Panu Behera vs Bhramara Barik and Others

S. Acharya, J.—Defendant No. 1 has preferred this appeal against the decision of the Additional District Judge, Puri in Title Appeal No. 72/61 of 72/71 confirming the decision of the trial Court in O.S. No. 48/68.

The suit lands are in three plots, and in the Record-of-Rights prepared in the year 1939 these lands are shown as Bari lands recorded in the name of Baja Behera and Bhagi Behera who are shown as sikimi royats of these lands. Defendants 1 and 2 are respectively the son and nephew of Baja and Bhagi.

The Plaintiffs suit is for declaration of title and confirmation of possession, or in the alternative for recovery of possession, in respect of the above mentioned 7 decimals of land. on the basis that the Plaintiffs are the occupancy royats of the said land and after the death of Baja and Bhagi previous to 1936 the Plaintiffs took over possession of the suit lands, and since that time they are in possession of the same.

According to the Defendants, Bhagi, one of the sikimi tenants in respect of the said lands was in possession of the said homestead lands till his death in the year 1947 J and so by that time he had acquired occupancy right in the said lands as per the provisions of Section 236 of the Orissa Tenancy Act. After the death of Bhagi, Defendant No. 1 and Defendant No. 2, being respectively the adopted son and nephew of Bhagi, acquired occupancy royati right in respect of the said lands. They further assert that Baja and Bhagi were all along in possession of the suit lands and after the death of Bhagi in the year 1947 the Defendants, having inherited the suit lands with occupancy royati right over the same, are continuing in possession of the same in the same right.

The Courts below have rightly found that the question as to whether Defendant No. 1 was the adopted son Bhagi is not relevant for the purpose of deciding the controversy between the parties, for as is fairly conceded by the counsel for the parties, if it is held that Bhagi died after having acquired occupancy royati right in respect of the suit lands, then Defendants 1 and 2, his two nephews, will have occupancy royati right in the said lands even though Defendant No. 1 was not the adopted son of Bhagi.

The trial Court held that Baja and Bhagi died before 1936, and as they were sikimi tenants of the suit lands, their heirs did not have any right to continue in possession of the said lands. It further held that the Plaintiffs possessed the suit lands after the death of Bhagi. That Court however found that Bhagi died in 1936. It also found that the Plaintiffs are not in possession of 315 sq. links of land from the southern side of suit plot No. 1241. On the above findings it dismissed the Plaintiffs suit, for the said 315 sq. links of land and decreed the same for the rest.

The appellate Court also held that Baja and Bhagi were sikimi tenants and so the Defendants did not have any right title or interest in the said lands after the death of the said sikimi tenants. It arrived at the finding that the Defendant'';'' are not in possession of the suit lands since 1936. On that basis it confirmed the decision of the trial Court. As the Plaintiffs did not prefer any cross-objection against the above mentioned finding of the trial Court regarding 315 sq. links out of suit plot No. 1241, that finding was also confirmed by the appellate Court.

While deciding the appeal that Court did not decide the question as to whether Bhagi died in 1947, as asserted by the Defendants or in 1936, as asserted by the Plaintiffs, by making'' an observation that it was immaterial in this case to decide that question. A decision on that question is necessary if one has to decide in this suit as to whether Bhagi had occupancy right over the suit lands by the time of his death. If he had occupancy right then the Defendants undisputedly shall be considered to have occupancy right in the said lands.

It is urged by Mr. Pal, the learned Counsel for the Plaintiff-Respondents, that question can no longer be taken up for decision as that matter has already been decided in the negative by the revenue authorities on the petition filed before them by the Defendants under Sections 4 and 9 of the Orissa Land Reforms Act. According to Mr. Pal, the Defendants are precluded from agitating that matter in this suit on the principles of constructive res judicata and under the provisions of Section 67 of the Orissa Land Reform Act. Section 67 of the Orissa Land Reforms Act provides that Civil Courts have no jurisdiction to decide matters which any officer or other competent authority is empowered by or under that Act to decide. It is not disputed that the Defendants made a petition showing that to be one under Sections 4 (1)(i) and 9 of the O.L.R. Act before the Revenue authorities. But in view of the provisions of Section 67 it is to be seen whether the said petition was at all legally maintainable before the Revenue authorities and/or whether the said authorities had jurisdiction to decide the matters contained in the said petition. Mr. Patnaik, the learned Counsel for the Appellant, states that the said petition was made under misconception, for u/s 4(1)(i) read with Section 4(5) and u/s 9 of the said Act the Revenue Authorities had no jurisdiction to entertain the said application and/or to pass any order on the matters contained in the said application, or to declare that the Defendants had acquired occupancy royati right on the suit properties. There is weight and substance in the above submission of Mr. Patnaik. The provision u/s 4(1)(i) relates to persons who before the commencement of that Act were recorded in the Record-of-rights as sub-tenants or under royats in respect of lands under their cultivation. The Defendants undisputedly and as found by the Revenue authority, were not recorded as sub-tenants or under-royats, and so they could not and were not required to make any application u/s 4(1)(i) read with Sub-section 5 thereof to declare them as royats of the said lands. Section 9 speaks of royats and tenants in respect of any land but not having permanent and heritable rights in respect of any site on which his dwelling house or farm-house stands. The Defendants in this case claim that they have their dwelling house on the suit Bari lands on which since the time of Bhagi they have acquired occupancy right by virtue of Section 236 of the Orissa Tenancy Act. So Section 9 does not apply to the Defendants and the Revenue authority had no jurisdiction to decide any dispute or make any declaration about the said rights claimed by the Defendants on the suit Bari lands. It is of course not known on what particular averments the said application before the Revenue Officer was made, but if the said petition was made on the basis of their case and claim in this suit, that application, for reasons stated above, was misconceived and the Revenue authorities had no jurisdiction to entertain the said application, nor were competent to decide or to make any declaration about the rights claimed in this suit by the Defendants on the suit lands. On the above considerations Section 67 does not bar the Defendants to agitate the questions raised by them in this suit. As the Revenue authority did not have any jurisdiction to decide the said matters raised in this suit, the Defendants cannot also be precluded, on the principles of constructive res judicata, to raise the same questions once again in this suit.

The Defendants in this suit categorically assert that Bhagi, the admitted sikimi tenant in respect of the suit lands, died in the year 1947, and as per the provisions of Section 236 of the Orissa Tenancy Act, Bhagi had acquired occupancy right over the suit lands, and so his adopted son and nephew, i. e. the Defendants, after his death inherited the suit lands with occupancy right thereon. Section 236 was en grafted into the Orissa Tenancy Act by Orissa Act 10 of 1946 which came into force on 29-11-1946. Baja and Bhagi admittedly were sikimi tenants under the Plaintiffs. The suit lands have been recorded as Bagi lands. Section 236 provides:

Notwithstanding anything in this Act the incidences of tenancy of any tenant including the bolder of a service tenure in respect of the homestead in which such tenant ordinarily resides shall be regulated by the operations of this Act applicable to land held by an occupancy royat.

So, if the suit lands are homestead lands and Baja and Bhagi were ordinarily residing therein and Bhagi died after the coming into operation of the said section in November, 1946, then it can be held that Bhagi by the time of his death was an occupancy royat in respect of the suit lands, and after his death his heirs and successors,- that is, the Defendants, inherited the suit lands, with occupancy right on the same.

Accordingly, on the pleadings of both the parties, the Court below should have adverted to the question as to whether Bhagi died in the year 1936, as alleged by the Plaintiffs; or died in 1947, as asserted by the Defendants, or at any time after the coming into force of Section 236 of the Orissa Tenancy Act. As the Court below has not decided that question the suit has not been decided in the correct perspective, and so it is necessary to remand this case to the Court below to decide the afresh after deciding the above questions.

I, therefore, set aside the judgment and decree of the Court below and remand the case to- that Court who on framing the following two fresh issues and allowing both the parties an opportunity to adduce fresh evidence on all aspects of these issues, shall decide afresh the entire case on merits in accordance with law:

(1) Whether Bhagi died after coming into operation of the Act 10 of 1947 on the 29th November, 1946?

(2) If Bhagi died after the aforesaid date, whether he had acquired occupancy royati right in respect of the suit lands as per the provisions of Section 236 of the Orissa Tenancy Act?

In the result the case is remanded to lower appellate Court with the above directions. Costs of this appeal will abide the final result.

The L.C.R. be sent back immediately.