Mir Abdul Hanan vs Golam Rahaman Khan and Others

A.S. Naidu, J.—The Appellant as Plaintiff filed O.S No. 58 of 1968-I in the Court of the then Learned Munsif, Balasore, inter alia praying for a declaration that the Plaintiff is the owner.& in possession of a portion of land more fully described in Schedule ''A'' of the plaint & for further declaration that Defendant No. 1 had acquired no title & interest over the suit land & that the Plaintiff is not bound by the illegal orders passed by the Defendant-Tahasildar under the provisions of Orissa Estates Abolition Act & by the Municipal authorities, as well as for permanent injunction restraining Defendant No. 1 from interfering with the possession of the Plaintiff .& for other ancillary reliefs. The suit was decreed by judgment dated 25.1.1974. The said decree was assailed by Respondent Nos. 1 to 7 in the Court of the Learned District Judge, Balasore. The Lower Appellate Court by judgment dated 13.3.1987 allowed the appeal & set-aside the Judgment & decree passed by the Learned Munsif & dismissed the suit. Being aggrieved the Plaintiff has approached this Court.

The facts of the case have been elaborately dealt with in the judgment passed by both the Courts below. Therefore only those facts which are necessary for effectual adjudication of this Second Appeal are stated herein below :

The suit lands appertain to Khata No. 332, Plot No. 218 having an area of Ac 0.11 decimals & were recorded as "Chandana Holding" whereas Plot No. 218 was recorded as homestead. Both the plots belonged to Sk. Abdul Dayal, who was the tenure holder in respect of the Khata. Defendant No. 1 by a Registered Sale Deed 11.11.1925 (Ext.A) purchased the intermediary interest of Sk. Abdul Dayal. On 21.9.1949 the recorded "Chandana Tenant" of Plot No. 218, Sk. Sabaktulla along with his wife & children sold their separated half of "Chandana Holding" in Plot No. 218 by Registered Sale Deed Ext. 2 in favour of the Plaintiff.

The case of the Plaintiff in short is that after purchasing "Chandana Raiyat" from the "Chandana holders" in consonance with the provisions of Orissa Tenancy Act, he paid land revenue vide Ext.6 series. He also paid holding tax to the Municipality vide Ext.5 series & possessed the same. While matter stood thus on 12.1.1950 he purchased Ac.0.03 decimals adjoining to the suit plot from Golam Nabi-Defendant No. 2 & took possession thereof. Defendant No. 1 surreptitiously without any notice got the lands mutated in his name under Ext.H & on the strength of the said order he got the house mutated in his favour in Municipality & tried to disturb his possession. Consequently the suit was filed.

Defendant No. 1 filed a written statement taking the stand that the suit is not maintainable & is hit by Section 39 of the O.E.A Act. Further according to the said Defendant, Plaintiff is not in possession of the lands far more than 12 years. The lands having been sold by his-legal heirs of the tenure holder & Defendant No. 1 having purchased the tenure, he was treated as a tenure holder & lands have been settled in his favour under O.E.A Act after vesting of the tenure with the State. In short according to Defendant No. 1 by virtue of the Registered Sale Deed executed in favour of Defendant No. 58 he had acquired valid right, title & interest & the orders passed by the Revenue authorities as well as Municipality after following all paraphernalia are just, proper & needs no-interference.

Defendant No. 2 in his written statement took the stand that Defendant No. 1 had purchased Ac. 0.5 1/2 decimals out of Khata No. 332 by Registered Sale Deed dated 16.11.36 from Sk. Abdula Dayal & became the owner of the lands. Sk. Abdula further had received Rs. 25 towards ''salami'' from Defendant No. 2 & granted permanent ''patta'' for Ac.0.3 1/2 decimals out of the above plot on 15.4.1939. Since then the said Defendant possessing the suit lands to the knowledge of all concerned. It was further averred that by virtue of a compromise petition filed in O.S No. 35/1.933-1 of the Court of the Learned Munsif, Balasore, a road of 5 cubits in breadth was allotted to him towards northern side of Plot No. 218 to approach the Municipal road which is in his possession since then. The Plaintiff, it is stated, purchased Ac.0.3 decimals of lands out of suit Plot No. 218 from him & he was given possession thereof. Thus the Defendant is in possession of A.O. 1/2 decimals of land. According to Defendant No. 2 he has been unnecessarily added as a party though there is no cause of action against him.

Defendant No. 3 in his written statement reiterated the stand taken by Defendant No. 1 & stated that the suit was barred u/s 39 of the O.E.A Act, 1961 & that title & possession with regard to Ac.0.5 1/2 decimals of land was settled in R.F Case No. 10/1961-62 & the said order is binding.

On the basis of the pleadings the Trial Court framed as many as nine issues. After discussing the evidence the Learned Trial Court arrived at the following findings :

i) the Plaintiff has successfully proved his tile & possession over the suit house by adducing oral & documentary evidence.

ii) Defendant No. 2 has failed to prove his possession over the suit house.

iii) Defendant No. 1 has admitted that there was a house on the suit land, where ''Chandana tenant Sabaktulla'' was staying with his family. The assertion with regard to eviction of the said tenant is not believable.

iv) The rent schedule Ext.H is invalid & does not create any title in favour of Defendant No. 1 as no public notice was served in the locality before passing the said order. According to the Trial Court the orders were passed without complying with the provisions of O.E.A Act.

v) The orders passed by the Tahasildar & Revenue authorities without following the mandatory requirements of law are null & void.

The Judgment & decree passed by the Trial Court, was assailed by Defendant Nos. 1 to 7 in M.A No. 15/9 of 1975/74-1 in the Court of the Learned Addl. Subordinate Judge, Balasore. The lower Appellate Court without properly examining the legality of the order passed under the O.E.A Act dismissed the Plaintiff''s suit & allowed the appeal only on the ground that the Registered Sale Deed having been executed in favour of the Plaintiff in respect of northern half of the disputed properties it was not possible to give him a decree in respect of southern half. The Lower Appellate Court also found that Section 236 of the Orissa Tenancy Act had no application since there was no house, &, therefore Plaintiff did not get title by virtue of the transfer made in his favour. The prayer of the Plaintiff to pass a decree in respect of northern portion of the plot was refused. The said Judgment & decree was assailed before this Court in Second Appeal No. 13 of 1979. After discussing the facts & circumstances, this Court by judgment dated 27.6.1984 set aside the Judgment & decree passed by the Learned Addl. Subordinate Judge, Balasore & remitted M.A No. 15/ 9 of 1975/74-1 for de novo disposal in accordance with law.

The lower Appellate Court once again took up the appeal for hearing & after going through the evidence & other materials keeping in mind the observations made by this Court held that the Plaintiff has not acquired any occupancy right over any portion of the suit plot & the alleged sale in his favour was not valid. Similarly, Defendant No. 1 has also not acquired any occupancy right over any portion of the suit land before vesting & he continued to be a tenure holder in respect of land as ''chandandari interest'' merged with higher right of tenure holder to the order of the Tahasildar-cum-Revenue Officer under the O.E.A Act in settling the suit land in favour of Defendant No. 1 was- legal, justified & proper. Further the Plaintiff has no locus standi to challenge such order, as he had no occupancy right over the suit land at any time whatsoever. The lower Appellate Court further held that the Plaintiff had not acquired any occupancy right in respect of any portion of the suit land & as Defendant No. 1 as tenure holder was in possession after settlement of the land in his favour, he had acquired fresh title & as such the suit is not maintainable. The said judgment is assailed before this Court in this appeal filed u/s 100 of the Code of Code of Civil Procedure.

While admitting the appeal the following substantial questions of law were framed :

i) Whether preparation of rent schedule in favour of Defendant Nos. 3 to 5 creates a new right not to be affected by any previous title;

ii) Whether Section 39 of the Orissa Estates Abolition Act will be a bar to the finding to be given on the basis of the rent schedule Ext. H.

Mr. Pal, Learned Counsel for the Appellant strenuously took this Court to the evidence & document, more particularly Ext. 8, the rent schedule & submitted that the Trial Court having arrived at the finding that the rent schedule Ext.H is invalid/void & did not create any title in favour of Defendant No. 1 as no public notice was issued in the locality & the said finding having not been interfered with by the lower Appellate Court, the conclusion that the O.E.A Collector was satisfied about publication of public notice that as Ext.H was a valid document cannot be sustained. Further it is submitted that the lower Appellate Court has wrongly placed onus on the Plaintiff to disprove that notice under Annexures 6 & 7 of the O.E.A Act were not properly served. According to Mr. Pal the onus lies on the person who claims title to establish that the orders passed by the O.E.A authorities were in accordance with law & were passed after observing all paraphernalia''s & as such the conclusions arrived at by the lower Appellate Court cannot be sustained. It is further submitted that as correct procedure was not followed & the orders were passed without following the mandatory requirements of procedure, the conclusions arrived at by the Lower Appellate Court that the suit is not barred u/s 39 of the O.E.A Act is not correct. It is stated that the Civil Court always has the jurisdiction to examine whether the authorities having limited jurisdiction have adopted correct procedure or not & as to whether the conclusions arrived at suffers from the vice of non-observance of principles of natural justice & equity.

The submissions made by Mr. Pal are stoutly denied by Mr. Mishra, Learned Counsel appearing for Respondent Nos. 1 to 7. According to him, Defendant No. 1 admittedly purchased the intermediary right in Khata No. 331 in the year 1925 by Ext.A. On the strength of the said registered document he put forth his claim for settlement after the estate vested with the State Government in the year 1961. The Tahasildar after causing an enquiry & on being satisfied, that by virtue of the Registered Sale Deed Ext.A, Defendant No. 1 had acquired intermediary right over Khata No. 331 rightly settled the lands in favour of Defendant No. 1 & issued Exts. H & M. The said Settlement orders having not been assailed in time have attained finality. The Plaintiff without assailing the orders of settlement before appropriate authorities filed a petition to review or recall the order of settlement made in favour of Defendant No. 1 He was rightly advised to assail the order of settlement by filing an appeal. Admittedly he did not prefer an appeal mainly on the ground that the order of settlement was prima facie void. The said proposition of law is assailed by Mr. Mishra. According to him an order passed by a competent authority, at best can be treated as voidable & under no circumstances it can be held to be ab initio void. The finding of the Trial Court that the orders passed under O.E.A Act were void is contrary to the ratio of the decision decided by the Full Bench of this Court in the case of Krupasindhu Misra and Another Vs. Gobinda Chandra Misra and Others, . He further submitted that as Exts. H & M were prepared on the basis of the orders passed by the competent authorities, onus was upon the Plaintiff to prove that the same were passed without following the principles of natural justice & equity. The Plaintiff having failed to do so is not entitled to any relief whatsoever. Even otherwise, it is submitted that in consonance with Section-39 of the O.E.A Act the, suit assailing any order passed by the O.E.A authorities is barred. This aspect was not kept in mind by the Trial Court.

Heard Learned Counsel for the parties at length. Perused the materials available on record. Admittedly in the plaint the disputed lands were described as southern portion of the suit plot but then during pendency of the trial, by means of an amendment petition the disputed lands were shifted to northern portion of the suit plot. Ext. 2 is the sale deed executed in favour of the Plaintiff. The said sale deed clearly reveals that northern side of the plot was sold, by Ext. 1/2 Ext. B/1 is the document under which Defendant No. 2 claims permanent lease from Defendant No. 1 out of the suit plot. The said documents also relates to southern portion. Ext. 3 is the document by which Plaintiff claims to have purchased Ac.0.03 decimals out of the suit land from Defendant No. 2. Schedule of the sale deed also relates to northern portion. Thus the findings arrived at by the Trial Court that there is ambiguity with regard to property sold to Plaintiff & Defendants was not reconciled.

According to the Plaintiff the lands are ''chandana'' lands-. Prior to 1946 under the Orissa Tenancy Act a ''chandanadar'' had no occupancy right in the land & the same was not transferable. By virtue'' of the amendment of Section 236(1) of the Orissa Tenancy Act occupancy right was created in favour of a ''chandanadar'' residing over the land by constructing a house. The said amendment had retrospective effect. But then it is well settled that the lands other than homestead lands are not covered by the amendment & the same was regulated by local customs.

The Lower Appellate Court has vividly discussed the facts & point of law & arrived at a categorical finding that the Plaintiff had not acquired any right, title & interest over the suit land. This being a finding of fact, needs no interference in the Second Appeal. The lower Appellate Court has also held that the order of the Tahasildar settling the suit lands in favour of Defendant No. 1 was passed after observing all paraphernalia''s & the same is legal & proper. So far as the said finding is concerned, admittedly the Plaintiff has not assailed the order of the Tahasildar settling the lands in favour of Defendant No. 1 after vesting of the estate before the competent authority. Even otherwise in view of the fact that the Plaintiff had. not acquired right, title & interest over the disputed lands, it can be safely concluded that he had no locus standi to assail the said order. Section 39 of the O.E.A Act creates an embargo in assailing the decisions passed by the competent authority under the O.E.A Act in a suit. Though law is well settled that the Civil Court always have the jurisdiction to examine the propriety or otherwise of the modalities adopted by the authorities having limited jurisdiction & as to whether the orders have been passed by observing principles of natural justice & equity. In the case at hand, the conclusions arrived at by both the Courts below on facts reveal that the Tahasildar had in fact observed all paraphernalia before passing the order of Settlement & issued rent schedules: The same being a finding of fact also needs no interference.

After going through the records & the Judgments as well as the evidence both oral & documentary, this Court finds that the Judgment & decree passed by the Lower Appellate Court is just, proper & needs no interference. The Second Appeal is accordingly dismissed.

Second appeal dismissed.