Praful Kumar Dhal vs Kali Panda and Another

Mohahapatro, J.—This is a Plaintiff�s second appeal against the reversing judgment of the lower -appellate Court arising out of a suit brought by the Plaintiff for declaration of title and for recovery of possession of eight cents of land which is to the eastern portion of plot No. 534, the total area of which is 21 cents. This disputed land was us d as a residential house of the Defendants. The disputed land is situate within the ambit of touzi No. 566 and the Plaintiff is the purchaser in revenue sale for arrears of rent for sixteen annas of the aforesaid touzi in March 1944. He took delivery of possession on 5th October 1944. This being used as residential house of the Defendants, according to the Plaintiff�s version, it was covenanted that the Defendants would make arrangement for vacating the house within one year and the Defendants not having vacated the house, the present suit has been brought for declaration of title and for recovery of possession.

The defence, in short, was that this is a Chandand holding of the ancestors of the Defendants and further that as this was the residential house of the Defendants this was not really transferred on the basis of the sale held under the Revenue Sale Act.

The Plaintiff�s suit was decreed in the first instance against the Defendants who filed an appeal before the first appellate Court who remanded the case for disposal in accordance with law to the trial Court. But again in the trial Court the same result persisted and the Defendants again went up in appeal. The appeal having been allowed, the Plaintiff has come up with the present second appeal. The Subordinate Judge in his appellate judgment decided that the Defendants had no right in respect of the property in dispute and that the title passed on to the purchaser on the basis of the revenue sale which was held in March 1944, but he dismissed the Plaintiff�s suit on another ground, that is, on account of the vesting of the suit property in the State Government under the provisions of the Orissa Estates Abolition Act, 1951.

Mr. Swain, appearing on behalf of the Plaintiff Appellant, ha taken up two points: (i) that the Plaintiff under the provisions of Section 6 of the Orissa Estates Abolition Act must be deemed to be a tenant under the Government after the estate has vested and as such he has got the right to pursue the suit to evict the Defendants who are trespassers; and (ii) that on the basis of the provisions of Order 22, Rule 10, CPC the Plaintiff, when he had the right to sue at the time when the suit was instituted, will be entitled to pursue the lis until it is finally concluded. On the first point Mr. Swain has relied upon two decisions of the Patna High Court reported in Mahant Sukhdeo Das v. Kashi Prasad and Mahabir v. Ram Narain. It would be relevant to quote the relevant passages from Section 6, Sub-section (1):

With effect from the date of vesting, all homesteads comprised in an estate and being in the possession of an Intermediary on the date of such vesting, and such building or structures together with the lands on which they stand, other than any buildings etc shall notwithstanding anything contained in this Act, be deemed to be settled by the State Government with such Intermediary and with all the share-holders owning the estate.

Mr. Swain�s contention is that under the provisions of Section 6(1) he must be deemed in the eye of law to be a tenant and as such he is to pursue his remedies in this suit. The principle laid down by their Lordships of the Patna High Court in the aforesaid two cases are exactly the same. They were construing the term "possession" and in their Lordships� view possession does not mean only actual possession" but it may include "constructive possession, even the possession of a trespasser". So when the homestead, in question, even though was not in actual possession of the Plaintiff but was in possession of trespassers, the Plaintiff would be entitled to sue and claim protection under the provisions of Section 6 of the Abolition Act. Their Lordships laid emphasis on the words "right to possess" and when the Plaintiff had right to possess the land it was immaterial whether he was not in actual possession of the homestead which was in the possession of the trespassers whom he was to evict in due course of law. The principle laid down by their Lordships of the Patna High Court in both the cases has no application to the case before us, because of the special provisions of our Act, that is Section 8-A, which was placed on the statute book by Orissa Act 15 of 1956. It runs as follows:

8-A. The Intermediary shall file his claim in the prescribed manner for settlement of fair and equitable rent in respect of lands and buildings which are deemed to be settled with him u/s 6 or Section 7 before the Collector within three months from the date of vesting.

It is to be mentioned in this connection that under the provisions of Section 6 it was the duly imposed upon the occupant of the bonesets to approach the Collector for settlement of fair and suitable rent and by inserting this alignment a time limit has been fixed. The penal clause is to be found in Sub-section (3) of Section 8-A It is important for our purpose:

On the failure of filing the claims within the period specified under this section the provisions of clause (h) of Section 5 shall, notwithstanding anything to the contrary in Sections 6, 7 and 8, apply as if the right to possession of the lands or buildings or structures, as the case may be, has vested in the State Government by the operation of this Act and the return the right to make any such claim as aforesaid shall stand extinguished.

The provisions seem to be absolutely clear to us that on the failure, to apply within the prescribed time for settlement of fair rent, of the Intermediary occupying the house or the homestead, his right to possess must stand extinguished. Mr. Swain was questioned by us as to whether his client followed the procedure. He made a statement before us that he was not in a position to state whether such steps were taken or not. This new amending provision is there for a long time and this appeal was once beard by one of the Hon�ble Judges of this Court who has referred the matter to us. In the meantime he must have been aware of the fact whether the client had taken recourse to the remedy u/s 8-A of the Abolition Act. Mr. Swain not having been able to satisfy us that the requisite application was filed in time, we take it that such an application was not at all filed and as such his connived right to possess the disputed land had so extinguished.

The position, therefore, is that when the Plaintiff�s right to possess had stood extinguished it is quite elementary that he has become no more than a mere trespasser. It is a very well known principle that in a Suit for ejectment a trespasser cannot sue to evict another trespasser in possession. In our view, the first point taken by Mr. Swain must fail.

While arguing the second point Mr. Swain has relied upon the provisions of Order 22, Rule 10 of the CPC which are to the effect:

In other cases of an assignment, creation or devolution of any interest during the pendency of suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

It is clear from the language of this provision that this is only an enabling provision in favour of an assignee or successor- in interest of a party to the suit. Indeed there is no penal clause attached to the rule that if the Plaintiff loses all his interest, the suit will stand dismissed. But that position follows from the most fundamental rule of law that when the Plaintiff ceases to have the right and the cause of action therefore lapses, he cannot be allowed to continue the suit. Moreover the present case of abolition of the estate or the abolition of the interest of an Intermediary cannot be taken to be a case of assignment, creation or devolution as contemplated under the rue. Under the provisions of the Abolition Act, the rights of the Intermediaries are completely wiped out and the estate absolutely vests in the Government and the Government as the ultimate owner of the properties in the State becomes the owner. It is neither a case of transfer nor a case of creation or devolution. Government is not the successor-in-interest of the present Plaintiff. It need not be mentioned that the State Government will not be bound by the decree that may eventually be passed in the absence of the State Government in these proceedings. There are a number of decisions where in the case of transfer or devolution of interest of the Plaintiff, the Plaintiff had been allowed to go on with the suit even though the transferee or the successor-in-interest had not made an application under Order 22, Rule 10. This position is quite reasonable. In the case of transfer, the transferee pendente-lite will be bound by the decree and he cannot really depend entirely on the discretion of the Court which is provided for under the Rule. So if the Plaintiff chooses be ought to be given a chance of bringing the lis to an end. But in a case of their nature where it is not a case of assignment, creation or devolution of interest and when the State Government will not be bound by the decree, the Plaintiff having lost all interest in the property in dispute, he cannot and should not be allowed to continue the lis as he is no more than a mere trespasser. We may observe further that supposing the Plaintiff on the merits would have failed in this suit to evict the present Defendant and the Court would have found that the Defendant has got some abiding interest, can it be suggested that the state Government will be bound by the decree? The State Government instate of the decree can bring a suit for eviction of the Defendant. In these circumstances therefore, we are of the opinion that the lower appellate Court was right and justified in non-suiting the Plaintiff.

In conclusion, therefore, the appeal fails and is dismissed. But there will be no order as to costs of this Court. Mr. P. Roy, appearing on behalf of minor Respondent No. 2, was present during the bearing of the appeal, and he is entitled to withdraw the costs in deposit.

Barman, J.

I agree.