Orissa High Court
Afr Latika Kar & Others vs State Of Odisha & Others on 13 December, 2023
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 88 of 2013
[In the matter of an appeal under Section 100 of the Code
of Civil Procedure, 1908.
---------------
AFR Latika Kar & others ...... Appellants
-Versus-
State of Odisha & others ..... Respondents
Advocate(s) appeared in this case :-
_________________________________________________________
For Appellants : M/s. Sourya Sundar Das, Sr. Advocate
With M/s. K. Behera, S. Modi,
P.K. Ghosh, S.S. Pradhan, S. Pradhan &
M. Pattnaik, Advocates.
For Respondents: M/s. S. Pattanaik,
Addl. Government Advocate
__________________________________________________________
CORAM
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th
13 December, 2023
SASHIKANTA MISHRA, J. The present appeal is directed against
the judgment dated 02.02.2013 passed by learned District
Judge, Khurda in RFA No. 37 of 2008, whereby the
judgment passed by learned 2nd Additional Civil Judge (Sr.
Division), Bhubaneswar in Title Suit No. 119/440 of
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2005/1997 on 24.05.2008 was confirmed. The plaintiffs of
the said suit are the appellants before this Court.
2. For convenience, the parties are referred to as
per their respective status in the Court below.
3. The suit was originally filed by one Sankar Kar
and Gourkrushna Kar for declaration, correction of record
of right, confirmation of title and permanent injunction in
respect of the suit land.
4. The case of the plaintiffs, briefly stated, is that
one Nabakrushna Kar of village-Barabati was settled with
an area measuring Ac.5.000 dec. appertaining to Plot No.
3550 under Khata No.1118 in Mouza-Badagada as per
order dated 06.09.1934 in case No. 8/33-34 on payment of
rent. The plot is called "Chilli Pokhari". Nabakrushna died
leaving behind the plaintiffs and other children, who
possessed the same as per mutual partition among them.
During pendency of the suit, Sankar Kar died leaving
behind his widow and sons, who were substituted in his
place. It is claimed that the plaintiffs are enjoying the suit
property with right to repair and maintain the same at
their own cost by keeping the tank clean for the purpose of
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bathing, drinking, irrigation etc. and by constructing a
temporary structure over the same. The suit tank was
however, recorded in the name of the Government in G.A.
Department in current settlement as Plot No. 1680 and
1071 with a reduced area of Ac.1.135 dec. The plaintiffs
filed a revision before the Commissioner, Settlement and
Land Records bearing Revision No.815/91, but the same
was withdrawn and thereafter the suit was filed.
5. The defendants, on the other hand contested the
suit challenging its maintainability, inter alia on the
ground of limitation. It was stated that the plaintiffs have
no manner of right, title and interest over the suit land and
the G.A. Department being the lawful owner, the ROR was
rightly published in its name. In the 1988-89 settlement
ROR, a note of illegal possession by the plaintiffs was
recorded but the same is without jurisdiction and not
binding on the defendants. A case for eviction being, O.P.P.
Case No. 983 of 1999 was initiated against the plaintiff for
eviction and by order dated 31.05.2002, the Estate Officer
directed the plaintiffs to vacate the suit land. It is further
stated that the revision petition was filed after the statutory
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period of limitation and the plaintiffs having come to know
that they have no possession and title over the suit land
withdrew the same and filed the suit to grab the suit land.
6. On the above pleadings, the trial Court framed
six issues, of which Issue Nos. (iii) and (iv) being important
are as follows:
(iii) Whether the suit is barred by law of
limitation?
(iv) Whether the plaintiffs have right, title,
interest and possession over the suit land and
direction be given to the defendants to correct
the R.O.R. in respect to right of user of the
plaintiffs over the suit land?
7. Plaintiffs examined three witnesses from their
side and exhibited 24 documents. Defendants examined
one witness and marked one document as exhibit from
their side.
8. The trial Court took up Issue Nos.(iii) and (iv) for
consideration at the outset. After scanning the oral and
documentary evidence, it was of the view that the suit land
was given in favour of Nabakrushna Kar for a limited
purpose namely, to look after the tank and to clean the
same at his own cost for the purpose of use of the villagers.
As such, the claim of title by the plaintiffs over the suit
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land merits no consideration. As regards limitation, the
trial Court held that the ROR was published in the year
1988-89 but the suit was filed in the year 1997, i.e., after a
lapse of 9 years. As such, the suit is barred by limitation.
On such findings on the pivotal issues, the other issues
were also answered against the plaintiffs to the extent that
the plaintiffs having claimed possession on the basis of the
note in the ROR are deemed to have accepted the title of
the defendants and therefore, do not have a better title
than the defendants over the suit land in order to claim the
relief of injunction. On the above findings, the suit was
dismissed.
9. The plaintiff carried the matter in appeal mainly
challenging the findings of the trial Court with regard to
Issue Nos.(iii) and (iv). Learned District Judge took note of
the certified copy of the ROR in respect of the suit plot
marked Ext.1 and particularly, the entries made therein to
hold that the status of Nabakrushna was „Dafadar‟ and the
nature of the tenancy was „Dafayat‟. According to learned
District Judge, Dafayat is akin to a licence and not lease.
The disposition in favour of the plaintiff vide Ext.1 does not
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speak of settlement of land in his favour nor is a lease but
a mere conferment of right of user along with right of the
public. Learned District Judge also concurred with the
finding of the trial Court regarding limitation with reference
to Section 42 of the Orissa Survey and Settlement Act,
1958, which provides that a suit for correction of record of
rights has to be filed within a period of three years from the
date of publication of ROR. Learned District Judge held
that even assuming that the claim of the plaintiffs is based
on title, then also they having failed to prove title over the
suit land, their possession cannot be stated to have
matured into title. On such findings, the appeal was
dismissed.
10. Heard Mr. S.S. Das, learned Senior Counsel with
Mr. A. Pradhan, learned counsel for the appellants and Mr.
S. Pattanaik, learned Addl. Government Advocate for the
State.
11. Before proceeding to refer to the rival
contentions put forth by the parties, it would be proper to
mention that the present appeal has been admitted on the
following substantial questions of law.
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"(1). Whether both the courts below misdirected
themselves in holding that the suit is barred by
limitation in view of provisions under Section 42 of
the Orissa Survey and Settlement Act, 1958?
(2) Whether, in view of the fact that the plaintiffs'
claim for correction of ROR in the suit is based
upon the claim for relief of declaration and
confirmation of title, the appellate court should
have held that cause of action for filing of the suit
arose after 1989? and
(3) Whether the lower appellate court was justified
in holding that the plaintiffs were licensees and not
tenants under Ext 1?"
12. Mr. S.S. Das, learned Senior Counsel has
argued that both the Courts below have misdirected
themselves in holding the suit as one for declaration of
right, title, interest and possession of the plaintiffs. The
fact that the suit was for correction of record of right and
declaration of right of user over sabik plot No. 3551 -3553
along with permanent injunction was lost sight of by both
the courts below. The plaintiffs have also not laid any claim
of adverse possession and therefore, finding of the trial
Court in such regard is entirely wrong. The suit land was
leased out to the plaintiffs for a limited purpose on
payment of rent but the courts below misconstrued the
lease deed (Ext.1) as a licence. The law of limitation as
applied by the courts below in the case is erroneous for the
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reason that the record of right was though published in the
year 1988-89, the plaintiffs filed the suit in the year 1997
only being faced with the imminent threat of dispossession.
Moreover, the revision preferred earlier was withdrawn and
therefore, the suit cannot be treated as being barred by
limitation. According to learned Senior Counsel the term
„Dafayat‟ as per Purnachandra Odia Bhasakosh means rent
to be paid as „Jala Kara, Phala Kara‟ etc. and therefore, the
lease deed vide Ext.1 reflects grant of a permanent lease by
the ex-intermediary with some conditions attached in
conformity with Section 105 of the Transfer of Property Act.
The term „Dafayat‟ cannot convert a lease to a licence. As
per Section 105 of the T.P. Act, lease creates a right on the
lessee to enjoy the property in perpetuity, if not otherwise
expressed. Therefore, the findings of the courts below to
the contrary is entirely erroneous and a product of
misconception of the nature of the relationship between ex-
intermediary and the predecessor-in-interest of the
plaintiffs.
13. Mr. S. Pattnaik, learned State Counsel on the
other hand contends that the prayer in the plaint being for
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correction of record of right published in the year 1988-89,
the suit ought to have been filed within three years of its
publication but having been filed admittedly after lapse of
nine years, it is therefore, grossly barred by limitation. As
regards the prayer for declaration of right of user, the right
being mentioned as Dafayati in Ext.-1 cannot be held to be
a lease but is a licence. In any case, the document (Ext.1)
itself suggests the right of the public over the suit land and
therefore, the same is essentially communal in nature
without any exclusive or independent right being conferred
upon the plaintiffs. According to Mr. Pattanaik therefore,
both the courts below rightly rejected the claim of the
plaintiffs.
14. From the rival contentions noted above, it is
evident that two questions primarily fall for consideration
before this Court as reflected in the substantial questions
of law referred to earlier, (i) whether the suit is barred by
limitation. (ii) whether the disposition of the suit land
under Ext.-1 is in the nature of a lease or licence.
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15. In order to determine the issue of limitation, it
would be apposite to refer to the relief claimed in the
plaint, which is reflected hereinbelow:
"(i) Direction to defendants to correct the Record
of Right in respect of an area of Ac.5.000
decimal, corresponding to Sabik Plot No.3554
(Hal Plot No. 1680/1071) and portions of Plot
No.3550/4673 & 3550/4674, corresponding to
such Hal records to which they may co-relate.
(ii) Declaration of rights of user of the plaintiffs in
respect of Hal Plot Nos. 1070, 1072, 1116, 1117
& 1114 (part), corresponding to Sabik Plot Nos.
3551 & 3553, with noting of the same in the
Record of Right.
(iii) Permanently restraining the defendants from
invading the plaintiffs' right in respect of such
property.
Xxx xxx xxx "
16. There is no dispute that the ROR was published
in the year 1988-89 in the name of the Government in G.A.
Department with note of illegal possession by the plaintiffs.
It is claimed that a revision was filed in the year 1991 being
Revision Case No.815 of 1991 before the Commissioner,
Settlement and Land Records. It is stated that said
Revision was withdrawn on 28.08.1997. The suit was filed
a few days before i.e. on 12.08.1997. Section 42 of the
Odisha Survey and Settlement Act, 1958 reads as follows:
"42. Limitation of jurisdiction of Civil
Court. - (1) No suit shall be brought in any Civil
Digitally Signed preparation of record-of-rights or settlement of
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rent under this Act or in respect of publication,
signing or attestation of any record thereunder or
any part thereof :
Provided that any person aggrieved by
any entry in or omission from any record finally
published under Sections 6-C, 12-B or 23 in
pursuance of Section 36 may, within three years
from the date of such publication, institute a suit
for relief in a Civil Court having jurisdiction.
(2) When such Court has passed final
orders it shall notify the same to the Collector of
the district and all such alterations as may be
necessary to give effect to the orders of the said
Court shall be made in the records published as
aforesaid."
17. Therefore, ordinarily a suit for correction of
record of rights could be filed within three years from the
date of publication of ROR. Learned Senior Counsel, Mr.
Das has argued that mere entry in the record of right
neither creates nor extinguishes title in favour of any
person. A title holder continues to remain in possession of
the property despite the wrong recording because the
erroneous ROR cannot extinguish his right, title and
interest over the property nor does be become disentitled to
continue to be in possession. He has relied upon the
judgment passed by the court in the case of Basanti @
Basantirani Jena vs. State of Odisha, reported in 2016
(Supp.-1) OLR 529.
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18. This Court is however, unable to accept the
contention of learned Senior Counsel in this regard for the
reason that the ratio of the cited case would apply only
when the person concerned is actually the title holder
notwithstanding the wrong recording of the ROR. Here it
has been specifically contended that the plaintiffs are not
claiming title over the suit property but their prayer is for
correction of record of right simpliciter along with
declaration of right of user. The filing of the revision and its
subsequent withdrawal by the plaintiffs cannot have any
bearing on the present case since the suit was filed on the
same prayer i.e., correction of record of right. Both the
Courts below have held and according to this Court, rightly
so, that in so far as the relief for correction of record of
right is concerned, the suit is clearly barred by limitation
having regard to the provision under Article 58 of the
Limitation Act read with Section 42 of the Orissa Survey
and Settlement Act. This Court holds accordingly.
19. As regards the nature of disposition of the
property conveyed under Ext-1, i.e., whether it is lease or
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licence, it would be proper to refer to the document itself.
In the remarks column of Ext.-1 which purports to be
certified copy of the ROR, the name of Nabakrushna Kar is
mentioned under the tenant column with further reference
to case No. 8/1934-35. Further, the term „dafayat‟ has
been mentioned. The special remark runs as follows;
"DAFADARA BYAYARE POKHARIRA
PANKODHARA KARIBA; DAFADARA HUDA
SABU MARAMATA KARI BHALABHABARE
RAKHIBA; GRAMABASIMANE KHAIBA,
GADHOIBA O FASALA SAKASHE POKHARIRA
PANI BEBAHARA KARIPARIBE; GOMAHISADI
ETHIRE GADHOIBE NAHIN".
20. As regards the meaning of the term „Dafayat‟,
learned Senior Counsel has referred to Purnchandra Odia
Bhasakosh, which refers to „Dafayat‟- "Jala Kara, Phala
Kara, Machha Diaa, Pattu Jamira Khajana etc." On such
basis it is submitted by learned Senior Counsel that the
tenant being required to pay rent, the document is nothing
but a lease deed. Mr. S. Pattnaik, learned State Counsel on
other hand submits that dafayati is not a tenancy right but
a right to enjoy usufructs of land on payment of certain
fees. Moreover, had it been in nature of a lease no
communal right would have accrued to the general public
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over the suit land and the same would have been conferred
on the person concerned for his exclusive enjoyment. Such
is however, not the case as the expression
"GRAMABASIMANE KHAIBA, GADHOIBA O FASALA
SAKASHE POKHARIRA PANI BEBAHARA KARIPARIBE"
clearly shows the communal nature of the property
notwithstanding the responsibility cast upon Nabakrushna
Kar to maintain and repair the embankment and to desilt
the tank. Here payment of rent is nothing but payment of
fees charged for user of the property not rent as such.
21. As to whether a particular disposition is a lease
or licence, law is well settled that the crucial test is the
intention of the parties. If the intention was to create an
interest in the property it would be lease but it if did not, it
would be licence. Reference can be had in this regard to the
decision of the Apex Court in the case of Puran Singh
Sahani vs. Sundari Bhagwandas Kripalani, reported in
(1991) 2 SCC 180, wherein relying upon an earlier
judgment rendered in the case of Sohan Lal Naraindas vs.
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Laxmidas Raghunath Gadit, reported in (1971) 1 SCC 276
it was held as follows;
15. Following Sohan Lal Naraindas v. Laxmidas
Raghunath Gadit [(1971) 1 SCC 276] , we
reiterate that the intention of the parties to an
agreement has to be gathered from the terms of
the agreement construed in the context of the
surrounding, antecedent and consequent
circumstances. The crucial test would be what
the parties intended. If in fact it was intended to
create an interest in the property, it would be a
lease, if it did not, it would be a licence. In
determining whether the agreement was a lease
or licence, the test of exclusive possession,
though of significance, is not decisive. Interest for
this purpose means a right to have the
advantage accruing from the premises or a right
in the nature of property in the premises but less
than title.
16. Lease has been defined in Section 105 of the
Transfer of Property Act as under:
"105. A lease of immovable property is a
transfer of a right to enjoy such property,
made for a certain time, express or
implied, or in perpetuity, in consideration
of a price paid or promised, or of money, a
share of crops, service or any other thing
of value, to be rendered periodically or on
specified occasions to the transferor by the
transferee, who accepts the transfer on
such terms."
The essential elements of a lease are:
1. the parties
2. the subject matter, or immovable
property
3. the demise, or partial transfer
4. the term, or period
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22. Thus, the intention behind the disposition of
the property in question is to be inferred from the
surrounding facts and circumstances. Plaintiffs would
insist that the disposition was in the nature of a permanent
lease whereas the defendants insist that it was nothing but
a licence. The facts leading to initiation of the lease case,
i.e. Case No. 8/33-34 are not forthcoming from the
materials on record nor put forth before this Court by the
parties. Per force, the recitals/remarks in the documents
(Ext.1) are to be interpreted in order to ascertain the
intention of the ex-intermediary in making the disposition
in favour of the predecessor-in-interest of the plaintiffs. The
recitals have already been referred to hereinbefore. As is
evident, the predecessor-in-interest of the plaintiffs was
granted a right to enjoy the property, which is a pond, on
payment of rent but then such right of enjoyment is
qualified by the direction to desilt the pond, maintain and
repair its embankment and most importantly, it also
confers the right on the general public (villagers) to enjoy
such property by way of using the water of the pond for
bathing, cooking, washing and for irrigation purpose. So,
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the right of user that was purported to be transferred on
the predecessor-in- interest of the plaintiffs was not an
exclusive right nor such possession was exclusive and
absolute to him as others had right to use the pond too. To
such extent therefore, it cannot be said that the disposition
was in the nature of lease. Had it been an exclusive or
independent right of user on the plaintiffs‟ predecessor-in-
interest, it would certainly have qualified as a lease but in
view of what has been said hereinbefore, such is not the
case. Moreover, it cannot be said that the disposition
intended to create an exclusive interest of the plaintiffs‟
predecessor- in-interest in the property. Under such
circumstances, it can only be treated as licence to occupy
the property and for enjoyment of the usufructs but only
upon discharging certain responsibilities/duties. The so-
called rent payable therefore, has to be treated as fees for
the licence and not rent for any lease.
23. Reference can be made again to the case of
Puran Singh Sahani (supra) in this regard, wherein it was
observed as follows;
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"17. The relationship of lessor and lessee is one of
contract. In Bacon's Abridgement, a lease is
defined as "a contract between the lessor and the
lessee for the possession and profits of land, etc.,
on the one side and recompense by rent or other
consideration on the other". Hence it has been held
that "a mere demand for rent is not sufficient to
create the relationship of landlord and tenant
which is a matter of contract assented to by both
parties". When the agreement vests in the lessee a
right of possession for a certain time it operates as
a conveyance or transfer and is a lease. The
section defines a lease as a partial transfer, i.e., a
transfer of a right of enjoyment for a certain time."
24. Thus, merely because the plaintiffs claim to be
in possession for a long time and also paid rent till about
1997 cannot transform the licence granted to their
predecessor-in-interest into a lease as such possession is
not exclusive to them. The Lower Appellate Court has
examined the evidence to be convinced that mere
conferment of right of user does not make it a permanent
lease regard being had to the right of the public also in the
property.
25. In view of the discussion made above, this Court
finds itself in agreement with the reasoning adopted by the
Lower Appellate Court and is therefore, not inclined to
accept the contentions raised by learned Senior Counsel
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that the property had been leased out permanently in
favour of the predecessor-in-interest of the plaintiffs.
26. Once it is held that the disposition was a licence,
it automatically nullifies the claim of the plaintiffs for
declaration of the right of user for the reason that the
licensor has the right to annul the licence at any point of
time, which in the instant case is reflected by refusal of the
State to receive rent from the plaintiffs. Evidently, the
plaintiffs could not establish their claim over the suit
property before the settlement authorities during current
settlement operations in the manner that they claimed in
the suit nor challenged the record of rights so published
within the statutory period of limitation. Thus, there is no
way by which the relief claimed in the suit could be granted
to the plaintiffs.
27. Thus, from a conspectus of the analysis of the
facts, law and the contentions raised by the parties, this
Court is of the considered view that both the courts below
have correctly decided the lis between the parties leaving
no room whatsoever for this Court to interfere. The appeal
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must therefore, fail for the reasons indicated in detail
hereinbefore.
28. In the result, the appeal is dismissed but in the
circumstances, without any cost.
................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack
The 13th December, 2023/ A.K. Rana, P.A.
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