Madan Mohan Sahoo vs State Of Orissa And Another

A.K. Rath, J

This is a plaintiff's appeal against confirming judgment in a suit for declaration of title, confirmation of possession, recovery of possession in the

event he is dispossessed during pendency of the suit and permanent injunction.

Case of the plaintiff was that the suit land originally belonged to deity Baladeva Jew Bije Keonjhargarh. The then ruler of Keonjhar was the

marfatdar of the deity. Debotter Manager of ruler was managing the suit land. In 1950 his father reclaimed the suit land. Debottar Manager inducted

his father as a tenant by observing all formalities in Patta Case No. 6 of 1958-59 on 27.12.1958 and 3.1.1959 and delivered possession to him. He and

his father were in possession of the suit land. They had constructed a house over it and paid rent. The estate was declared as trust estate. It vested in

the State on 18.3.1974. His father was continuing as a tenant. In the Major Settlement of 1975, the suit land was recorded in the name of the State as

“Abadajogya Anabadiâ€. In the remarks column of the R.O.R., the name of his father has been reflected. On 26.11.1993 his father filed a petition

before the Tahasildar, Anandapur to record the suit land in his name along with other adjacent land as raiyat in view of his continuous possession from

1956. The Tahasildar, Anandapur in Revenue Misc. Case No. 129 of 1993 directed to record the suit land in the name of his father on 18.12.1993 and

accepted the back rent till 31.3.1993. His father paid rent. Prajapatta No. 6 of 1958-59 dated 27.12.1958 and 3.1.1959 granted by debottar manager of

Ex-ruler of Keonjhar in respect of the suit land in favour of his father is now under the custody of defendant no. 2 in Revenue Misc. Case No. 129 of

1993. In Revenue Appeal No. 26 of 1998, the Sub-Collector, Anandapur set aside the order dated 18.12.1993 passed in Revenue Misc. Case No. 129

of 1993 on 17.4.1999 and directed the Tahasildar to evict his father from the suit land. But then they have not been evicted. After death of his father,

he is in possession of the suit land as a tenant. While matter stood thus, on 6.9.2003 the Tahasildar, Anandapur initiated Encroachment Case No. 383

of 2003-04 against him. Order of eviction was passed. On 5.2.2004 the R.I. Ghasipura asked him to vacate the suit land. With this factual scenario, he

instituted the suit.

Defendants 1 and 2 filed written statement pleading inter alia that the suit land was lying fallow. Neither the plaintiff, nor his father was in

possession of the same at any point of time. The suit land originally belonged to Baladev Jew of Nizigarh Keonjhar. It was never leased out in favour

of the plaintiff's father in Prajapatta No. 6 of 1958-59. The patta is a fictitious one and tailor made. No delivery of possession of the suit land was

made in favour of his father by deity. The estate vested in the State on 18.3.1974. The plaintiff did not apply for settlement of the land within the

specified period and, as such, not entitled to resume the land. Thereafter the plaintiff filed a petition before the Tahasildar, which gave rise to Revenue

Misc. Case No. 129 of 1993. The Tahasildar erroneously settled the land in favour of the plaintiff, for which Revenue Appeal No. 26 of 1998 was

filed against the order of settlement. The appellate authority set aside the order passed by the Tahasildar. The land was taken to the Government

khata. The plaintiff did not prefer any revision before the Revenue Authority. The order attained finality. Following the appellate court's order passed

in Revenue Appeal No. 26 of 1998 when the unauthorized possession of the plaintiff was detected, Encroachment Case No. 583 of 2003-04 was

initiated against the plaintiff. Order of eviction was passed against him.

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

pleadings and evidence on record, learned trial court came to hold that the plaintiff has no right, title and interest over the suit land. Held so, it

dismissed the suit. Unsuccessful plaintiff filed R.F.A. No. 11 of 2008 before the learned District Judge, Keonjhar, which was eventually dismissed.

Heard Mr. D.K. Sahoo, learned Advocate for the appellant and Mr. R.P. Mohapatra, learned Additional Government Advocate for the

respondents.

Mr. Sahoo, learned Advocate for the appellant submitted that the suit land originally belonged to Baladev Jew Bije Keonjhargarh. The then ruler of

Keonjhar was marfatdar of the deity. In 1950, father of the plaintiff reclaimed the suit land. Debottar Manager inducted the father of the plaintiff as

tenant in Prajapatta Case No. 6 of 1958-59 on 27.12.1958 and 3.1.1959 and delivered possession. The plaintiff and his father were in possession of the

suit land. They had constructed a house over it and paid rent. After vesting in the State, father of the plaintiff was continuing as tenant and, as such,

he is a deemed tenant. The father of the plaintiff filed an application before the Tahasildar, Anandapur on 26.11.1993 to record the suit land in his

favour. The Tahasildar, Anandapur in Misc. Case No. 129 of 1993 directed to record the land in favour of the father of the plaintiff as a tenant and

accepted the back rent. The order passed by the Sub-Collector, Anandapur in Revenue Appeal No. 26 of 1998 is illegal. Initiation of Encroachment

Case No. 383 of 2003-04 and the order of eviction passed therein is illegal.

Per contra, Mr. Mohapatra, learned Additional Government Advocate submitted that the suit land is a Government land. Neither the plaintiff, nor his

father possessed the suit land at any point of time. Prajapatta no. 6 of 1958-59 is a fictitious one. The estate vested in the State on 18.3.1974. The

order passed by the Tahasildar in Revenue Misc. Case No. 129 of 1993 was set aside by the Sub-Collector in Revenue Appeal No. 26 of 1998. No

revision has been filed against the said order. Further, in Encroachment Case No. 383 of 2003-04, the order of eviction was passed. The plaintiff paid

penalty. He further submitted that after vesting, the landlord had not submitted ekpaida in favour of the plaintiff, nor tenancy ledger was prepared.

Reliance placed on Prajapatta dated 3.1.1959 is thoroughly misplaced. In Ram Nath Mandal v. Jojan Mandal, AIR 1964 Patna 1, the Full Bench

of Patna held that under Sec. 117 of the T.P. Act, a lease for agricultural purposes is not necessary to be made by a written instrument and it may be

effected by an oral agreement in which case the question of registration will not arise. However, if the transaction is reduced to writing, then in the

case of a lease from year to year or for any term exceeding a year or reserving a yearly rent, registration would be required under Sec. 17 of the

Registration Act, and if unregistered the lease will be inadmissible in evidence under Sec. 49 of the Registration Act and other evidence of its terms

will be precluded under Sec. 91 of the Evidence Act. In that case, the claim of creation of tenancy on the basis of rent receipts in pursuance of an oral

agreement was negatived on the ground that no such case had been put forward by the plaintiff in the plaint.

The plaintiff has based his claim on the basis of an unregistered Prajapatta, Ext.1, value of which was more than Rs. 100/-. In view of the

authoritative pronouncement of the Full Bench decision in the case of Ram Nath Manda, the same requires registration under Sec. 17 of the

Registration Act.

In Encroachment Case No. 383 of 2003-04, the order of eviction was passed. Further the order passed by the Tahasildar in Revenue Misc. Case

No. 129 of 1993 has been set aside by the Sub-Collector, Anandarpur on 17.4.1999. The same has not been challenged by the plaintiff. The order

attained finality.

In State of Kerala v. M.K. Kunhikannan Nambiar, (1996) 1 SCC 435 : AIR 1996 SC 906, the apex Court held that even a void order or

decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact be effective

inter parties until it is successfully avoided or challenged in higher forum. Mere use of the word “void†is not determinative 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. The apex Court held:

“7. xxx xxx xxx

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.â€​

On a threadbare analysis of the evidence on record and pleadings, learned appellate court came to hold that the plaintiff has no right, title and

interest over the suit land. There is no perversity or illegality in the said finding.

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