Dismissed

Srikrishna Chatinaya Nityananda Giri v. Chairman, Roman Catholic Voices, Balasore

Orissa HC7 Oct 2021RSA/60/2020

Case brief

AI extract

What is this about?

The High Court dismissed the appellant's appeal seeking reversal of a lower appellate court decision that decreed a suit for eviction as non-suited. The Court held no substantial question of law arose as the lower court correctly found the Tahasildar's order was without jurisdiction under the Orissa Estate Abolition Act due to lack of required supporting documents.

What did the court decide?

The appeal under Section 100 CPC is dismissed. No order as to cost.

Srikrishna Chatinaya Nityananda Giri Vs Chairman, Roman… — Landlord and Tenant | Orissa HC (2021)

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HIGH COURT OF ORISSA : CUTTACK RSA No.60 of 2020

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In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree dated 10.12.2019 and 21.12.2019 respectively passed by 2^nd Additional District Judge, Balasore in RFA No.43/78 of 2013/2010.

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………

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Srikrishna Chaitanya Nityananda Giri :::: Appellant.

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-:: VERSUS ::-

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Chairman, Roman Catholic Voices, Balasore :::: Respondents. Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode.

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----------------------------------------------------------------------------------------For Appellant … M/s. Samir Kumar Mishra, J. Pradhan, S. Rout, Miss P.S. Mohanty, Miss S.L. Pattnaik, Advocates For Respondents … --------------

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P R E S E N T :

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THE HON’BLE MR. JUSTICE D.DASH

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--------------------------------------------------------------------------------------- Date of Hearing: 02.09.2021 :: Date of Judgment: 07.10.2021 ---------------------------------------------------------------------------------------

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D.Dash,J . The Appellants, by filing this Appeal, under Section-100 of the

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Code of Civil Procedure (for short, ‘the Code’) has assailed the judgment and decree dated 10.12.2019 and 21.12.2019 respectively passed by 2^nd Additional District Judge, Balasore in RFA No.43/78 of 2013/2010.

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2 . By the impugned judgment and decree passed in the First Appeal filed by the Defendant No.1 & 2 under Section-96 of the Code as the

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Appellants, the judgment and decree passed by the learned Civil Judge

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(Sr. Division), Jaleswar in C.S. No.489 of 2010 (884 of 2002-I)

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decreeing the suit filed by the present Appellant as the Plaintiff have been annulled and the Appellant (Plaintiff) has been non-suited.

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3 . For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

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4 . Plaintiff’s Case:-

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The suit property described in Schedule-A is Plaintiff’s Sthitiban property and he has been in possession of the same right from the year, 1943. On 27.07.1984 by the order passed by the Competent Authority in Misc. Case No.178 of 1976, the status of the Plaintiff vis-à-vis the suit land as the ‘Settled Rayat’ has been recognized and declared by the State. The rent being fixed is paid by the Plaintiff from 1952 onwards. In the Major Settlement Operation, the Record of Right in respect of the suit land has been issued in favour of the Plaintiff and accordingly he has been paying rent to the Government and recovery.

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In the month of July, 1994, the Plaintiff had to leave for

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Rairangpur to earn his livelihood and thereafter he worked under different persons at different places. The Defendant Nos. 1 and 2 having no manner of right, title and interest over the suit property, taking advantage of the absence of the Plaintiff, falsely advanced their claim of

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possession in so far as Lot-1 of Schedule-A property is concerned. It is alleged that Defendant No.3 to 11 forcibly occupied the properties described in Lot-2, 3 and 4 respectively. The Plaintiff having come to know about this forcible occupation of the suit land by the Defendants came to visit the spot on 01.12.2002. Having found the fact to be true, when he requested Defendants to vacate the possession stating their claim as such to be baseless, they declined to do so. This has led the Plaintiff to file the suit for eviction of the Defendants from the suit property and recovery of possession by demolition of construction made by them over the suit property with further prayer for grant of permanent injunction.

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5 . Defendant Nos. 1 and 2 filing their written statement contested the suit. Defendant No.3, 4, 6 and 7 to 11 although appeared have

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chosen not to contest and thus been set ex-parte. No steps being taken for against Defendant No.5, the suit stood dismissed as against him.

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6 . In the written statement filed by the Defendant No.1 and 2; while traversing the plaint averments, it has been pleaded that the suit lands are portions of land under C.S. Plot No.520 and 788 recorded as Puruna Padia under C.S. Khata No.156 as Anabadi land. The lands are by the side of O.T. Road towards the eastern side and Rayati land of one Laxmikanta Chakrabarti as C.S. Plot No.521 under C.S. Khata No.91 measuring Ac.0.056 decimals adjoins at the West of land under C.S.

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Plot No.788 and South of land under C.S. Plot No.520. It is stated that

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Laxmikanta Chakrabarti had been possessing part of the land of C.S. Plot No.788 measuring area of Ac.0.013 decimals and part of C.S. Plot No.520 measuring an area of Ac.0.007 decimals since 25.11.1975 when he purchased the land under C.S. Plot No.521 and prior to him it was his vendor who was in possession. It is stated that in order to establish the Convent School, the Defendant No.1 purchased the land under C.S. Plot No.521 measuring an area of Ac.0.056 decimals from that Laxmikanta Chakrabarti vide two registered sale-deed dated 17.05.1985. As at that point of time, the Laxmikanta Chakrabarti was also possessing the aforesaid land measuring in total Ac.0.020 decimals appertaining to Plot No.788 and 520, he also transferred his possessory right over these lands in favour of the Defendant No.1 by another agreement dated 17.05.1985 and handed over the possession. It is said that C.S. Plot No.788 corresponds to the M.S. Plot No.1059 and 1060. Thus, the Defendant No.1 is possessing land under C.S. Plot No.521 measuring Ac.0.056 decimals which corresponds to M.S. Plot No.1058 as also the land under M.S. Plot No.1067 and M.S. Plot No.1066 on its southern side including the land under M.S. Plot No.1059 and 1060. The possession is said to be from 17.05.1985 onwards. It has been said that Defendant No.1 has also purchased part of land under C.S. Plot No.522 measuring an area of Ac.0.040 decimals adjoining C.S. Plot No.521 for the purpose of

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aforesaid Convent School from its rightful owner namely, Bijay Kumar Mohanty and others under four separate sale-deeds. Also Ac.0.030 decimals of land corresponding to M.S. Plot No.946 adjoining aforedescribed land has been purchased from RCMS, Jaleswar for running a said Convent School which has been established over the land possessed by Defendant No.1. The total campus area of the said Convent School is thus said to be Ac.1.060 decimals. The building of the School stands on the land under M.S. Plot No.1058 and 946. The passage from the O.T. Road to the School compound is the land under southern of land under Plot No.1066 and 1067. The rest northern part of the Plot bearing M.S. Plot No.1067 and Ac.0.004 decimals from the southern side of M.S. Plot No.1066 are said to be the integral part of the said Convent School compound.

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It is the case of the Defendant No.1 & 2, that they have been openly, peacefully and continuously without any interruption from any quarter have been in possession of the land since 17.05.1985 expressing their right, title and interest over the same as its owner which their Vendor Laxmikanta Chakrabarti was so possessing. It is stated that the Plaintiff at no point of time had any claim of right, title and interest over the said land nor so possessed prior to filing of the suit. The Plaintiff’s right, title, interest and possession over the suit land as claimed is denied

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and ultimately those are said to have been extinguished and getting so clothed upon Defendant No.1 and 2.

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7 . On such rival pleadings, the Trial Court in total has framed seven issues. Having taken up Issue No.7 which is the vital issue as to the Plaintiff’s claim of right, title and interest over the suit land, the evidence on record being discussed, the answer has been rendered in favour of the Plaintiff as having exclusive right, title and interest over the suit property, further holding that the Defendant No.1 and 2 have no such right over the property.

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Consequential to the said finding, further holding that the Plaintiff being in possession of the suit property has been dispossessed by the Defendant Nos.1 and 2, the Plaintiff has been held entitled to decree for recovery of possession of the subject matter of the suit. Accordingly, the suit has been decreed.

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8 . The Defendant Nos.1 and 2 having suffered from the decree had

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carried the First Appeal. The lower Appellate Court undertaking the exercise of examining the sustainability of the findings recorded by the Trial Court, in addressing the rival contentions and appreciation of the evidence at its level in the touchstone of the settled position of law holding the field, has reversed those findings rendered by the Trial Court and ultimately held that the Plaintiff has failed to prove his claim of

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right, title and interest over the suit land. Accordingly, the Plaintiff has

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been found not entitled to reliefs claimed and non-suited.

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9 . I have heard Mr. Samir Kumar Mishra, learned Counsel for the

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Appellant in the matter of admission of this Appeal.

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Keeping in view the submissions made, the judgment passed by

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the Courts below have been carefully gone through and the evidence on record have been perused.

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10 . Learned counsel for the Appellant submitted that the Lower Appellate Court has failed to appreciate the legal impact of the documentary evidence that is Exts.3 and Ext.4 series, which clearly establish the Plaintiff’s right, title, interest and possession over the suit property. It was submitted that the conclusion arrived by the Lower Appellate Court that the Plaintiff’s has not derived any right, title and interest by virtue of Ext.3 is unsustainable in the eye of law and when the Defendant Nos. 1 and 2 have not led any evidence to counter the said documentary and oral evidence placed from the side of the Plaintiff, the Lower Appellate Court has erred both on fact and law by upsetting the judgment and decree passed by the Trial Court in favour of the Plaintiff. According to him, above are the substantial questions of law which surface here for being answered. He accordingly urged for admission of this Appeal for answering said substantial questions of law.

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11 . The case of the Plaintiff that he has the right, title and interest as

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also having the possession of the suit land is founded upon an order passed by the Tahasildar, Jaleswar in Misc. Case No.1781 of 1976. The said order has been admitted in evidence and marked Ext.3. The sole question stands as to whether said order passed by the Tahasildar, Jaleswar in Misc. Case No.1781 of 1976 marked Ext.3 can be taken to have conferred the Plaintiff with valid right, title and interest in respect of the suit land. It is stated by the Defendants that said Tahasildar had no jurisdiction to pass such an order under Section-8(1) of the Orissa Estate Abolition Act (for short, ‘the OEA Act’) on an application by any party in the absence of any document with regard to induction of tenancy and submission of Rafa or Ekpadia or Rent Roll by the Quondam Proprietor or Ex-Intermediary and opening of Tenancy Ledger in the name of the tenant.

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The suit being one for declaration of right, title, interest and recovery of possession, it is for the Plaintiff to establish his claim over the property in order to succeed therein and the failure of the Defendants to establish their case / claim would in no way enure to the benefit of the Plaintiff in succeeding or getting the claimed reliefs therein; he has either to stand or fall on his own.

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12 . The order i.e. Ext.-3 is seen to have been passed on the basis of the Amalnama Patta of the year, 1943 said to have been executed by Quondam Proprietor/ Ex-Intermediary of the suit land.

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This is an order in favour of the Plaintiff. But as it appears, no such document in support of the claim of the Plaintiff therein had been brought on record. When it reveals that the order has been passed under Section-8(1) of the OEA Act upon an application of the Plaintiff, the very provision so quoted does not contemplate any such application for being filed for settlement of the land and as to be taken cognizance of for any purpose whatsoever. The provision is a deeming one and the person who has been in cultivating possession of the land being so inducted as tenant by the Quondam Proprietor/ Ex-Intermediary is deemed to continue as tenant under the State Government on abolition of intermediary interest by virtue of the notification upon operation of the provisions of OEA Act. The order in Misc. Case No.1781 of 1976 vide Ext.3 having been initiated upon an application being made by the Plaintiff and accordingly disposed of, there is no other option but to say that it is not at all in conformity with law and the order there upon is

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without jurisdiction and as such is nonest in the eye of law whose invalidity can be set up and as such looked into in any proceeding where it is held as the triumph card; even in any collateral proceeding or where it is pressed into service as the case may be.

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The provision of Section-8(1) of the OEA Act is meant to protect the actual tiller of the soil who is in cultivating possession of the land in question by directly deeming him to be a tenant under the State; provided there stands the satisfaction that said person is in possession as on the date of publication of the vesting notification so that when the vesting takes place by statutory provision pursuant to the notification as required, free from all encumbrances, he comes as a tenant directly under the State. There is no provision under the OEA Act to settle the land with Rayati status or with any status in favour of a tenant.

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The lower Appellate Court referring to the several decisions of this Court as well as Hon’ble Apex Court as noted in the judgment which are not felt necessary to be reproduced in loading this judgment, has concluded that the order passed in Misc. Case No.1781 of 1976 under Ext.3 has not been passed in consonance with the settled position of law. The conclusion has been that there being no material on record that Plaintiff having been inducted as tenant in respect of suit land by the Quondam Proprietor / Ex-Intermediary and nothing when is shown from the record that he was to be in cultivating possession of the suit land as the tiller thereof and continuing as such as the date of vesting, he is not entitled to the protection available under Section-8(1) of the Act which would not come to his rescue at all. In the above state of affairs, the lower Appellate Court having said that the Plaintiff has accrued no

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right, title and interest over the suit land by virtue of Ext.3; this Court finds no such reason or justification to take a view to the contrary. It is thus seen that above important aspect directly impacting the suit as laid having been totally lost sight of by the Trial Court, the lower Appellate Court has rightly rectified the grave error committed by the Trial Court in decreeing the suit. The lower Appellate Court having said so thus when has rightly dismissed the suit; this Court finds no force in the submission of learned counsel for the Appellant to upset the same.

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13 . For all the aforesaid, this Court finds that no substantial question of law surfaces in the present case meriting admission of this Appeal.

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14 . Accordingly, the RSA is dismissed. No order as to cost.

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(D. Dash), Judge. Narayan

Srikrishna Chatinaya Nityananda Giri v. Chairman, Roman Catholic Voices, Balasore

Case brief

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Srikrishna Chatinaya Nityananda Giri v. Chairman, Roman Catholic Voices, Balasore

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