Orissa High Court
Hullash Dehudi @ Dehuri vs Sushama Sahoo on 8 January, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. NO.412 OF 2015
In the matter of an Appeal under Section 100 of the Code of Civil
Procedure, 1908 assailing the judgment dated 10th August 2015
passed by the learned Additional District Judge, Bhubaneswar in
R.F.A. No.60/14/62 of 2013/2009/2007 confirming the judgment and
decree dated 23.07.2007 and 09.08.2007 respectively passed by the
learned Civil Judge(Junior Division), Bhubaneswar in Title Suit
No.212 of 2000.
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Hullash Dehudi @ Dehuri .... Appellant
-versus-
Sushama Sahoo .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
================================================
For Appellant - Mr. S.K. Nanda-1 &
B. Mohapatra,
Advocates.
For Respondent - -------------------------
CORAM:
MR. JUSTICE D.DASH
Date of Hearing : 22.12.2023 :: Date of Judgment:08.01.2024
D.Dash,J. The Appellant, by filing this Appeal under Section-100 of the
Code of Civil Procedure, 1908 (for short, 'the Code'), has assailed the
judgment and decree dated 10th August 2015 passed by the learned
Additional District Judge, Bhubaneswar in R.F.A. No.60/14/62 of
2013/2009/2007.
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The Respondent as the Plaintiff had filed Title Suit No.212 of
2000 for declaration of her right, title and interest over the suit land
seeking further relief of permanent injunction. In the suit, this
Appellant has been arraigned as the sole Defendant.
The suit having been decreed, this Appellant being the
aggrieved Defendant had carried an Appeal under Section-96 of the
Code, which too has been dismissed. Hence, the present Second
Appeal is at the instance of the Appellant, who was the Defendant
and has suffered from the judgments and decrees passed by both the
Courts below.
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 Trial Court.
3. The Plaintiff's case is that the husband of the Defendant,
Nishakar Sahoo died on 16.02.2000. Nishakar Sahoo is the son of
Chintamani Sahoo, whose father was Banchhanidhi Sahoo. Nishakar
had three brothers namely, Rama Chandra Sahoo, Nilakantha Sahoo
and Debraj Sahoo. There was a partition amongst them by registered
deed dated 04.02.1959. At that time, Nishakar was a minor and in the
said partition; separate portions of joint family property were allotted
to each of the share holders. When Nishakar and Debraj became major,
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all the coparceners enjoyed their allotted land separately remaining
under separate mess in separate houses. The Plaintiff's husband was
suffering from Peptic Ulcer and mental abnormality since 1995. He
was bedridden. He being an illiterate person was only knowing to sign
in Odia and that was taken advantage of by the Defendant, who started
forcibly cultivating the suit lands on and from the year 1996. He
threatened the Plaintiff to kill if she would come over the land.
Nishakar had never sold the sold land to the Defendant nor executed
any document. On 16.02.2000, when the Plaintiff on 15.04.2002 went
over the suit land to cultivate the same, there was resistance since from
the side of the Defendant. Hence, the suit come to be filed.
4. The Defendant in his written submission has first of all raised
the question of maintainability of the suit projecting the provision
contained under section 67 of the Orissa Land Reforms Act, 1960 as
the bar for entertainment of said suit to adjudicate the dispute. The
Defendant specifically pleaded that he has been cultivating the suit
land as a 'Bhag tenant' since the year 1962. The Defendant stated that
the suit land originally belonged to Banchhanidhi, Rama Chandra,
Nilakantha, Nishakar and Debraj. It is also stated that the suit land with
other lands of the joint family of Nishakar had been partitioned as
evident from the registered deed dated 04.02.1959 and the suit land
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was allotted to Nishakar. The Defendant claims to have been inducted
by Nishar as Bhag tenant to cultivate the suit land and accordingly, he
has been in cultivating possession of the said land as a tenant which
was never disputed by Nishakar during his lifetime. The Defendant
being threatened by the Plaintiff of being dispossessed has filed an
application under section-15(b) and section -15(d) of the OLR Act
which has been numbered as OLR Case No.167 of 2000 before the
Revenue Officer-cum-Additional Tahasildar, Bhubaneswar. The
Defendant has prayed therein to declare him as Bhag tenant of
Nishakar and in view of his death under the Plaintiff which is sub-
judice.
5. The Trial Court with the above rival pleadings framed as many
as six (6) issues. In view of the admitted case of the parties with regard
to the ownership of the suit land; upon examination of evidence and
their evaluation has arrived at a conclusion that the Defendant has not
been able to establish his case that he had any point of time as a Bhag
tenant. Therefore, finding such a plea to be based on total falsehood,
the suit has been decreed.
The aggrieved Defendant having preferred First Appeal has
failed in his attempt to get the said judgment and decree passed by the
Trial Court, set at naught. Hence, the present Second Appeal.
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6. Mr. S.K. Nanda-1, learned Counsel for the Appellant submitted
that in view of the pendency of the proceeding before the forum under
the OLR Act, the Civil Court ought not to have proceeded with the suit
instead would have held the suit to be barred in view of the provision
of section-67 of the OLR Act. According to him, the Civil Court has
no jurisdiction to rule upon the fact as to if the Defendant was a Bhag
tenant under the Plaintiff's husband thereafter under the Plaintiff,
which is exclusively adjudicable by the forum prescribed under the
OLR Act. He, therefore, urged for admission of this Appeal to answer
the above as the substantial question of law.
7. Keeping in view the submissions made, I have carefully read the
judgments passed by the Courts below. I have also gone through the
plaint and written statement filed by the parties as well as the evidence,
both oral and documentary, let in by them.
8. The Defendant in his written statement has not disputed the
right, title and interest of the Plaintiff over the suit land. It is his case
that he was a Bhag tenant under the husband of the Plaintiff and on his
death, his status as such has been continuing under the Plaintiff. The
suit having been filed in the year 2000, the Defendant claims to have
filed OLR Case No.167 of 2000 before the Revenue Officer-cum-
Tahasildar, Bhubaneswar for declaration of his status as aforesaid
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under section-15(b) and 15(d) of the Act. It appears that the Defendant
has not proved any document in support of the same nor it has been
shown before the Trial Court that the said tenancy was evidenced by
any document. It is merely the bald statement of the Defendant that he
was a 'Bhag tenant' under the husband of the Plaintiff and after him
under the Plaintiff. In that view of the matter, when the Plaintiff had
filed the suit for declaration of her right, title and interest seeking
permanent injunction; the Courts below are found to have committed
no error in decreeing the suit and holding that the suit is not barred by
the provision of section-67 of the OLR Act. In a suit of this nature,
merely because the Defendant raises the plea of tenancy that itself in
the absence of any satisfactory evidence to say that such an issue is
adjudicable by the forums under the OLR Act would not suffice to
hold the suit to be barred under section-67 of the OLR Act.
The Defendant in raising the plea was under the legal obligation
to place all the evidence before the Court to arrive at a prima facie
satisfaction that he has a case in support of his claim of Bhag tenancy
in respect of the suit land so as to be adjudicated upon by the forums
prescribed under the OLR Act to the exclusion of the Civil Court.
9. In view of the aforesaid submission of the learned Counsel for
the Appellant (Defendant) cannot countenanced with to say that there
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arises any substantial question of law for being answered, meriting
admission of this Appeal surfaces. It is however observed that this
judgment and decrees passed in the Suit would not stand on the way of
the Authorities prescribed under the OLR Act to decide the dispute if
has been raised before them within the scope and purview of their
jurisdiction.
10. In the result, the Appeal stands dismissed. However, there shall
be no order as to cost.
(D. Dash),
Judge.
Narayan
