Dismissed

Mangal Ch. Dandasena v. State

Orissa HC6 Jul 2018SA/24/2001

Case brief

AI extract

What is this about?

The High Court of Orissa dismissed the appeal in a suit for declaration of title and permanent injunction. The Court held that Gounti-raiyati lands are not personal property and the civil court lacks jurisdiction. Further, the plaintiffs failed to prove adverse possession, leading to the dismissal of the appeal.

What did the court decide?

The appeal filed by the plaintiffs against the confirming judgment and decree was dismissed.

Mangal Ch. Dandasena Vs State — Property and Title | Orissa HC (2018)

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HIGH COURT OF ORISSA: CUTTACK

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S.A.No.24 of 2001

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From the judgment and decree dated 11.9.2000 and 26.9.2000 respectively passed by Md.Abdul Majid, learned Additional District Judge, Sonepur in T.A.No.36/32 of 1994-99 confirming the judgment and decree dated 2.4.1994 and 22.4.1994 passed by the learned Subordinate Judge, Sonepur in T.S.No.5 of 1980.

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Mangal Ch. Dandasena and others…. Appellants

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Versus

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State of Orissa and others

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…. Respondents

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For Appellants -- Mr.L.K.Moharana, Advocate

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For Respondent -- Mr.R.P.Mohapatra, Addl.Govt.Advocate (For R.1)

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J U D G M E N T

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PRESENT:

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THE HONOURABLE DR. JUSTICE A.K.RATH Date of Hearing :28.06.2018 & Date of Jdgment:06.07.2018

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Dr.A.K.RATH, J. The plaintiffs are the appellants against a confirming judgment in a suit for declaration of title, permanent injunction and that the order passed by the Tahasildar correcting the 4^th settlement R.O.R. is without jurisdiction.

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The case of the plaintiffs was that the suit property had been recorded in the name of their common ancestorDukhiram Gountia in the 3^rd settlement operation. He was in possession of the same. After him, the plaintiffs are in possession of the suit property. During 4^th settlement operation, the suit property had been recorded in the name of plaintiff no.1 and other co-sharers. They used to pay rent to the State. The State had no title and possession over the suit property. The Tahasildar had no jurisdiction to correct the record of rights. With this factual scenario, they instituted the suit seeking the relief mentioned supra.

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Defendant no.1 is the State Government. The other defendants except defendant no.5 are the villagers of village Sannupalli. Defendant no.5 is the Chinajuri Gram Panchayat. The case of the defendants is that the tank in question over the suit land was excavated by the Government over the Government land, which was Bhogra land. The same was recorded as Jalamagna Khata. The water of the tank is being used for irrigation, drinking, bathing and other purposes. The State Government is the paramount owner of the tank. The plaintiffs had no right, title, interest and possession over the suit land. The plaintiffs managed to get the name of plaintiff no.1 recorded in the R.O.R. A revision was filed before the Board of Revenue, Orissa for correction of R.O.R. The Board of Revenue set aside the order of the Assistant Settlement Officer and directed correction of R.O.R. On the basis of the order

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passed by the Board of Revenue, the Tahasildar corrected the R.O.R.

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On the inter se pleadings of the parties, learned trial court framed six issues. Parties led evidence. Learned trial court dismissed the suit holding inter alia that the suit tank belongs to the State. The tank had been excavated for use of the villagers. The plaintiffs were not in possession of the tank. Unsuccessful plaintiffs filed appeal before the learned District Judge, Sonepur, which was subsequently transferred to the court of the learned Additional District Judge, Sonepur and renumbered as Title Appeal No.36/32 of 1994-99. The appeal was eventually dismissed.

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Heard Mr.L.K.Moharana, learned Advocate on behalf of Mr.S.P.Mishra, learned Senior Advocate for the appellants and Mr.R.P.Mohapatra, learned Additional Government Advocate for respondent no.1.

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Learned Advocate for the appellants submitted that the civil court has jurisdiction to entertain the suit, consider and decide whether the statutory tribunal has acted within the ambit of powers, even if the jurisdiction is excluded. The courts below committed a patent error in not examining the tenability of the order of the Tahasildar, Sonepur on the ground that the Tahasildar, Sonepur has complied with the direction of the Member, Board of Revenue passed vide Ext.A/1. The consolidation authorities have no power to adjudicate the right,

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title and interest of non-consolidable lands. Recording the name of the State in the consolidation R.O.R. will not operate as res judicata. Gountia right is heritable. After coming into force of The Orissa Offices of Village Police (Abolition) Act, 1964 the property, which was in possession of Gountia, ought to have been settled in his name in stitiban status. The plaintiffs are in possession of the suit tank peacefully, continuously and with the hostile animus to the true owner and, as such, perfected title by way of adverse possession. He further submitted that the suit tank had been recorded in the name of the ancestor of the plaintiffs in the 3^rd and 4^th settlement operation. Thus, the land ought to have settled in favour of the plaintiffs. Though no prayer has been made to set aside the order passed by the Member, Board of Revenue, but then the Court can mould the relief.

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Per contra, learned Additional Government Advocate submitted that both the courts below have concurrently held that the plaintiffs are not in possession of the suit land. The ancestors of the plaintiffs were Gountia of the village. After coming into force of The Orissa Offices of Village Police (Abolition) Act, 1964 Gountia right had been abolished. Further, the land had not been settled with the ancestor of the plaintiffs. The claim of the plaintiffs that they had perfected title by way of adverse possession was negatived by the courts below. In the consolidation operation, the suit land was recorded in favour of the State and accordingly, R.O.R. vide Ext.H/1 was issued in

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favour of the State. The courts below concurrently held that the plaintiffs are not in possession of the suit land.

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This Court in the case of State of Orissa and others v. Sibasankar Ray and another, 2017(suppl.-I) OLR-251, held:

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Notwithstanding the closure of consolidation operation and publication of record-of-right, the aggrieved party may institute the suit or approach the authority under Section 37 of the OCH & PFL Act. In the event a party files a suit, a prayer has to be made to set aside the record-of-right published by the consolidation authority. In absence of any prayer to set aside the record-of-right published by the consolidation authority, the simple suit for permanent injunction is not maintainable. xx xx”

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The next question crops up as to whether Gounti land is the personal property of Gountia or he ceases to have the right to hold the same on the abolition of the Orissa Offices of Village Police (Abolition) Act, 1964 ? This Court in the case of State of Orissa v. Prafulla Kumar Pradhan (dead) through L.Rs., (S.A.No.119 of 1990 disposed of on 28.3.2018), held:

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“10. In Paramananda Pradhan (supra), the question arose before a Full Bench of this Court as to whether Gounti-raiyati lands in the former State of Bamra are the personal property of the Gountia or he ceases to have the right to hold the same on abolition of the village offices. The further question arose as to whether the Civil Court has jurisdiction to entertain the suit for partition of the Gountiraiyati lands, which have been settled under Sec. 6 of the Act. On an in-depth analysis of the Revenue Laws prevailing in ex-State Bamra and the Act, the Full Bench held that the Gountia used to possess the vacant holdings of the raiyats and to remain in

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charge of those holdings until they were settled with other raiyats. He was in possession of those lands by virtue of or as incidental to his office. Such lands were called the Gounti-raiyati lands during the tenure of office of the Gountia. After abolition of the village offices, the Gountia shall cease to have the right to hold, the Gounti-raiyati lands as provided under Section 3(g) of the Act. Gounti-raiyati lands in the exState of Bamra were not the personal property of the Gountia. It was further held that the Gountiraiyati lands in the ex-State of Bamra were not the personal property of Gountia, but he was in charge of those lands by virtue of or as incidental to his office and according to the provisions of Sec. 3(g) of the Act, he ceases to have the right to hold those lands. It was further held that the Civil Court has no jurisdiction to entertain a suit for partition of the Gounti-raiyati lands.

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In Paramananda Pradhan (supra), the Full Bench distinguished earlier Full Bench decision of this Court in the case of Gajaraj Sahu v. State of Orissa, AIR 1971 Orissa 1 wherein it was held that Gounti-raiyati means raiyati lands held by the Gountia during his tenure of office and that Gountiraiyati lands are, therefore, raiyati lands. The lands involved in that case were the Gounti-raiyati lands of the district of Sambalpur governed by the Central Provinces Land Revenue Act and the question for consideration was whether such lands were raiyati lands and were freely transferable. It was held that the decision must, therefore, be read in the light of the facts of that case and is no authority on the question whether the Gounti-raiyati lands of the former State of Bamra governed by the provisions of Act 10 of 1963 are the personal property of the Gountia. The Full Bench overruled the Division Bench decision in the case of Prafulla Kumar Pradhan (supra).”

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There is no prayer to set aside the order passed by the Board of Revenue in Revision Petition No.447 of 1966 or the consolidation R.O.R. The suit land has been recorded in favour of the State in the consolidation R.O.R. In State of Kerala Vrs. M.K.Kunhikannan Nambiar, AIR 1996 SC 906, the apex Court held that even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact be effective inter parties until it is successfully avoided or challenged in higher forum. Mere use of the word "void" is not determinative of its legal impact. The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise. The apex Court held :

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An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.

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This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out

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repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects."

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Adverse possession is not a pure question of law, but a blended one of fact and law. In Karnataka Board of Wakf vs. Govt. of India and others, (2004) 10 SCC 779, the apex Court observed as under :-

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"In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.

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The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and

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establish all facts necessary to establish his adverse possession.” (Emphasis laid)

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The date of entry into the suit land has not been mentioned. Both the courts below concurrently held that the plaintiffs have not perfected title by way of adverse possession. There is no perversity in the said findings.

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In the wake of aforesaid, the appeal is dismissed since the same does not involve any substantial question of law.

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..…………...………………..

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Dr.A.K.Rath, J.

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Orissa High Court, Cuttack, The 6^th July, 2018/CRB

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Mangal Ch. Dandasena v. State

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Mangal Ch. Dandasena v. State

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