Dismissed

Lekru Majhi v. State

Orissa HC22 Feb 2021RSA/35/2002

Case brief

AI extract

What is this about?

This appeal challenges the dismissal of a title suit regarding a suit tank. The court held that since a Consolidation Record of Rights under the Consolidation Act had already been published in the name of the Government and was never assailed, Section 51 bars the civil suit. Relying on precedent, the court rejected the claim of title based on the original excavation.

What did the court decide?

The appeal was dismissed as devoid of merit, finding no infirmity in the impugned judgment and decree.

Lekru Majhi Vs State — Partition | Orissa HC (2021)

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R.S.A. No.35 of 2002

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22.02.2021 Heard Mr. Maheswar Mohanty, learned counsel for the appellants and Mr. Arun Kumar Mishra, learned Additional Government Advocate for the State-opposite party nos.1 to 4.

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The appellants in this appeal under Section 100 CPC pray for setting aside the judgment and decree dated 08.04.2002 and 16.04.2002 respectively passed by learned Additional District Judge, Sonepur in Title Appeal No.14 of 2001 confirming the judgment and decree dated 19.03.2001 and 04.04.2001 respectively passed by learned Civil Judge (Senior Division), Sonepur in T.S. No.76 of 1996, whereby he dismissed the suit.

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Before delving into the substantial question of law involved in this appeal, a short narration of facts is necessary for proper adjudication.

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The plaintiffs-appellants filed T.S.No.76 of 1996 with the following prayer:

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“Hence it is prayed that, decreeing the suit of the plaintiffs:-

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1. The suit tank kindly be declared to be the exclusive property of the plaintiffs and not of the defendants.

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2. Declaring the preparation of 4^th settlement R.O.R. Khata No.3, Plot No.460, 489,490 and consolidation Holding No.488, Plot No.502, 503, 520, 521 prepared in the name of defendants No.1 illegal and wrong. The exclusive right, title and interest of the plaintiffs over the suit tank be kindly declared and possession of the plaintiffs including right of irrigation be confirmed.

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3. If the plaintiffs are found to be dispossessed then, the possession of the plaintiffs be recovered, through proper process.

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4. The defendants be permanently injuncted from taking any step to disposses the plaintiffs from the suit tanks.

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5. Any other relief which the court deems fit be declared in favor of the plaintiffs.”

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The plaintiffs-appellants in the plaint claimed that their common ancestor, namely, Srimat Giuntia had excavated and maintained Badkata and Nimuhiband (the suit tank). After his death, the plaintiffs stepped into his shoes and thus, claimed right, title and interest over the suit tank. Fourth Settlement R.O.R. in respect of the suit tank was published in the name of Government (Ext.3) under Holding No.3 and subsequently, Consolidation R.O.R. of the suit tank in Holding No.488 (Ext.4) was also published in Government Khata. Both the courts relying upon the case law in the case of Sadananda Sa & others –v-Commissioner of Consolidation, Orissa, Cuttack ; reported in 1984(I) OLR-567 and Biranchi Kumar Nayak and others –v- Collector & District Magistrate ; reported in VOL-32 (1990) OJD 289 (Civil) held that the person, who excavated and maintained the tank cannot claim any right, title and interest of the suit tank on such basis. It is also observed that since consolidation R.O.R. has already been published under Section 22 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short ‘the Consolidation Act’), the suit for declaration of right, title and interest in respect of the suit tank is not

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maintainable in view of bar under Section 51 of the said Act.

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Mr. Mohanty, learned counsel for the appellants, however, assails the judgment and decree on the following substantial questions of law, which are as follows:-

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( a) Whether both the courts below have misread and misinterpreted the Bhumibidhi of Sonepur Fiudetary State where specifically at Chapter-VI, Rule 42(Kha), the excavator of the Tank have been given exclusive right, title and interest over the tank?

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(b) Whether non-filing of W.S. by defendant nos.1 to 4 and admission of excavation of Tank in W.S. of defendant no.5 supports the case of the plaintiffs?

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(C) Whether an additional issue to the effect that the plaintiffs have got right, title and interest over the suit tank in view of Bhumibidhi law of Sonepur Fiudetary State with effect from 1907 A.D., should be framed and the matter should remitted back to learned trial court for fresh adjudication?

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In course of hearing, Mr. Mohanty, learned counsel for the appellants referred to the aforesaid provision of the Bhumibidhi of Sonepur Fiudetary State (for short, ‘Sonepur Bhumibidhi’) stated in Ground (a) and contended that none of the courts below have considered this material aspect. Thus, the matter requires consideration by this Court.

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Mr. Mishra, learned Additional Government Advocate for the State, on the other hand, submits that since the suit tank has already been recorded in Government Khata in Consolidation R.O.R. under Ext.4

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and the said R.O.R. has reached its finality, the suit for declaration is not maintainable. He further submits that Section 51 of the Consolidation Act bars a suit for declaration of right, title and interest in respect of which, the consolidation R.O.R. under Section 22 of the Consolidation Act has already been published as the parties have adequate remedy under the said Act to assail the consolidation R.O.R. Since the consolidation R.O.R. has never been challenged in the competent court of law, the suit is not maintainable as has been rightly held by the courts below.

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Heard learned counsel for the parties and perused the materials available on record.

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In view of Section 51 of the Consolidation Act, the prayer for right, title and interest in respect of the suit tank cannot be entertained inasmuch as the consolidation R.O.R. under Section 22 of the Consolidation Act in respect of the suit tank has already been published in the name of Government and the same was never assailed in any competent court of law under the provisions of the said Act. The consolidation R.O.R. is a document of title. The civil court does not have any jurisdiction to sit over the same. The plaintiffs-appellants had adequate and efficacious remedy under the Consolidation Act to assail the said Consolidation R.O.R, which was not availed of.

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Further, the appellants claim title over the suit tank on the ground that their ancestor, namely, Srimat

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Gountia had excavated the said suit tank and maintained the same. Thus, they have acquired title by virtue of operation of provision of Rule 42(Kha) of Chapter-VI of Sonepur Bhumibidhi. This issue has already been answered in the negative in the case of Sadananda Sa (supra) and Biranchi Kumar Nayak (supra), which has been considered by learned trial as well as appellate Courts.

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In that view of the matter, there is no substantial question of law to be adjudicated in this appeal.

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As such, I find no infirmity in the impugned judgment and decree. Accordingly, this appeal being devoid of any merit stands dismissed.

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Urgent certified copy of this order be granted on proper application.

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....……..……………………

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K.R. MOHAPATRA,J.

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