Sovalata Behera @ Dei & Another vs Gangadhar Moharana
2021 Latest Caselaw 11318 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK
                        R.S.A. No.263 of 2013
In the matter of an appeal under section 100 of the Code of Civil
Procedure assailing the judgment and decree dated 06.04.2013 and
18.04.2014 respectively passed by the learned District Judge,
Kendrapara in R.F.A. No.36 of 2010 setting aside the judgment dated
07.12.2010 passed by the learned Civil Judge, Junior Division,
Kendrapra in Civil Suit (I) No.99 of 2003.

     Sovalata Behera @ Dei & Another       ....           Appellants

                                -versus-

     Gangadhar Moharana                    ....           Respondent

Appeared in this case by Hybrid Arrangement Arrangement (Virtual/Physical Mode):

      For Appellants     -      Mr.R.K. Mohanty, Sr. Advocate
                                D.M. Mohanty, S. Mohanty,
                                A. Mohanty and S.N. Biswal
       For Respondent -        Mr.T.K. Mishra, S.K.Nanda-1,
                               N. Swain and K.S. Sahoo
                               For Respondent No.1
                               Mr.T.R.Mohanty
                               For Respondents 2 to 5
CORAM:
MR. JUSTICE D.DASH
           Date of Hearing & Judgment :05.11.2021
D. Dash, J

1. The Appellants, by filing this Appeal under Section 100 of the Civil Procedure Code (for short, 'the Code') have assailed the judgment and decree dated 06.04.2013 and 18.04.2014 respectively passed by the learned District Judge, Kendrapara in R.F.A. No.36 of 2010.

By the said judgment and decree, the Appeal filed by the unsuccessful Plaintiff, under section 96 of the Code, has been allowed

and the right, title and interest and possession of the Plaintiffs have been declared whereby the present Appellants (Defendants) have been permanently restrained from entering upon the suit land and dispossess the Original Plaintiff, the predecessor-in-interest of these Respondents in demolishing his residential house and cowshed standing over it. With such declaration and injunction, the following however has been further indicated in the order:

"the prayer to declare the order dated 30.06.2001 passed in OLR Misc. Case No.6 of 1996 by Sub-Collector, Kendrapara as invalid is partly allowed."

2. 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 Suit.

It may be mentioned here that these Appellants were the Defendant Nos. 2 and 4 and the Defendant No. 4 is the mother of Defendant Nos. 2 and 3.

3. The Plaintiff's case, in short, is that he is in possession of the land since the time of his ancestors to the knowledge of the Defendants and others in the village as the settled rayat. His father used to pay municipality tax, electricity dues etc in respect of the house over the suit land and after him, he is paying the same by obtaining the receipt thereof. In the year 1999, due to super cyclone, the house got raised to the ground and for the same, the Plaintiff had received the compensation. It is the further case of the Plaintiff that being in continuous possession of the suit land to the knowledge of the Defendants and general public for more than the statutory period, he has acquired title over the suit land by way of adverse possession. Considering this aspect, the Tahasildar had declared him to be the settled Rayat in a proceeding under section 9 of the Orissa

Land Reforms Act (hereinafter called as 'the OLR Act') in OLR Case No.62 of 1988 vide order dated 27.05.1989, which has, however, been illegally reviewed.

It is stated that the Defendant No.1 being a shrewd man of the locality, filed a Suit bearing T.S. No.173 of 2001 claiming therein to have purchased the suit land from Defendant No.4 on 20.01.1984. This Plaintiff, being arraigned as a party in the said Suit, had advanced his claim over the suit property saying that the same had been recorded in the name of his ancestors in the settlement ROR of 1930 and that accordingly, the claim had also been made before the Settlement Authority. The record being prepared by the Settlement Authority, in so far as the possession of the suit land of the Plaintiff is concerned, rightly there has been noting to that effect in the remarks column of said record of right. The Plaintiff being a settled rayat having occupancy right over the suit land is possessing the same having his residential house over it. The Defendant No.1 being clever then, however, did not pursue the Suit. It is further stated that Defendant No.1 then setting up the Defendants 2 and 3 initiated a proceeding under section 23 of the OLR Act against him and others which stood numbered as OLR Case No.6 of 1996. It is alleged that without proper notice to the Plaintiff, that proceeding has been finalized in favour of Defendants 2 and 3. Having said all these above, projecting that order passed by the competent Authority in OLR Case No.6 of 1996 to have placed the right of occupancy of the Plaintiff over the suit land under thick cloud and to have triggered the Defendants, in proceeding with their illegal move to dispossess the Plaintiff from the suit land, the Plaintiff has filed the Suit for the following reliefs:-

"(a) the suit be decreed in favour of the Plaintiff as against the Defendants with cost;

(b) the occupancy right of the Plaintiff in respect of the suit land be declared;

(c) the order of S.D.O/Sub-Collector, Kendrapara in O.L.R. Lease (A)6/96 dated 30.006.2001 be set aside and be declared as illegal and null and void and without jurisdiction; and

(d) the defendants be permanently restrained to dispossess the Plaintiff from the suit land and to demolish the residential house, cowshed etc. of the plaintiff standing on the suit land."

4. The Defendant Nos. 2 and 4, while traversing the plaint averments, have pleaded that the Defendant No.4 is the bona fide purchaser from the legal heirs of the recorded tenant, Damodar Kar, through registered sale deed dated 17.03.1979 (Ext.B) and she had taken the delivery of possession of the suit land and was in possession of the same. Although, she had sold the property to Digambar and Pravat Ranjan, minor sons of Nikunja by regd. sale deed dated 29.04.1981, but as there was no permission, the property was reconveyed to her by registered sale-deed dated 20.11.1982 and she thus continued to possess the said land. The Defendant Nos.2 to 4 belong to Scheduled Caste Community. They state that the Defendant Nos. 2 and 3 being the daughters of Defendant No.4 are in possession, since 1979. It is also stated that the Defendant No.1 being a shrewd person, had managed to obtain another registered sale deed on 20.01.1984. So on 30.06.2001, the OLR Case No.6 of 1996 under section 23 of the OLR Act has been disposed of declaring that sale deed dated 20.01.1984 as invalid and therein the possession of the Plaintiff has been held to be illegal and direction has been given for restoration of possession of the suit land in favour of Defendant Nos. 2 and 4. The Defendant No.1 and his two brothers having preferred an Appeal vide OLR Appeal No.1 of 2001 have ultimately chosen not to pursue the same. It is further stated that the forcible possession of the suit land even if had

been made in favour of the Plaintiff, the same cannot extinguish the right of Defendant No.4 nor any right has accrued in favour of the Plaintiff. The provision of Section 67 of the OLR Act has been projected as the bar for entertaining the Suit.

5. The Trial Court has dismissed the Suit on the following the findings:-

"(a) the Plaintiff cannot maintain a case for declaration of his occupancy right as only rights of usufructs were available in favour of the ancestors of the Plaintiff;

(b) the Defendant No.4 is a member of Schedule Caste community and the Plaintiff has failed to establish the case of acquisition of title over the suit land by way of adverse possession having remained in possession for more than thirty years by fulfilling all the required ingredients. So, the claim by the Plaintiff that he has perfected title by way of adverse possession has no leg to stand and accordingly, the relief of occupancy right is also not allowable."

With the above findings, the Trial Court has held that the Plaintiff is not entitled to the reliefs claimed in the Suit.

6. The First Appellate Court being moved in an Appeal under section 96 of the Code filed by the unsuccessful Plaintiff, has recorded the findings as under:-

(i) suit property is the self-acquired property of Defendant Nos.4 and 6 and thus there is no impediment for Defendants 2 and 3 to file an application under section 23 of the OLR Act being the daughters of Defendant No.4, belonging to Scheduled Caste community.

(ii) the possession of the Plaintiff over the Suit land cannot be treated as that of a trespasser. So the provision contained in Section 23(1) of the OLR Act is not attracted. The order dated 30.06.2001 is invalid and so also the consequential action of correction of record of right. There is no evidence to come to a conclusion that the Plaintiff was a

tenure holder in respect of the suit land disbelieving the claim of occupancy right. The Plaintiff having remained in possession for more than 12 years with effect from 03.02.1986 over the suit land has perfected title by way of adverse possession.

Arriving at all these above conclusions, the First Appellate Court, while allowing the Appeal has granted the reliefs as stated in the foregoing paragraphs.

7. Mr. R.K.Mohanty, learned Senior Counsel for the Appellants (Defendant Nos. 2 and 4) submits that the First Appellate Court has committed error both on fact and law in annulling the sound judgment rendered by the Trial Court, based upon the just and proper appreciation evidence of record being tested within the four corners of law as also applying the settled position of law holding the field. He submits that the Competent Authorities under the OLR Act having passed the order in a proceeding under section 23 of the OLR Act, the Civil Court ought not to have entertained the Suit as the parameters for entertainment of the Suit as laid down by this Court in case of "Mangulu jal & Others -V- Bhagaban Rai & others"; AIR 1975 Orissa 219 (FB) and other subsequent decisions following the same are not attracted. He submits that when no such procedural irregularities have been shown and it is also not shown that the Authorities have acted or passed the order in the proceeding in gross violation of the provision of the Act, the First Appellate Court ought not to have disturbed the finding of the Trial Court as to the maintainability of the Suit as laid and for the reliefs claimed as held been held against the Plaintiff.

8. Mr.T.Mishra, learned Counsel for the Respondent No.1 (Plaintiff) submits all in favour of the conclusions arrived at by the First Appellate

Court. He submits that on detail analysis of the provision of law touching the factual aspects concerning the land in question, the First Appellate Court has rightly held the Competent Authority to be having no jurisdiction to pass such an order as the very proceeding before it in facts and circumstances, was not entertainable in the eye of law. He thus submits that the First Appellate court has not fallen in error by annulling the findings of the Trial Court. According to him, the Suit being squarely maintainable, the reliefs as are allowable have been granted by the First Appellate Court. It is, therefore, submitted that the substantial questions of law formulated must receive their answers in favour of the dismissal of the Appeal.

9. In order to address the rival submission and answer the substantial questions of law, it would be apposite to take note of the conclusions arrived at the First Appellate Court.

Issue No.7 here concerns with the legality and validity of the order passed by the Competent Authority in OLR Case No.6 of 1996. Firstly, it has been said that the daughters of Defendant No.4, i.e, Defendant Nos.2 and 3 were competent to file such application under the OLR Act. It has next rejected the contention of the Plaintiff that Defendant No.4 did not belong to Scheduled Caste community. Coming to the contention raised by the Plaintiff that the Competent Authority, under the OLR Act, had not jurisdiction under section 23(1) of the OLR Act to evict him from the suit land as he is neither a vendee nor was possessing the suit land as vendee, the followings as extracted from the judgment has been said:-

"In the instant case, the Plaintiff is not claiming the suit land on the strength of purchase from a member of Schedule Caste, i.e, Defendant No.4. The Plaintiff claiming to be in possession of the suit land as a raiyat or at best his possession

can be treated as 'tresspasser'. So section 23(1) of OLR Act is not applicable against the Plaintiff."

Having said so, it has been held that the Competent Authority having taken action under section 23(1) of the OLR Act, could not have treated the application also to be one under section 23(A) of the OLR Act. Accordingly, being of the view that the Competent Authority by directing eviction of the Plaintiff from the suit land by an order in a proceeding under section 23(1) of the OLR Act has exercised the jurisdiction not vested on him by law and as such said part of the order is not sustainable in law; the direction of eviction of the Plaintiff from the suit land as unauthorized occupant and for restoration of the possession of the suit land in favour of Defendant Nos.2 to 4 as well as consequential action taken by the Tahasildar in mutating the suit land in favour of Defendant Nos.2 to 3 have all been held to be invalid and thus not to be so acted upon.

Then going to examine the claim of the Plaintiff of having the occupancy right over the suit land, the same however has not been found in favour of the Plaintiff. Proceeding to find out if there has been acquisition of title over the suit land by the Plaintiff by adverse possession, it has been said as under:-

"Hence, 12 years adverse possession against Defendant No.1 and his two brothers is sufficient for acquisition of the prescriptive title by the Plaintiff in respect of the suit land."

(extracted from the judgment)

10. Section 23 of the OLR Act reads that if any transfer is in contravention of the provision of section 22(1), an Revenue Officer on his own information or on the application of any person interested in the land may issue notice to parties and call upon to show cause why the

transfer should not be declared invalid. As provided in section 67 of the OLR Act, the Civil Court has no jurisdiction to entertain any Suit or proceeding in so far as it relates to any matter which the Officer or other Competent Authority is empowered by or under the said Act to decide.

In that OLR Case No.6 of 1996, the Plaintiff being arraigned as a party, i.e., Opposite Party No.4 had been noticed and appeared through counsel. Thereafter again in the Appeal, having appeared has chosen not to pursue the same.

The Plaintiff having filed the writ application, i.e, W.P.(C) No.12460 of 2004, the same has been disposed of with a direction that the orders passed by the OLR Authority would be subject to the result of the Suit filed by the Plaintiff seeking declaration that those orders are void and inoperative. The Writ Appeal, i.e, W.A. No.64 of 2005, being filed by the Plaintiff has yielded no such result.

11. The Competent Authority, under the OLR Act in that proceeding under section 23 of the said Act, has passed an order holding that the Plaintiff is in unauthorized occupation of the case land belonging to the Defendant No.4, after having said that the so-called transfer of the suit land made by Defendant No.4 in favour of Defendant No. 1 is invalid having been made in contravention of the provisions of section 22 of the OLR Act. As it appears, Section 23(A) of the OLR Act has come to be introduced by way of Amendment vide Amendment Act No.44 of 1976. The provision was introduced to provide the relief to the members of Scheduled Caste and Scheduled Tribe as against those persons, who have remained in unauthorized occupation of their properties by way of trespass or otherwise. The First Appellate court has taken a view that having initiated a proceeding under section 23 of the OLR Act, the Competent Authority could not have passed an order as against the

Plaintiff. At this juncture, if we look at the case of the Plaintiff, it would appear that he is saying to be in possession of the suit land from the time of his ancestors and to have acquired the right of occupancy; further he claimed to have acquired the title/occupancy right by way of adverse possession.

Here, in the proceeding before the Competent Authority under the OLR Act, the Defendant No.1 and his two brothers as well as the Plaintiff were the parties. The Competent Authority, while declaring the transaction in favour of the Defendant No.1 and his two brothers as invalid finding the land to be in unauthorized possession of the Plaintiff, has directed for eviction and restoration of the possession of the suit land in favour of the Defendant Nos.2 and 4. The Competent Authority had the jurisdiction to sit over a proceeding under section 23 as well as the proceeding under section 23(A) of the OLR Act. The Plaintiff being a party in that proceeding having appeared had never raised the question of mis-joinder of cause of action or mis-joinder of parties. Here, the facts and circumstances of the case clearly show that the Competent Authority was approached by the Defendant Nos. 2 and 3 to declare the sale deed in favour of Defendant No.1 as void with further relief of recovery of possession of the suit land from the Plaintiff. Thus, no such fault can be found with the order of the Competent Authority in passing the final order granting the reliefs as to declaration of the sale deed as void as also regarding restoration of the possession of the suit land. The conclusion of the First Appellate court that the Revenue Officer by directing the eviction of the Plaintiff from the suit land in a proceeding under section 23 (1) of the OLR Act has exercised the jurisdiction not vested on him by law and as such the said part of the order as unsustainable, is wholly erroneous and in my considered view is liable to be set at naught.

12. This Court, in the case of Mangulu jal & Others (Supra), has laid down the parameters as to when can the Civil Court have the jurisdiction to examine such matters despites the bar contained in the special statute. In fact, in the instant case, neither any such stand in specific has been taken by the Plaintiff nor any evidence has been let in to bring the matter under consideration within the jurisdiction of the Civil Court touching any of the parameters laid down in the Full Bench decision. This court also on going the orders passed by the Competent Authority and the Appellate Authority in the OLR proceeding as also in the Appeal arising therefrom does not find any material as indicative of non-compliance of the provisions of the OLR Act or to say that the Competent Authorities have not acted in conformity with the fundamental principles of judicial procedure. This Court is thus of the view that the Civil Court's jurisdiction in sitting over the orders passed by in OLR Case No.6 of 1996 and OLR Appeal No.01 of 2001 is clearly ousted.

13. The next view taken by the First Appellate Court runs as follows:-

"88.The uninterrupted adverse possession of the suit land by the plaintiff continued with hostile animus with the knowledge of title hold i.e, Defendant No.1 and his two brothers form 3.2.1986 till 30.06.2001. It is material to note here that by the time the OLR order was passed on 30.06.2000 invalidating the sale deed executed by the Defendant No.4 in favour of Defendant No.1 and his two brothers, the title of the suit land has already been passed in favour of the Plaintiff by way of adverse possession as the plaintiff having not title remained in possession of the suit house for a period of twelve years from 3.2.1986 i.e. the date of final order passed in appeal case no.1432 of 1984.

Hence the title of the suit property was not with the Defendant No.1 and his two brothers by that time to be passed in favour of the Defendant No.4. The owner not only lost the remedy but also his title in the suit house under section 65 of the Limitation Act. The possession of the

Plaintiff over the suit house in the instant case was actual, visible, exclusive, hostile and continued over the statutory period." (Extracted from the judgment) A bare reading of the aforesaid para would go to show that the approach to appreciate the contention in this regard is wholly faulty and erroneous and in a confusing manner, the matter has been dealt. Be that as it may, when it has already been held that the Civil Court has no jurisdiction to sit over the order passed by the competent Authority under the provision of OLR Act declaring the so-called sale deed executed by the Defendant No.2 in favour of Defendant No.1 as void and in operative and that the Plaintiff being in unauthorized occupation is liable to give up the possession of the suit land practically, there arises no further need to examine in detail in ruling upon the claim of the Plaintiff as to acquisition of occupancy right/title by way of adverse possession. Therefore, the view of the First Appellate Court that the Plaintiff's possession over the suit house is actual, visible, exclusive, hostile and continued over the statutory period is of no such legal significance in the present Suit.

The aforesaid discussion and reasons accordingly provide answers to the substantial questions of law against the case/claim of the Plaintiff in ultimately, concluding that the suit for the reliefs claimed is not entertainable in the eye of law and as such the reliefs prayed for are not allowable.

Accordingly, the judgment and decree passed by the Trial Court dismissing the Suit are hereby restored and those returned by the First Appellate Court stand annulled. Thus, the Suit filed by the Plaintiff stands dismissed.

14. In the net result, the Appeal stands allowed. In the peculiar facts and circumstances of the case, the Parties are directed to bear their respective cost all throughout.

(D. Dash) Judge

Basu