Pitta Seethamma and Others vs Ramachandra Mahapatra

R.N. Misra, J.—Plaintiffs have appealed against the reversing judgment and decree of the learned Subordinate Judge of Berhampur in a suit for declaration that they are occupancy raiyats of the disputed property with heritable rights and for a perpetual injunction restraining the Defendant from interfering with their possession and demanding any dues from them in a pending proceeding under the Orissa Land Reforms Act.

The disputed property is located within the ex-Estate of Chikiti in the district of Ganjam and once upon a time was an Inam. The Inam-Estate vested in the State of Orissa under the provisions of the Orissa Estates Abolition Act of 1951. Plaintiffs claim that the proprietor of the Chikiti Estate had granted Inam of the Maleveram interest only and the Kudivaram was vested in the ten ants. Under the provisions of Section 6 of the Madras Estates Land Act of 1908, the tenants had the stands of occupancy raiyats under the Inam holders. V/hen the Inam-Estate vested, the Inamdars'' right, title and interest in the property got abolished. Under the provisions of Section 8(1) of the Orissa Estates Abolition Act, the status of the tenants was not disturbed. The Defendant appears to have made an application u/s 8-A of the Abolition Act and obtained a fraudulent settlement with him which cannot take away the tenancy right of the Plaintiffs. Taking advantage of the fraudulent settlement, the Defendant has instituted proceedings under the Orissa Land Reforms Act treating the Plaintiff tenants as Bhag Chasis under him. Plaintiffs, therefore, sued for declaration of their occupancy status.

The Defendant relied upon the settlement of the property with him u/s 8-A, of the Estates Abolition Act and claimed that the said decision was final and Section 39 of the abolition Act operated as a bar to the Civil Court''s jurisdiction in the matter. When he claimed through registered notice rajbhag, the Plaintiffs had undertaken to pay the same, but later they refused to do so. Therefore, a proceeding under the Orissa Land Reforms Act has been appropriately started.

The learned Munsif came to hold that the Plaintiffs had occupancy right and the same was not to be disturbed under the provisions of the Abolition Act. Accordingly he decreed the suit and declared the Plaintiffs to be occupancy tenants of the property and restrained the Defendant from interfering with their possession.

The learned Subordinate Judge on appeal by the Defendant did not disturb the finding that the Plaintiffs were occupancy tenants of the property. He, however, came to hold that the settlement granted by the Collector under the Estates Abolition Act operated as a bar under the provisions of Section 39 of that Act in the matter of Civil Court entertaining the dispute. Accordingly he reversed the decree and dismissed the suit. This reversing decree is assailed in second appeal.

That the status of the Plaintiffs was that of occupancy tenant''s is not disputed by Mr. Mohanty for the Defendant and, in my opinion, very rightly. As already indicated, the Inam grant was confined to the Malevaram interest and the Kudivamm has vested in the tenets. Under the provisions of Section 6 of the Madras Estates Land Act, the tenants in whom Kudivaram vested had acquired occupancy status. Section 8(1) of the Estates Abolition Act provides:

Any person who immediately before the date of vesting of an estate in the State Government was in possession of any holding as a tenant under an intermediary shall, on and from the date of vesting, be deemed to be a tenant of the State Government and such person shall hold the land in the same rights and subject to the same restrictions and liabilities as he was entitled or subject to, immediately before the date of vesting.

It is on the basis of thief provision that the Supreme Court in the case of Kumar Bimal Chandra Sinha Vs. State of Orissa, , observed:

... The Act was intended to abolish all proprietors, sub-proprietors, tenure-holders and under-tenure-holders, with a vanity of names but did not touch the interest of the raiyat...

If the ex-intermediary had not obtained a settlement in his favour under the provisions of Section 7 read with Section 8-A, of the Abolition Act, the claim of the Plaintiffs was bound to succeed without any difficulty. In this case, after vesting, the Defendant made an application u/s 8-A, of the Estates Abolition Act and his application was registered as Claim Case No. 2284 of 1961. Ext. E is the order of settlement. In view of the order of settlement made under Chapter II of the Abolition Act, Section 39 operates as a bar to the jurisdiction of the Civil Court in entertaining the present suit. The said provision IS to the following effect:

No suit shall be brought in any Civil Court in respect of any entry in or omission from a compensation Assessment-roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subject of any application made or proceedings taken under the said Chapters.

It has already been decided by this Court in the case of V. Krishna Rao Dora v. Kotini Sitaram Dora 1975 (2) C.W.R. 1288, that the Collector has got exclusive jurisdiction to determine the factum of has possession of an intermediary on the date of vesting in a proceeding under the Orissa Estates Abolition Act. Such a fact is not jurisdictional fact but is the basis of the conclusion to be arrived at in the exercise of jurisdiction. The decision of the Collector is final subject to appeal and other remedies provided in the statute and cannot be questioned in the Civil Court. In the said case, it has been further indicated that in a proceeding u/s 8-A, of the Act, if the contest is between the intermediary claiming to be in khas possession and a person claiming to be occupancy raiyat, the Collector would have jurisdiction to determine the dispute. In this case when the Defendant as intermediary has made the application, if the Plaintiffs claimed occupancy right and Khas possession, the dispute was within the cognizance of the Collector under the Act. The lower appellate Court placed reliance on a decision of this Court in the case of Ratnakar Naik and Others Vs. Kedarnath Mohapatra and Others, , where it was held that the scheme of Section 8-A, is that the decision is to be reached after giving due notice of the claim made by an ex-intermediary claiming to be in possession of a certain land. If a person claims to be an occupancy raiyat in respect, thereof, he should be sufficiently vigilant and filed his objections within the time prescribed. If he slips over his rights and does not file any objection or if his objection is reflected and he does not choose to file an appeal against the order, he is to" suffer the consequences. Accordingly it was concluded that the bar of Section 39 was applicable. The Division Bench In Krishna Rao Dora''s case 1973(2) C.W.R. 1283, approved the view taken in this case.

In the case of Mallia Budhi Thakurani and Another Vs. Udaynath Parida and Others, the question was again examined.'' The learned Chief Justice in paragraph 5 of the judgment observed:

In view of the aforesaid principles well settled by the decisions of this Court it was for the Plaintiffs to prove that in fact a settlement was made by the Collector in favour of Plaintiff No. 1 settling the lands on it as the intermediary in khas possession. The Plaintiffs should have proved that there was due service of public notice as enjoined upon by law, when the contesting Defendant specifically challenged that he had no knowledge of such a proceeding and there was no due service of notice. If the Plaintiffs failed to prove the settlement, then the title of Defendants 5 and 6 as occupancy raiyats on the basis of their purchase from Defendants 1 to 4 cannot be resisted...

In paragraph 6 of the plaint, the Plaintiffs did challenge the settlement by the Collector by contending:

Under the circumstances even if the first Defendant had obtained any declaration from the Estate Abolition Collector that he is the person in khas possession of the suit schedule lands and a recorded tenant, such a declaration by the Estate Abolition Collector is without jurisdiction, void, contrary to law; it is in exercise of jurisdiction in excess of the powers conferred under the Estates Abolition Act and as such ultra vires and illegal and not binding on the Plaintiffs.

When such a challenge has been offered, it was for the Defendant to show categorically that the settlement with him was in accordance with law. In the instant case, nothing has been done on- behalf of the Defendant in that regard. The learned Appellate Judge was not prepared to place the burden on the Defendant for purpose of supporting the order. In part of paragraph 6 of his

judgment, he observed:.

... Here the question arises as to on whom is the onus to prove that proper procedure u/s 8-A was followed. It is true that the person taking benefit u/s 8-A should prove this fact that proper procedures are followed. But in my opinion, not in all cases, had the Plaintiffs specifically mentioned in the plaint that the order of the O.E. A, Collector is without jurisdiction, not being in conformity with the provisions of Section 8-A of the O.E.A. Act, the matter would have been something. But in absence of such pleading, it was their duty rather to bring to the notice of the Court that proper procedure was not followed. I would place another argument for this, i. e. if no evidence would have been adduced, then what would have been the result? I think on the basis of the document marked Ext. E, the Court has no other alternative that to dismiss the suit u/s 39 of the O.E.A. Act as settlement has already been made in the name of the Defendant under the O.E.A. Act. In that view of the matter also, I feel it was the duty of the Plaintiffs to prove that such document was not granted after compliance of provisions of law nor there can be any presumption that whatever official act was done was done in accordance with law

The manner in which the lower appellate Court has proceeded is definitely contrary to the law indicated in the case reported in Mallia Budhi Thakurani and Another Vs. Udaynath Parida and Others, . The learned Appellate Judge also lost sight of the true plea raised in the plaint in regard to the settlement under the Abolition Act. The lower appellate Court has placed the burden on wrong shoulders and thus committed an'' illegality as indicated by the Supreme Court on more than one occasion bringing the matter within the purview of Section 100 of the Code of. Civil Procedure. It is quite possible that the deficiency on the Defendant''s side was on account of the fact that the law on the point was not clear.

Undoubtedly Plaintiffs had occupancy right. Indisputably the Defendant has obtained a settlement under the Estates Abolition Act in his favour of the very property. Under the scheme of the Act, the occupancy right was not to be disturbed. Under the same statute, full jurisdiction has been granted to the Collector to settle lands which vested in the State. In this view of the matter, it is appropriate that the judgments and decrees of both the Courts below should be set aside-and the matter should go back to the trial Court with liberty to Defendant to support the order of settlement in the manner indicated in Mallia Budhi Thakurani and Anr. v. Udaynath Panda and others''.

I would accordingly allow the appeal, vacate the judgments of both the Courts below and remit the matter to the trial Court for a fresh disposal of the suit with liberty to the Defendant to lead evidence and the Plaintiffs'' to lead evidence in opposition. After'' remand, the Plaintiffs status as occupancy raiyat by the time of vesting would not be permitted to be disputed. Costs shall abide the event.