Laxmidhar Sahu & Others vs State Of Orissa & Others

Dr. A.K.Rath, J

This is a plaintiffs’ appeal against affirming judgment in a suit for declaration of title, confirmation of possession, recovery of possession and

permanent injunction.

Case of the plaintiffs was that the suit land originally belonged to one Mirza family. After partition, the suit land fell to the share of Mirza Usuf Beg.

During 1927-28 settlement, the suit land was recorded in the name of the Government under Anabadi Khata. Since the suit land was lying vacant,

their father Jogo Sahoo used to grow crops. Jogo Sahoo approached the landlord to lease out the suit land in his favour. The suit land was leased out in

his favour by an unregistered lease deed on 9.1.1944 on payment of salami of Rs.50/.

He was in possession of the suit land till his death. He was the settled raiyat of the village. He became occupancy tenant. In the year 1963, zamabandi

was filed by the ex-landlord in favour of Jogo Sahoo, whereafter tenancy ledger was opened in his name. After his death, the plaintiffs are in

possession of the suit land and as such, perfected title. The plaintiffs used to pay rent. While the matter stood thus, the Tahasildar initiated

Encroachment Case No.89 of 1986 against the plaintiffs. During consolidation operation, the consolidation authority wrongly recorded the land in the

name of the mother of defendants 3 to 5. They filed Consolidation Appeal No.40 of 1985 before the Deputy Director Consolidation. The Deputy

Director held that the suit land vested in the State. With this factual scenario, the plaintiffs filed the suit seeking the reliefs mentioned supra.

Defendants 1 and 2 were set ex parte. Defendants 3 to 5 have filed the written statement pleading, inter alia, that the suit is barred by res judicata.

The unregistered lease deed of 1944 is a fake one. The plaintiffs are not in possession of the suit land. The description and boundaries of the suit land

are vague. It was not the sole property of Mirza Usuf Beg. The plaintiffs have not acquired right, title and interest over the suit land. Plaintiffs have

failed to produce the relevant records before the consolidation authority. The suit land was taken to Government Khata. The Government settled the

land in their favour

Stemming on the pleadings of the parties, learned trial court struck twelve issues. Parties led evidence, both oral and documentary. On an anatomy

of the pleadings and the evidence, learned trial court came to hold that the consolidation authorities have jurisdiction to declare right, title and interest

and possession over the suit land. The decision of the consolidation authority will operate as res judicata. Unsuccessful plaintiffs filed Title Appeal

No.38/100 of 2006/99 before the learned 1st Addl. District Judge, Puri, which was eventually dismissed.

Heard Mr. Lalit Kumar Maharana learned counsel on behalf of Mr. S.P. Mishra, learned Senior Advocate for the appellants and Mr. Swayambhu

Mishra, learned ASC.

Mr. Maharana, learned counsel for the appellants submits that the learned courts below have committed a manifest illegality in disbelieving that the

plaintiffs are the occupancy raiyats. Elaborating the submission, he submits that the suit land originally belonged to Mirza family. In the partition, the

suit land fell to the share of Mirza Usuf Beg. The suit land adjoins to the homestead land of the plaintiffs. The father of the plaintiffs was in possession

of the suit land. He approached Mirza Usuf Beg for lease of the land. Thereafter, the ex-landlord executed an unregistered lease deed on 9.1.1944 in

his favour. Salami of Rs.50/- was paid. The ex-landlord submitted expadia in his favour. Thereafter, tenancy ledger was opened, vide Ext.1. The

father of the plaintiffs used to pay rent from 1963 to 1975, vide Ext.3 series. In the objection case filed under Sec.9 of the Orissa Consolidation of

Holdings and Prevention of Fragmentation of Land Act, 1972 (in short, “OCH&PFL Actâ€), the suit land was recorded in the name of the mother

of defendants 3 to 5. Plaintiffs filed Consolidation Appeal No.40 of 1985 before the Deputy Director Consolidation. Without considering the matter in

its proper perspective, the Deputy Director recorded the suit land in the name of the Government under Ananbadi khata. The order is illegal. The

defendants have no semblance of right, title and interest over the suit land. He further submits that the proceeding initiated against the plaintiffs under

the provision of Orissa Prevention of Land Encroachment Act (in short, “OPLE Actâ€) by defendant no.2 is bad in law. The suit land had been

illegally recorded in the name of the mother of the defendants 3 to 5. He further submits that the courts below have not dealt with the unregistered

sale deed, vide Ext.2. The finding of the learned trial judge that Sec.16 of the OPLE Act is a bar for institution of the suit is perverse.

In State of Orissa v. Bhanu Mali (Dead) Nurpa Bewa and others, 1996 (I) OLR 460, a question arose that whether the decision of the Revenue

Officer in the proceeding under the OPLE Act will operate as res judicata in the subsequent suit filed by the plaintiff for declaration of title and

recovery of possession. This Court held that the decision of the Revenue Officer in the proceeding under the OPLE Act can neither operate as res

judicata nor Sec.16 thereof can stand as a bar relating to the question of title in the subsequent civil suit by the plaintiffs. Notwithstanding the bar

contained in Sec. 16 of the OPLE Act, the civil court has ample jurisdiction to decide the question of title.

Admittedly the consolidation operation in the area, where the suit land falls, started. In the objection case filed under Sec.9 of the OCH&PFL Act,

the land was recorded in the name of the mother of defendants 3 to 5. Aggrieved by the said order, plaintiffs filed Consolidation Appeal No.40 of 1985

before the Deputy Director Consolidation. In the appeal, the land was recorded in the name of the Government under Anabadi Khata. The order has

attained finality. There is no prayer in the suit to set aside the order passed by the consolidation authority.

The question does arise as to whether in the absence of any prayer to set aside the order passed by the consolidation authorities, the suit is

maintainable ?

In the case of Srinibas Jena and others v. Janardan Jena and others, AIR 1981 Orissa 1, the Full Bench of this Court in no uncertain terms held

that a decision of the consolidation authorities on the questions of right, title and interest which are matters within their jurisdiction would operate as res

judicata and that being so, the civil courts will have no jurisdiction to hear and decide the suit afresh.

The apex Court in the case of State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikote, Naduvil (dead) and others, AIR 1996 SC 906

held thus;

“6. ….. Mere use of the word ""void"" is not daterminative of its legal impact. The word ""void"" has a relative rather than an absolute meaning. It only conveys the

idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental

or otherwise.

In Halsbury's Laws of England, 4th edition, (Reissue) Volume 1(1) in paragraph 26, page 31, it is stated, thus:-

If an act or decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes; and it has been said that there are no degrees

of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of

competent jurisdiction. Until its validity is challenged, its legality is preserved.

In the Judicial Review of Administrative Action, De Smith. Woolf and Jowell, 1995 edition, at pages 259-260 the law is stated, thus:-

The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void

and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows:

(1) All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent Jurisdiction.

Similarly, Wade and Forsyth in Administrative Law, Seventh edition- 1994, have stated the law thus at pages 341-342:-

…every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful

action is by recourse to the law. In a well-known passage Lord Raodliffe said:

An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary

proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the

most impeccable of orders.

This must be equally true even where the brand of invalidity is plainly visible : for there also the order can effectively be resisted in law only by obtaining the

decision of the court. The necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council without distinction between

patent and latent defects….

xxx xxx xxxâ€​

Thus inescapable conclusion is that order passed by the consolidation authorities shall operate as res judicata.

The matter may be examined from another angle. 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 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) provides 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.

There is pleading that the plaintiffs are the settled raiyat in the village. Mere recitation of the word “occupancy raiyat†is not suffice to say

that the plaintiffs are the occupancy raiyats.

Resultantly, the appeal fails and is dismissed, since the same does not involve any substantial question of law. There shall be no order as to costs.

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