State of Orissa and Another vs Daitari Sahu and Others

A.K. Parichha, J.—This appeal is directed against the judgment and decree passed by learned Subordinate Judge, Rourkela in Title Appeal No. 8 of 1985 confirming the judgment and decree passed by learned Munsif, Bonai in Title Suit No. 6 of 1984.

The present respondents, as plaintiffs, filed Title Suit No. 6 of 1984 in the Court of learned Munsif, Bonai asking for declaration of their right and title over the suit property and also for declaration that the institution of Encroachment Case No. 116 of 1984 under O.P.L.E. Act for their eviction from the suit land is null and void and without any jurisdiction. Prayer for permanent injunction restraining the present appellants from evicting respondents from the suit land was also sought for.

The case of the plaintiffs is essence, is that, their father was the owner in possession and recorded tenant in respect of the suit land, but in the current settlement inadvertently the said land was recorded in the name of the State. The plaintiffs filed mutation case before the Tahasildar, Bonai for deleting the name of the State and to record their names in respect of the suit land, but their prayer was rejected, whereafter they preferred appeal but the appeal was also rejected. Taking advantage of such entry in the record of right of Hal Settlement, the Tahsildar, Bonai initiated Encroachment Case No. 116 of 1984 under the provisions of O.P.L.E. Act for their eviction from the suit land and in that proceeding show cause notice u/s 7 of the O.P.L.E. Act was issued seeking their summary eviction. So, finding no other alternative, they filed the suit asking for the aforementioned reliefs.

The defendants contested the suit pleading, inter alia, that the suit land is the land of the State, the plaintiffs have no right and title over the same and that they are encroachers and therefore, initiation of the eviction proceeding was proper. They also pleaded that the suit is hit under the provisions of O.P.L.E. Act and barred by limitation.

Learned trial Court framed as many as six issues and accepted evidence of the parties. Plaintiffs relied on the oral evidence of P.W. 1 and documents Exts. 1 to 5. No evidence, oral or documentary was adduced on behalf of the defendants. On perusing the evidence and surrounding circumstances, the trial Court decreed the suit with the observation that the plaintiffs'' father was the recorded tenant of the suit land and note of possession in favour of the plaintiffs was there in the 1943 settlement but during current settlement, the suit land was recorded in the name of the State Government by mistake, that the Tahasildar was not justified in initiating Encroachment case and that Section 16 of the O.P.L.E. Act does not operate as a bar to the jurisdiction of the Civil Court. The learned 1st appellate Court also confirmed the above noted findings. The defendants have therefore come up with the present appeal.

The following substantial questions of law were formulated for consideration in this appeal.

(i) Whether on the face of the appeal and revisional provision in the O.P.L.E. Act, the Civil Court is competent to entertain the suit to nullify the orders passed by the Tahasildar in the Eviction proceeding?

(ii) Whether on the face of the provisions of Section 16 of the O.P.L.E. Act, the suit was maintainable?

Mr. S. Das, learned Additional Standing Counsel appearing on behalf of the appellants-State submitted that the plaintiffs'' suit was based on long possession and the main reliefs sought for were against the entry in the R.O.R. of the current settlement and initiation of encroachment proceeding for their eviction. According to him, such issues essentially come within the ambit of the O.P.L.E. Act as well as the Orissa Survey and Settlement Act and because special Tribunals are available for adjudication of such disputes, jurisdiction of the Civil Court is ousted in view of the bar provided u/s 16 of the O.P.L.E. Act and Section 29(2) of the Orissa Survey and Settlement Act. In support of his stand Mr. Das relied on 73 (1992) CLT 860 Magulu Jal and Others Vs. Bhagaban Rai and Others, Magulu Jal and Ors. v. Bhagaban Rai and Ors. Mr. S. Pradhan, learned Counsel appearing for the Respondents, on the other hand, contended that the plaintiffs based their claim on antecedent title and possession and asked for declaration of their right, title and interest over the suit property and connected consequential reliefs namely to declare the initiation of the encroaching proceeding as null and void and without jurisdiction. He further submitted the Tribunal under the O.P.L.E. Act not being competent to grant relief regarding declaration of title, confirmation/recovery of possession which are the main reliefs sought for in the suit, the bar provided under these Acts would not apply to the present case and therefore, the jurisdiction of the Civil Court was available to decide the controversy raised in the suit. Mr. Pradhan also argued that when there is a bona fide dispute relating to the title of the land in question, the State cannot univocally assume that it has title over the said property and initiate proceeding under the O.P.L.E. Act. In support of his contentions, he relied on the cases of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, ; State of Orissa Vs. Bhanu Mali (Dead) Nurpa Bewa and Others,

The questions raised can be answered together as they virtually relate to the jurisdiction of the Civil Court to entertain the suit in the face of the statutory bar provided u/s 16 of the OPLE Act. Jurisdiction of the Civil Court is defined u/s 9 of the Code of Civil Procedure. Time and again issues have come up before different Courts about the jurisdiction of the Civil Court to entertain suits in the face of the bar provided under special statutes, such as, O.P.L.E. Act, O.L.R. Act, Survey and Settlement Act etc. While answering such a question in the case of AIR 1940 105 (Privy Council) the Privy Council recorded the following observation.

The exclusion of the jurisdiction of the Civil Court is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the Civil Courts would have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedures.

The aforesaid principle was followed in several cases including a Full Bench decision of this Court in the case of Magulu Jal and others (supra). So the legal position is settled that even on the face of statutory bar in the special enactment and availability of Tribunal for adjudication of disputes relating to such special statutes, Civil Court would have jurisdiction where provisions of the Act have not been complied with or the Statutory Tribunal has not acted in conformity with the fundamental principle of judicial procedure.

The above noted principle is, however, academic for the purpose of present litigation, as in the present case, the dispute relating to jurisdiction raised by the appellants is specific and limited to the bar provided u/s 16 of the O.P.L.E. Act. The contention raised by Mr. Das in this regard is that when the plaintiff-Respondents raised the dispute regarding maintainability of the Encroachment proceeding initiated for their eviction, the authorities/Tribunal specially constituted under the O.P.L.E. Act was competent to settle the issue and therefore, the jurisdiction of the Civil Court was barred. Mr. Pradhan, on the other hand, sates that the main issue being the title of the suit land and the OPLE Tribunal not being competent to decide the issue of title, Civil Court had jurisdiction to entertain the suit. The answer to this controversy is available in the case of Government of Andhra Pradesh Vs. Thummala Krishna Rao and Another, , where while answering on an identical question the Apex Court gave the following observation:

The summary remedy for eviction, which is provided for by Section 6 of the Act can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is "the property of Government". If there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take an unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person, who is in possession of the property under a bona fide claim or title. The summary remedy prescribed by Section 6 is not the kind of legal process, which is suited to an adjudication of complicated questions of title.

(Section 6 of the Andhra Pradesh Encroachment Act is para materiato the provisions of Section 16 of the O.P.L.E. Act).

Furthermore, jurisdiction of the Civil Court in such a situation was exhaustively analyzed by this Court in the case of State of Orissa v. Bhanumali (supra) where after referring to various case laws, it was said that the question relating to title of either party can be decided only by the Civil Court and not in a summary proceeding under the O.P.L.E. Act and accordingly, the suit for declaration of title, confirmation of possession or in the alternative recovery of possession alongwith the matter of eviction under the O.P.L.E. Act would be maintainable in the Civil Court and Section 16 of the O.P.L.E. Act will not operate as a bar in such situation.

In view of such ratio laid down by the Division Bench of this Court and in the case of Government of Andhra Pradesh v. T.K. Rao and Anr. (supra), it is now settled that in a case where a party raises bona fide dispute regarding title over the property, proceeding cannot be adjudicated under the O.P.L.E. Act and in such situation the Civil Court would have jurisdiction to entertain the suit and grant proper relief relating to title and other consequential reliefs.

In the present case, the Plaintiffs-Respondents asserted that their father was the owner, title holder and person in possession of the suit property and the property also stood recorded in his name in 1943 settlement, but inadvertently the said land was recorded in the name of the State during the Current Settlement and that basing on such wrong entry the Tahasildar initiated Encroachment proceeding for their eviction. They prayed the Civil Court to declare their right and title over the suit property and also to declare that the initiation of the encroachment proceeding was without jurisdiction. The issues therefore, involve bona fide dispute relating to right and title over the suit property, which O.P.L.E. Court was not at all competent to decide. When there was bona fide dispute relating to title, the State was also not legally competent to univocally decide that the property belongs to itself and initiate proceeding for eviction of the respondents therefrom. That being the situation as per the ratio of the Govt. of Andhra Pradesh case and Bhanumali''s case (supra), the relief was available only in the Civil Court and not in the O.P.L.E. Court.

Thus in the face of the factual and legal position involved in the present case, the learned Courts below did not commit any legal error in observing that the Civil Court has jurisdiction to entertain the suit, filed by the Respondent-Plaintiffs.

For the aforesaid reasons, both the substantial questions raised in this appeal are answered in negative and consequentially the appeal is found to be without any merit and is dismissed on contest. But in the peculiar circumstances, the parties are directed to bear their own cost in the appeal.