyama Prasad Chattopadhyaya. Thereupon the lessee possessed the same by constructing a small house, digging a well and excavating a tank thereon. On 15-11-1960 the lessee sold the suit land to the Plaintiffs by a registered sale deed and delivered possession. Since then the Plaintiffs remained in possession of the suit property and were collecting the rent for the house which their vendor had constructed and had let out to the Veterinary Department for location of the Veterinary Stockman Centre. Defendants 1 to 4 who had also taken lease of another portion of the suit plot from its eastern side wanted to purchase the suit land but as the Plaintiffs refused to sell, they created trouble. In consequence there was a 145 proceeding in respect of the suit land and the same having terminated in favour of the Defendants, the present suit has been filed.

The Defendants filed a joint written statement. Their pleas were: (a) the suit is grossly under valued; (b) Shyama Prasad never acquired any title or possessed the suit property; (c) Shyam Prasad was not recognised as a tenant either by the ex landlord or by the State after abolition of estate and, as such, he had no title to convey to the Plaintiffs; (d) Plaintiffs were never in possession of the suit land; (e) the suit land is communal land on which various institutions serving the community are located; (f) the house standing thereon was constructed by one Radha Mohan Nayak with the contribution raised from the villages; and (g) the civil Court has no jurisdiction to try the suit in view of the bar under Orissa Act 1 of 1948.

The trial Court decreed the suit on the findings that the suit land constituted Anabadi of the ex landlord and was not communal land, that Shyama Prasad had acquired title to the suit property under a valid lease from the ex landlord Hemendranath Tagore and was in possession of the same, and that the Plaintiffs acquired a valid title under the sale deed Ext. 2 executed by the aforesaid Shyama Prasad in their favour.

Against this decision of the trial Court the Defendants appealed to the first appellate Court who held that there was on valid settlement in favour of Shyama Prasad and that the latter was not recognised as a tenant either by the landlord or by the State after abolition of the estate in the year 1953, and that, therefore, the Plaintiffs did not acquire title under Ext. 2, the sale deed executed by Shyama Prasad in their favour, and, ultimately, that the suit land being communal land the civil Court has no jurisdiction to try the suit by reason of the provisions of Orissa Act 1 of 1948. In result, the lower appellate Court allowed the appeal and dismissed the suit.

The Plaintiffs came to this Court in second appeal No. 428 of 1966. Honourable Mr. Justice A. Misra by his decision dated 2nd February, 1971 passed in that second appeal remanded the appeal to the first appellate Court with the following observations:

... The lower appellate Court in para 15 of its judgment has found that though the suit property has been valued at Rs. 1,0001- and Court-fee paid thereon, the price of the suit land would be about Rs. 10.000/ - and hence the trial Court had no jurisdiction to try the suit The proper course for the

appellate Court when it found that the trial Court had no jurisdiction was to order return of the plaint and not to allow the appeal and set aside the judgment of the trial Court....

The next point is how far this finding is to be sustained. It may be stated that in the written statement there is no specific objection to the jurisdiction of the Court and the appellate Court has not applied its mind to a consideration whether even on the assumption that the value of the suit property would be about Rs. 10,000/ -, the suit was not properly valued for purposes of Court-fee and jurisdiction. He should have considered as to the appropriate provision of the Court-fees Act and Suits Valuation Act for the purpose of Court-fee and jurisdiction which will govern a suit of the present nature and then come to a finding whether the suit was properly valued for purposes of Court-fee and jurisdiction, and if not, whether the market value of the property would govern the jurisdiction of the Court, in which case, the trial Court would have no pecuniary jurisdiction to try the suit. None of these aspects has been considered. It has simply observed that the price of the suit property would be about Rs. 10,0001-, and therefore, the trial Court had no jurisdiction to try the suit. In these circumstances, the finding of the lower appellate Court on the question of jurisdiction cannot be sustained and without expressing any opinion on the merits of other findings, the appeal has to be remanded to the lower appellate Court to come to a proper finding about valuation and jurisdiction in the light of the appropriate provision applicable and thereafter if it finds that the trial Court had no jurisdiction, an order is to be passed for return of the plaint for presentation to a proper Court or if it finds that the trial Court had jurisdiction to try the suit, to give proper findings on the different issues on a consideration of the merits of the evidence adduced.

In the result, ... the judgment and decree of the lower appellate Court are set aside and the appeal is remanded to the lower appellate Court for disposal according to law...

The first appellate Court, after remand, again dismissed the suit on the following findings.

(a) The suit being one for declaration with consequential reliefs the Plaintiffs are at liberty to put their own valuation and the Defendants cannot challenge the same. Therefore, it is not necessary to consider Exts. P and P /1, the sale deeds filed to prove valuation. Accordingly, the trial Court had jurisdiction.

(b) Act 1 of 1948 does not oust the jurisdiction of the civil Court, as the question of jurisdiction has to be determined on the allegations in the plaint and not on defence pleadings.

(c) The Plaintiffs have failed to prove settlement of the suit land in favour of Shyama Prasad and its consequent delivery to him.

(d) Payment of rent by Shyama Prasad to the landlord under Exts. 1 and l/a has not been proved.

(e) Shyama Prasad''s possession by virtue of his settlement is not proved.

(f) Plaintiffs have failed to prove their title and possession.

(g) The defence case that the suit land is communal and is in possession of the villagers is not proved.

The Defendants on receipt of appeal notice purportedly acting under Order 41 Rule 22, CPC filed a cross-objection challenging certain findings rendered by the first appellate Court as aforesaid.

The learned Counsel for the Appellants argued both on questions of merits as also on the technical pleas of lack of pecuniary jurisdiction of the trial Court in entertaining the suit and maintain liability of the suit by reason of Act 1 of 1948. Mr. Mohanty for the Respondents, inter alia, contended that on correct interpretation of the judgment passed in second appeal No. 426 of 1960 the findings of fact rendered by the first appellate Court on the first occasion before remand were not open to be interfered with after remand. It is appropriate to deal with this preliminary objection of Mr. Mohanty first before going to deal with the main and substantial questions involved.

The preliminary contention is that it was not open to the first appellate Court to give a finding on issues other than the issue of pecuniary jurisdiction only. The findings on other issue which it had rendered in its judgment before remand were final and binding on the parties. This contention is obviously based upon his interpretation of the judgment of this Court given in second appeal No. 426 of 1966. I have extracted relevant passages from this judgment above. To my mind there is no iota of doubt that this Court very clearly said that if on remand the first appellate Court found that the trial Court had pecuniary jurisdiction to try the suit he is to be proceed to give proper findings on the other different issues on a consideration of the merits of the evidence adduced. Since the lower appellate Court found that the trial Court had jurisdiction to try the suit he very properly proceeded to give his findings on other issues. This contention of Mr. Mohanty must fail.

The next question is whether the trial Court had pecuniary jurisdiction to entertain the suit. The Plaintiffs valued the suit at Rs. 1,00/ -. The Defendants raised a plea that the suit had been grossly undervalued and, accordingly issue No. 4 was framed which runs as follows:

Is the suit properly valued and has proper Court fee been paid?....

The Plaintiffs having purchased the suit land for a consideration of Rs. 1,000/ - the trial Court found that the Plaintiffs valued the suit properly and paid proper Court-fees thereon. There is no controversy here that the present suit falls u/s 7(iv)(c) of the Court-fees Act which provides that the Plaintiff is at liberty to put his own valuation on the relief claimed. There is some difference of judicial opinion on the scope and meaning of this provision of the Court-fees Act. One view is that the Plaintiff is at liberty to put his own valuation which cannot be challenged. The other view is that when the Plaintiff has failed to give a reasonable valuation and the valuation given by him is inordinately low the Court has the power to fix the correct value.

In the case of Udayanath Mohapatra and Anr. v. Rahas Pandiani and Ors. 16 (1950) C.L.T. 171, this Court adopted the view that where the Plaintiff has grossly undervalued his suit falling u/s 7(iv)(c) of the Court-fees Act the Court has the power to correct the valuation by determining the correct market value of the suit property and then require the parties to pay advalorem Court-fees thereon. This decision was based upon the Patna practice which insisted that the litigant cannot be allowed to place arbitrarily a low valuation on the relief and that when the valuation put by the party is grossly disproportionate to the market value the Court can determine the market value and insist upon payment of advalorem Court-fee on such determined value. This case apparently did not deal with legal problem judicially except following Patna practice. In the case of Biraja Talkies and Ors. v. Bansidhar Panda and Ors. 1972 (1) C.W.R. 430, this Court took the view that where a suit is governed u/s 7(iv)(c) of the Court-Fees Act the Plaintiff has the liberty to value the relief and to pay Court-fees thereon. Reliance in this connection was placed on a decision of the Supreme Court in the case of S.Rm.Ar.S.Sp. Sathappa Chettiar Vs. S.Rm.Ar.Rm. Ramanathan Chettiar, where it has been said that according to the scheme laid down in the Court-fees Act for computation of fees payable in suits covered by several Sub-sections of Section 7 it is clear that in respect of suits falling under Sub-section (iv) a departure has been made and liberty has been given to the Plaintiff to value his claim for the purpose of Court-fees. The second decision of this Court being based upon a decision of the Supreme Court naturally held the field notwithstanding an earlier contrary decision of this Court which was expressly based upon Patna practice. There are two later Single Judge decisions of this Court, both by the same learned Judge, P.K. Mohanti, J. in which the view of this Court in Udayanath Mohapatra''s case based on Patna practice has been accepted and the decision of the Supreme Court in S.Rm.Ar.S.Sp. Sathappa Chettiar Vs. S.Rm.Ar.Rm. Ramanathan Chettiar, , has been distinguished by saying that the Supreme Court left open the question whether the Plaintiff under the provisions of Section 7(iv)(c) has been given an absolute right or option to put any valuation whatever on his relief. These two later decisions Paramanda Sahoo v. Babaji Barik and Ors, 1947 (1) C.W.R. 635 and Harish Chandra Routrai '' Babaji Rout and Ors. v. Bhaskar Rout and Ors. 1975 (1) C.W.R. 1, have not noticed the earlier Single Bench decision of this Court in Biraja Talkies''s case 1972 (1) C.W.R. 430 in which a view was taken after interpreting the Supreme Court decision in S.Rm.Ar.S.Sp. Sathappa Chettiar Vs. S.Rm.Ar.Rm. Ramanathan Chettiar, . This decision unfortunately had not been brought to the notice of Justice Mohanti. According to rule of precedent Justice Mohanti''s later decisions cannot be accepted when they run counter to an earlier Single Bench decision to the contrary. So far as lower Courts are concerned the decision in Biraja Talkies''s case, unless distinguished or set aside, must hold the field irrespective of what Justice Mohanti has said in two later decisions. The same principle cannot !be applied to the decision in Biraja Talkies''s case which apparently runs counter to another ruling of this Court in Udayanath Mohapatra''s case. In between Udayanath Mohapatra''s case and Biraja Talkies''s case the Supreme Court has rendered its decision in Sathappa Chettiar''s case which had been interpreted in one particular manner by the first Single Judge of the Court in Biraja Talkies''s case. It is not open to a subsequent Single Judge of this Court to distinguish the Supreme Court decision and then refuse to follow an earlier decision, because any distinguishment of the Supreme Court case would amount to riding rough-shod over the -earlier view regarding the meaning of the Supreme Court decision. Left to myself I would have either followed the decision of the Single Judge, or, if I was inclined to take a view contrary to the view in Biraja Talkies''s case. I would have referred the matter to a larger Bench. However. I think in the facts of the present case it is not necessary to determine this legal question either way. The trial Court recorded a finding on issue No. 4 that the Plaintiffs having purchased the suit property for a sum of Rs. 1,000/ - in the year 1960, they valued the suit, which was filed one year later, at the amount for which they purchased the property, and held that the Plaintiffs'' valuation on the basis of their sale deed was proper and acceptable. The lower appellate Court relying upon the-dictum in S.Rm.Ar.S.Sp. Sathappa Chettiar Vs. S.Rm.Ar.Rm. Ramanathan Chettiar, , accepted the Plaintiffs'' valuation and, accordingly, did not consider Exts. P and P /1, the sale deeds produced by the Defendants in evidence of higher valuation. Exts. P and P /1, the two sale deeds have been proved by d.w.7. This witness never testified that the lands covered by these Exts. P and P/1 were of the same nature and quality and possessed the same advantages as the suit land. Accordingly, there was no foundation for acting upon these Exts. P and P 11 for the purpose of arriving at a correct valuation of the suit land. In this view, the trial Court in my opinion, rightly held that there is no satisfactory material to hold that the suit properties had not been properly valued by the Plaintiffs. On the contrary, d.w.1 has himself admitted in his cross-examination that the lands which he purchased under Exts. P and P/1 are cultivable lands while the suit land is fallow land. Evidence, therefore, Exts. P and P/1 cannot constitute any foundation for discarding the Plaintiffs'' valuation, specially when there is no evidence whatsoever of the market value of fallow land situated in the vicinity of the suit property. For all these reasons I would also accept the valuation put by the Plaintiffs as reasonable and that the Plaintiffs cannot be said to have grossly undervalued their reliefs. On this ground alone it must be held that the trial Court had pecuniary jurisdiction to try the suit despite the divergent views prevailing in this Court as to the meaning and scope of Section 7(iv)(c) of the Court-fees Act.

Next contention of Mr. Mohanty is that the jurisdiction of the civil Court is expressly barred to entertain the suit by reason of the provisions'' of Act 1 -of 1948. Reliance in this connection is placed upon a decision of this Court in Hrushikesh Pat and Ors. v. Udaykar Das and Ors. ILR 1964 Catt 111. That case decides that Section 4 of Act 1 of 1948 expressly ban the jurisdiction of the civil Court to determine the validity of a lease executed by the landlord in respect of his private land prior to 30th of November, 1947 and that such validity shall be exclusively determined by the District Judge whose decision shall be final and shall not be subject to appeal or revision by any superior Court.

Reading Sections 3 and 4 of Act 1 of 1948 it appears that alienations of communal, forest or private land without the previous sanction of the Collector on or after the 1st day of April, 1946 are void and inoperative and any transaction of alienation in respect of private land or forest land entered into prior to 30th of November, 1947 in favour of any person in good faith or for valuable consideration will be exempted from the mischief of this section. Thus, alienations of private land before 1st day of April, 1946 and alienations between first day of April, 1946 and 30th of November, 1947 made in good faith and for valuable considerations are not to be treated as void. Sub-section (2) of Section 4 then provides that if any dispute arises as to the validity of the claim of any person to any land which has been transferred on or after 1st day of April, 1946 and before 30th of November, 1947, it shall be open to such person whose claim is disputed to apply to the District Judge for a decision as to the validity of his claim. There is no evidence in this case as to whether the lease in question was effected between 1st day of April, 1946 and 30th day of November, 1947. In absence of such evidence it cannot be said that Sub-section (2) of Section 4 of Act 1 of 1948 is attracted. Leases of any other kind except those envisaged under Clause (i) and (ii) of the proviso to Section 4(1) may be bad but adjudication as to the validity of such leases does not fall within the exclusive jurisdiction of the District Judge under Sub-section (2). On this ground alone the aforesaid contention of Mr. Mohanty must be rejected. That apart where the character of the land which is the subject-matter of alienation contemplated u/s 3 is in dispute that question does not come within the exclusive jurisdiction of the District Judge under Sub-section (2). The Civil Court is entitled to decide that matter and once the character is decided by the Civil Court and the nature of transaction which is prohibited under the different provisions of the Act is also determined then the further determination as to the validity of the claim on other grounds envisaged under Clauses (i) and (ii) of the proviso to Sub-section (1) of Section 4 may be left to the exclusive jurisdiction of the District Judge. According to the Plaintiffs the disputed land is neither communal land nor private land nor forest land as defined in Section 2 of the Act: The Defendants have, however, raised a plea that the land is communal land. Mere assertion of the Defendants would not oust the jurisdiction of the Civil Court automatically until and unless the Civil Court determines the character of the land of evidence produced before it as one of the classes of lands whose alienation is prohibited. The Courts below have concurrently found that the land is not communal. In view of this finding, the plea of bar of jurisdiction must be rejected as untenable.

The last and principal question is whether the Plaintiffs have succeeded in proving their title. To do that the Plaintiffs have to establish the settlement in favour of Shyama Prasad, latter''s sale to them and that the land is not communal land. Last two elements have been found in favour of the Plaintiffs. The only ground on which the lower appellate Court has thrown out the Plaintiffs'' case is that the lease which was an agricultural one in favour of Shyama Prasad has not been proved. The story of lease has been disbelieved by the lower appellate Court on the grounds that the original lease deed was not produced and neither the lessor nor the lessee nor the scribe of the deed was determined, that payment of rent by Shyama Prasad to the landlord has not been proved and that Shyama Prasad''s taking possession pursuant to the settlement and his subsequent possession has not been proved. The finding of the lower appellate Court is a reversing one.

It is indeed true that the written lease, whose existence has been admitted by the Plaintiffs has not been produced, but that alone cannot outweigh other evidence and circumstances, if any, preponderantly probabilising settlement under a lease with Shyama Prasad. It appears to me on a perusal of the judgment of the lower appellate Court that he has failed to draw correct legal inferences from the various pieces of documentary evidence on the point of lease. Even though the lease deed did not exit in fact, or is not forthcoming'' in evidence of Shyama Prasad''s tenancy, yet the same can be established by payment any acceptance of rent and landlord''s acknowledgment of such tenancy by a long course of conduct. Therefore, if the document of lease which would have been a good evidence of tenancy right is not produced it would not mean that other evidence cannot be produced if substantiation of the Plaintiffs claim. It appears from Ext. 2, the Plaintiffs'' sale deed from Shama Prasad, that the fact of grant of lease by the landlord in favour of Shyama Prasad has been referred to. Exts. 1 and 1/a are the rent receipts granted by the ex intermediary for the years 1948 to 1953. Acceptance of rent is evidence of lease. These two rent receipts have been marked without objection. P.w. 1 who proved these receipts has stated that Shyama Sundar Nayak, the then Tahasildar granted them. This fact was brought out in cross-examination by the defence as also the fact that Shyama Sundar Nayak was the Tahasildar of mouza Malisahi within which the suit land is situated. The estate of the landlord vested in the year 1953. Thereafter rent was payable by Shyama Prasad to the State. Exts. 5 and 5/a are the two chalans dated 22-11-1900. They prove that the amount of rent and cess in respect of the suit land were paid by the lessee for an area of 8 acres under khata No. 217/20 in a certificate case for realisation of rent for the year 1953-54, the year following the vesting. It appears from Ext. 5/a that rent and cess were claimed for the years 1954 to 1959 and realised. Since the Plaintiffs purchased the property under Ext. 2 dated 15-11-1960 they paid the rent and cess in the certificate case within a week after their purchase though the certificate case had been instituted before their purchase. It also appears from Ext. 9 that khata No. 217 was Sub-divided and the area of 8 acres leased out to Shyama Prasad was given a by-number, that is khata No. 217/20. Thus, all these documents, viz: Fxts. J. 1/a, 5, 5/a, and 9 prove that Shyama Prasad had been paying rent to the ex landlord and after vesting of the estate, the State had also started certificate cases for realisation of rent for 5 years after vesting and this rent was paid by the Plaintiffs after their purchase. Ext. 6 series show payment of rent to the Anchal for the years 1959 to 1965. Since the Plaintiffs had not been mutated, these rent receipts ate ostensibly in the name of Shyama Prasad. This shows that the suit land was recorded in the name of Shyama Prasad as tenant in the zamabandi papers of the landlord which had been submitted to the Collector according to the legal requirement under the Estates Abolition Act. For long 12 years, from 1953 to 1965, the State acted upon this zamabandi (Ext. 9) which indicates that they accepted the correctness of all entries therein.

The learned lower appellate Court has criticised the Plaintiffs conduct in omitting to call for the lease book in proof of lease to Shyama Prasad. It is true that book could have been called for, but whatever adverse inference could be drawn is completely wiped out by the series of documents, namely, Ext. 1 series, Ext. 5 series, Ext. 6 series and Ext. 9 showing payment of rent by Shyama Prasad from the date of lease till 195.3 and, thereafter, by the Plaintiffs who purchased the leasehold interest from the said Shyama Prasad and recording of Shyama Prasad by the ex landlord in his zamabandi papers as his lease and acceptance of such zamabandi papers by the State since 1953 onwards. All these documents are not explainable on any hypothesis other than that Shyama Prasad had been recognised by the landlord and also by the State after vesting as the lessee in respect of the suit land. The lower appellate Court was not justified in ignoring Ext. 9 on the ground of absence of the lease deed. It is true that Ext. 9 is not to be treated as a title deed but it is a strong piece of evidence of title of Shyama Prasad as a lessee. These are very strong pieces of evidence of acknowledgment of Shyama Prasad''s lease by the ex landlord and also by the State after vesting. The Plaintiffs had alleged in their plaint that Shyama Prasad after getting the suit land by lease paid rent to the landlord. The fact of payment of rent to the landlord has not been specifically denied by the Defendants in their written statement. On the contrary, in para 10 of their written statement, the Defendants say that the lease in favour of Shyama Prasad was a sham and collusive transaction. By so saying they admit the factum of lease, though the legality and effectiveness of the lease transaction are impugned as sham and collusive. In view of that defence case, the burden was rather on them to establish that the lease was a !ham and collusive transaction. No iota of evidence has been placed on record by the contesting Defendants in support of this defence theory of theirs. Thus, this defence stand in para 10 of the written statement coupled with the aforesaid documentary evidence shows that Shama Prasad was the tenant in respect of the suit land and that rent was claimed from him by the landlord and, after vesting, by the State and that the latter started certificate proceedings for realisation of rent and that Shyama Prasad was all along paying rent and after his sale to the Plaintiffs, the latter also paid rent to the State.

The Defendants claim the land to be communal and that it was being enjoyed by the villagers. They further state that the villagers have been realising rent from the house let out to the. Veterinary Department. It will be seen that they have admitted in para 6 of the written statement that rent was being received by Krushna Kar, father of Plaintiff No. 1. In absence of proof that Krushna Kar was realising rent on behalf of the villagers or that he was entrusted with the cultivation of the suit land by the villagers or that he ever accounted for or made over usufruct of the land to the villagers such realisation by him must necessarily be held to be for and on behalf of the Plaintiffs. It rather appears from Ext. 3, a letter from Shyama Prasad that he had entrusted Krushna Kar to realise rent which he did before Plaintiffs'' purchase in 1960. Subsequent to the Plaintiffs'' purchase Krushna Kar continued to realise rent and this realisation in absence of any reliable counter evidence must be- accepted as realisation on behalf of the Plaintiffs. The learned lower appellate Court has criticised the Plaintiffs for not examining Krushna Kar but explanation has been given that Krushna Kar was very old and blind at the time of trial and his examination was, therefore, not possible. This explanation has escaped the attention of the lower appellate Court.

In view of the aforesaid discussion, there is no doubt in my mind that the lower appellate Court did not draw proper legal inference from various pieces of documentary evidence and has drawn some adverse inferences against the Plaintiffs which are unwarranted in law. The findings of the trial Court having been reasonable arrived at, the lower appellate Court should have been slow to reverse the same in absence of strong and cogent reasons, though it could take a different view of evidence.

For the aforesaid reasons, I would set aside the judgment and decree of the lower appellate Court and restore that of the trial Court. The Plaintiffs will be entitled to costs throughout.