Orissa High Court
Madhusudan Sahu (Since Dead) & vs State Of Orissa on 7 May, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
SA No.393 of 2000
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Madhusudan Sahu (since dead) & .... Appellants
Others
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - Mr. G. Mukherji, Senior Advocate
assisted by Mr. A. Mishra, Advocate.
For Respondent - Mr. A.R. Dash, AGA.
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :19.02.2024:: Date of Judgment :07.05.2024
A.C. Behera, J. This 2nd Appeal has been preferred against the reversing
Judgment.
2. The predecessor of the appellant Nos.1(a) to 1(d) i.e. Madhusudan
Sahu was the sole plaintiff before the trial court in the suit vide O.S.
No.17 of 1983-I and he was the respondent before the 1st Appellate Court
in the 1st Appeal vide T.A. No.18 of 1994.
{{ 2 }}
The respondent-State of this 2nd Appeal was the sole defendant
before the trial court in the suit vide T.S. No.17 of 1983-I and it was the
appellant before the 1st Appellate Court in the 1st Appeal vide T.A. No.18
of 1994.
The suit of the plaintiff (Madhusudan Sahu) vide O.S. No.17 of
1983-I was a suit for permanent injunction.
3. The suit property is Ac.0.460 decimals i.e. Sabik plot No.441 under
Sabik Khata No.71 in Mouza Kundheibenta Sahi inside Puri Town at
present Mouza-Jhadeswari in the district of Puri corresponding to Hal
M.S Plot No.334 and M.S plot No.342, under Hal M.S Khata No.119.
As per the averments made in the plaint of the plaintiff, the suit
properties were originally belonged to Dakhinaparswa Math and the same
were the amrutmanohi properties of Lord Jagannath. The Mahant of
Dakhin Parswa math i.e. Shri Jagannath Ramanuj Das was the marfatdar
of Dakhin Parswamath in respect of the suit properties. The suit
properties were lying fellow. So, for the benefit of the math, the then
Mahnt Sri Jagannath Ramanuj Das inducted to the father of the plaintiff
i.e Baidyanath Sahu as a tenant of the suit properties for horticultural
purposes. The said tenancy of the father of the plaintiff over the suit
properties was created through execution of a lease deed dated
{{ 3 }}
10.10.1938 with delivery of possession and acceptance of rent from the
father of the plaintiff i.e. Baidyanath Sahu. Since, the creation of such
tenancy i.e. since 10.10.1938, the father of the plaintiff i.e. Baidyanath
Sahu became an occupancy tenant in respect of the suit properties and
planted several trees such as cashew and casuarina and converted the suit
properties into a horticultural garden. Accordingly, the father of the
plaintiff i.e. Baidyanath Sahu was paying rent of the suit properties to the
Dakhinaparswa Math and he was obtaining the rent receipts. But, in
course of time, the trees in the suit properties were cut and after the death
of the father of the plaintiff i.e. after the death of Baidyanath Sahu, the
plaintiff being the successor of his father, he (plaintiff) possessed the suit
properties like his father and paid the rent of the same. As the suit
properties were under the Ex-intermediary estate, then after the abolition
of Ex-intermediary system, the suit properties vested with the
Government on 18.03.1974 free from all encumbrances and thereafter,
the tenancy of the plaintiff over the suit properties was acknowledged by
the State of Orissa i.e. by the defendant and accordingly the plaintiff paid
rent of the suit properties to the defendant (State of Orissa) as per Order
dated 04.01.1982 passed in O.E.A Misc. Case No.276 of 1981.
{{ 4 }}
During Hal Settlement, the plaintiff applied before the settlement
authorities by filing an objection case to record the suit properties in his
name and that objection case was decided by the settlement authorities in
his favour and a draft Khatian was issued in his favour for recording the
suit properties in his name. As such, he (plaintiff) had/has been
continuing his possession over the suit properties since the time of his
father i.e. since 10.10.1938 to the knowledge of everybody including the
defendant State. The suit properties are situated near the reserve police
line, Puri. As, no permanent boundary wall was there around the suit
properties, for which, the plaintiff wanted to raise boundary wall around
the same. So, the plaintiff engaged some labourers and masons to
construct boundary wall around the suit properties. But, suddenly on
04.09.1982, the Revenue Inspector came to the suit properties and
prevented the labourers of the plaintiff from putting pillars for boundary
wall and arrested the labourers of the plaintiff with the help of the town
police.
Therefore, in order to file the suit against the defendant in respect
of the suit properties for the relief of injunction, he (plaintiff) issued a
statutory notice under Section 80 (1) of the CPC to the State (defendant)
through his Advocate on 07.09.1982 and after receiving such notice, the
{{ 5 }}
State (defendant) through Deputy Superintendent of Police, Puri issued
letters on dated 30.11.1982 and 14.12.1982 respectively to the plaintiff
asking him to produce his papers in respect of the suit properties relating
to his title and possession on the same and accordingly, the plaintiff
produced all the documents in his favour including the final order of
O.E.A Misc. Case No.276 of 1981, rent receipts and other connected
papers and after seeing the said documents of the plaintiff, the Deputy
Superintendent of Police was satisfied about the title and possession of
the plaintiff over the suit properties and absence of title and possession of
the defendant on the same, but in spite of that, the Reserve Inspector of
Police threatened the plaintiff to arrest him, if, he (plaintiff) will construct
boundary wall around the suit properties. So, in order to oust the plaintiff
from the suit properties, the Revenue Inspector of Police came to the suit
properties on 13.01.1983 with some labourers and tried to dig foundation
inside the suit properties and also threatened the plaintiff to posses the
same forcibly by dispossessing him (plaintiff), from the same. For which,
the plaintiff filed the suit vide O.S. No.17 of 1983-I against the defendant
(State) after serving statutory notice under Section 80 (1) of the CPC on
the defendant praying for restraining the defendant (State) permanently
from raising any construction on the suit properties or from making any
{{ 6 }}
interference in the possession of the plaintiff over the suit properties or
from encroaching any portion of the suit properties forcibly along with
other relief(s), to which, he (plaintiff) is entitled for.
4. Having been noticed from the Trial Court in the suit vide O.S.
No.17 of 1983-I, the defendant-State contested the same by filing its
written statement taking its stands inter alia therein that:
Mahant of Dakhina Parswa Math Shri Jahannath Ramanuj Das
had not inducted to the father of the plaintiff i.e. Baidyanath Sahu as
tenant in respect of the suit properties at any point of time. Neither the
father of the plaintiff nor the plaintiff had/has possessed the suit
properties. The Hal Settlement operation has not been finalized as yet.
Therefore, the question of recording the suit properties in the draft R.o.R
in the name of the plaintiff does not arise. The plaintiff has not been
threatened by the R.I. at any point of time.
The further case of the defendant was that, an Order, which was
passed in O.E.A Case No.276 of 1981 in respect of the suit properties in
favour of the plaintiff, the said order has been obtained by the plaintiff
fraudulently by influencing the local Revenue Inspector. In fact, the
plaintiff has no right, title, interest and possession over the suit
{{ 7 }}
properties, for which, the suit of the plaintiff is liable to be dismissed
against the State (defendant).
5. Basing upon the aforesaid pleadings and matters in controversies
between the parties, altogether 4 numbers of issues were framed by the
Trial Court in the suit vide O.S. No.17 of 1983-I and the said issues are:
ISSUES
1. Is the suit maintainable in law?
2. Is the suit barred by limitation?
3. Has the plaintiff any right, title, interest or possession in respect of
the suit property?
4. To what relief, if any, the plaintiff is entitled?
6. In order to substantiate the aforesaid relief i.e. permanent
injunction sought for by the plaintiff against the defendant (State), he
(plaintiff) examined altogether 2 numbers of witnesses from his side
including him (plaintiff) as P.W.1 and relied upon series of documents
vide Exts.1 to 7 on his behalf.
Though the defendant/State cross-examined the witnesses of the
plaintiff, but, the defendant/State did not adduce any oral or documentary
evidence from its side.
7. After conclusion of hearing and on perusal of the materials,
documents and evidence available in the record, the trial court answered
issue Nos.1,3 & 4 in favour of the plaintiff and against the defendant and
{{ 8 }}
basing upon the findings and observations made by the trial court in issue
Nos.1,3 & 4 against the defendant, the trial court decreed the suit of the
plaintiff vide O.S. No.17 of 1983-I on contest against the defendant
(State) without cost as per its Judgment and Decree dated 01.10.1986 &
23.10.1986 respectively and restrained the defendant (State) permanently
from raising any construction or from interfering in the possession of the
plaintiff over the suit properties assigning the reasons that, the plaintiff
has established that, his father was inducted as a tenant in respect of the
suit properties in the year 1938 and he (plaintiff) has been possessing the
suit properties since the time of his father i.e. since the year 1938
continuously and when the defendant (State) through its employees is
trying to disposses the plaintiff from the suit properties forcibly, then, he
(plaintiff) is entitled for the decree of permanent injunction against the
defendant, because, the possession of the suit properties is with him
(plaintiff) since 1938 and all the revenue documents of the suit properties
are in his favour, for which, the plaintiff has right, title, interest and
possession over the suit properties. Therefore, the suit of the plaintiff
against the defendant (State) is maintainable under law and the plaintiff is
entitled for the relief i.e. permanent injunction against the defendant.
{{ 9 }}
Eight years after the aforesaid Judgment and Decree dated
01.10.1986 and 23.10.1986 respectively passed by the trial court in O.S.
No.17 of 1983-I in favour of the plaintiff against the defendant, the
defendant challenged that Judgment and Decree dated 01.10.1986 and
23.10.1986 respectively passed in O.S. No.17 of 1983-I by preferring 1st
Appeal under Section 96 of the CPC, 1908 vide T.A. No.18 of 1994
before the District Judge, Puri praying for condonation of delay in
preferring that 1st Appeal.
8. After hearing from both the sides, the delay of 8 years in preferring
that 1st Appeal vide T.A. No.18 of 1994 by the defendant-State was
condoned subject to payment of cost of Rs.500/-, to which, the plaintiff
challenged by filing a Civil Revision vide Civil Revision No.95 of 1996
before the Hon'ble High Court of Orissa.
In that Civil Revision, the amount of cost for condonation of delay
was enhanced from Rs.500/- to Rs.15,000/-. Accordingly, after
complying the direction of the Revisional Court passed in Civil Revision
No.95 of 1996, the 1st Appeal of the defendant-State vide T.A. No.18 of
1994 was admitted for hearing.
In that 1st Appeal vide T.A No.18 of 1994, the defendant (State)
(appellant in the 1st Appeal) filed two separate petitions i.e. one under
{{ 10 }}
Order 6, Rule 17 of the CPC for amendment of its W.S. and another
under Order 41, Rule 27 of the CPC, 1908 for adducing additional
evidence.
After hearing the 1st Appeal along with the aforesaid two petitions
under Order 6 Rule 17 and under Order 41, Rule 27 of the CPC, 1908
from both the sides, the 1st Appellate Court allowed that two
petitions/applications of the appellant-Defendant and set aside the
Judgment and Decree passed by the Trial Court in O.S. No.17 of 1983-I
in favour of the plaintiff and remitted back to that suit vide O.S. No.17 of
1983-I to the Trial Court for its fresh disposal by framing new issues.
9. On being aggrieved with the said Judgment of remand of the suit
passed by the 1st Appellate Court in the Judgment and Decree passed in
T.A. No.18 of 1994, the plaintiff preferred Misc. Appeal No.185 of 1997
under Order 43 Rule 1(u) of the CPC, 1908 before the Hon'ble High
Court of Orissa against the defendant and after hearing from both the
sides, that Misc. Appeal vide Misc. Appeal No.185 of 1997 of the
plaintiff was allowed by the Hon'ble High Court of Orissa and directed
the 1st Appellate Court to dispose of the 1st Appeal vide T.A. No.18 of
1994 afresh along with the two applications/petitions of the defendant
under Order 6, Rule 17 and under Order 41, Rule 27 of the CPC.
{{ 11 }}
After remand of the 1st Appeal vide T.A. No.18 of 1994, the 1 st
Appellate Court heard that 1st Appeal vide T.A. No.18 of 1994 afresh
along with its two petitions under Order 6, Rule 17 of the CPC, 1908 and
under Order 41 Rule 27 of the CPC, 1908 of the defendant (State) from
both the sides.
10. After hearing, the 1st Appellate Court allowed the 1st Appeal vide
T.A. No.18 of 1994 of the defendant as per its Judgment and Decree
dated 10.08.2000 & 24.08.2000 respectively, but rejected both the
applications/petitions of the defendant under Order 6, Rule 17 and under
Order 41, Rule 27 of the CPC, 1908 and set aside the Judgment and
Decree dated 01.10.1986 and 23.10.1986 respectively passed in T.S.
No.17 of 1983-I by the trial court assigning the reasons that, "Ext.1 (lease
deed of the year 1938) in favour of the father of the plaintiff i.e.
Baidyanath Sahu in respect of the suit properties being an unregistered
document, the same is not admissible in evidence, because, the contents
thereof have not been proved and due to non-proving of the contents of
that Ext.1, the said Ext.1 is not admissible under law for any purpose and
the order of the Tahasildar passed in O.E.A. Case No.276 of 1981 in
respect of the suit properties in favour of the plaintiff is without
jurisdiction, because, Section 8(1) of the O.E.A Act does not contemplate
{{ 12 }}
for filing of any application and the rent receipts, those have been issued
by the Government without prejudice in respect of the suit properties in
favour of the plaintiff cannot confer any right of the plaintiff in the suit
properties and when the Exts.1 to 4 have become inadmissible under law,
for which, the draft R.o.R (Ext.5) of the suit properties in the Hal
Settlement prepared by the Settlement Authorities in favour of the plaintiff
has no recognition, as the said Ext.5 has been prepared on the basis of
Exts.1,2,3 & 4 and the oral evidence adduced by the plaintiff in respect of
his possession over the suit properties is vague, because he (plaintiff) has
not examined any witness in respect of his possession over the suit
properties and there is also no evidence concerning the delivery of
possession of the suit properties in favour of the plaintiff."
11. On being aggrieved with the aforesaid Judgment and Decree dated
10.08.2000 & 24.08.2000 respectively passed by the 1 st Appellate Court
in T.A. No.18 of 1994 in setting aside the Judgment & Decree dated
01.10.1986 and 23.10.1986 respectively passed by the trial court in T.S.
No.17 of 1983-I in favour of the plaintiff, he (plaintiff) challenged the
same by preferring this 2nd Appeal being the appellant against the
defendant-State arraying the defendant (State) as respondent.
{{ 13 }}
When, during the pendency of this 2nd appeal, the
appellant/plaintiff Madhusudan Sahu expired, then, his LRs were
substituted in his place as appellant Nos.1(a) to 1(d).
12. This 2nd Appeal was admitted on formulation of the following
substantial questions of law i.e.
i. Whether the learned lower appellate court
is justified in excluding Ext.1 from
consideration on the ground that, it does
not bear the signature of the plaintiff or
his father when no such objection was
raised by the State when the document
was admitted in evidence for marking the
same as an Exhibit?
ii. Whether the finding of the learned lower
appellate Court ignoring the order of the
Tahasildar dated 04.01.1982 recognising
the tenancy right of the plaintiff in Misc.
Case No.276 of 1981 is without
jurisdiction in view of the provision of
Section 39 of the O.E.A. Act?
13. I have already heard from the learned counsel for the appellant and
learned Additional Government Advocate for the State/respondent.
14. In order to assail the impugned Judgment and Decree passed by the
1st Appellate Court in T.A. No.18 of 1994 and in support of the Judgment
and Decree passed by the trial court in O.S. No.17 of 1983-I, the learned
counsel for the appellant(plaintiff) relied upon the following decisions:
{{ 14 }}
a) AIR 1961 Supreme Court 1655 (V 48 C 312):Javer
Chand & others.
b) 1999 (II) OLR 319: Natabar Behera Vs.
Batakrushna Das
c) 1992 (I) OLR 41: Smt. Basanti Kumari Sahu Vs.
State of Orissa & Others
d) 1993 (I) OLR 4: Hiradhar Patel Vs. Lalindra
Gand@Naik and Another.
e) AIR 1996 SC 906:State of Kerala Vs. M.K.
Kunhikanan Nambiar Manjeri Manikoth, Naduvil
(dead) & Others.
f) AIR 1996 SC 910:Mohan Lal (deceased) through his
LRs Kachru & Others Vs. Mira Abdul Gaffar and
another.
g) AIR 2011 Supreme Court 1140: Krishnadevi
Malchand Kamathia & Others Vs. Bombay
Environmental Action Group & Others.
h) AIR 2022 SC 5317: S. Ramchandra Rao Vs. S.
Nagabhusand Rao & Others.
i) AIR 2016 SC 564:Sri Jagannath Temple Managing
Committee Vs. Siddha Math & Others
15. On the contrary, in support of the Judgment and Decree passed by
the 1st Appellate Court in T.A. No.18 of 1994, the learned Addl.
Government Advocate for the State/defendant relied upon the following
decisions:
a) AIR 1984 Ori. 88: Gouri Shankar Vs. State of
Orissa.
b) AIR 1964 Pat 1:Rama Nath Mandal VS Jojan
Mandal.
c) AIR 1955 SC 328: Sita Maharani & Others Vs.
Chhedi Mahto & Others.(Para-13)
d) AIR 1946 PC 51: Rama Rattan Vs. Parma
Nand.
e) 44 (1977) CLT 65: Magu Sahu Vs. Bhramarbara
Behera.
{{ 15 }}
f) 57(1984) CLT (1):Radharani Dibya Vs. Braja
Mohan Biswal.
g) 2000(II) OLR 9:Union of India & Others Vs.
Kathi Bewa & Others
h) (2008) 4 SCC 594:Anathula Sudhakar Vs. P.
Buchi Reddy. (Paragraph No. 13.3, 14, 21 & 25).
i) 2024 SCC Online SC 169:Tehsildar, Urban
Improvement Trust & Another Vs. Ganga Bai
Menariya (Dead through LRS & Others)
j) 2000 (I) OLR 590: Gopal Patra Vs. Loknath
Patra. (Paragraphs No. 6 to 10):
16. It is the case of the plaintiff that, the father of the plaintiff was
inducted as a tenant of the suit properties through an unregistered lease
deed dated 10.10.1938. That unregistered lease deed has been marked as
Ext.1 on behalf of the plaintiff.
In Para Nos.29 & 30 of the Judgment and Decree passed by the 1 st
Appellate Court in T.A.No.18 of 1994, the 1 st Appellate Court has held
that, unregistered lease deed vide Ext.1 is not admissible in evidence for
any purpose including for any collateral purpose assigning the reasons
that, a valid lease deed is required to be adequately stamped under the
Indian Stamp Act. The unregistered lease deed vide Ext.1 is an
unstamped document purported to have been signed by the lessor only. A
valid deed of lease has to be executed by both lessor and lessee and the
same has to be registered, if the same is for agricultural purposes from
year to year or from any time exceeding a year. Section 35 of the Indian
{{ 16 }}
Stamp Act prohibits admission in evidence of an unstamped instrument,
which was required to be chargeable with stamp duty for any purpose.
The same has been fortified in the ratio of the decision reported in A.I.R.
1946 Privy Council 51 (Rama Rattan Vs. Parmananda), wherein it has
been held that, where an unstamped document is admitted in proof of
some collateral matter, it is certainly admitted for that purpose, which
Section 35 of the Indian Stamp Act has prohibited.
Therefore, according to the 1st Appellate Court, the unregistered
lease deed vide Ext.1 relied by the plaintiff is not at all admissible in
evidence as the contents thereof have not been proved. For which, it was
held by the 1st Appellate Court that, the learned trial court has committed
gross error in relying upon that document vide Ext.1 to uphold the
plaintiff's claim of tenancy over the suit land. So, in the absence of
registration and stamp duty and in the absence of proof of the contents of
Ext.1, that document is not admissible in evidence for any collateral
purpose also.
17. In order to assail the above findings and observations made by the
1st Appellate Court in Para Nos.29 and 30 of the Judgment and Decree
passed in T.A. No.18 of 1994, the learned counsel for the appellant
(plaintiff) argued that, Ext.1 is a document of more than 30 years old,
{{ 17 }}
which carries presumption of the correctness of its execution, because, it
was produced from the proper custody and the same has the evidentiary
value as per Section 90 of the Indian Evidence Act, 1872. In absence of
any cogent evidence to disprove it, the findings of the learned 1st
Appellate Court is not sustainable. Because, Ext.1 has been admitted into
evidence and has been marked as Exhibit without any objection. It was
also subjected to examination and cross-examination. Because, it is the
settled principles of law that, once a document like Ext.1 has been
admitted into evidence and marked as an Exhibit in the case and the same
has been used by the parties in examination and cross examination of
their witnesses, it is not open either to the trial court itself or to the court
of Appeal or Revision to go behind that order.
18. In support of such argument, the learned counsel for the appellant
(plaintiff) relied upon the ratio of the decision of the Apex Court reported
in AIR 1961 Supreme Court 1655 (V 48 C 312): Javer Chand & Others
Vs. Pukhraj Surana.
But, in support of the findings and observations made by the 1 st
Appellate Court in Para Nos.29 and 30 of the Judgment passed in T.A.
No.18 of 1994, regarding the inadmissibility of the unregistered lease
deed dated 10.10.1938 vide Ext.1 in respect of the suit properties, the
{{ 18 }}
learned Addl. Govt. Advocate for the respondent (State) relied upon the
decisions of the Hon'ble Courts and Apex Court reported in AIR 1964
Patna 1: Rama Nath Mandal Vs. Jojan Mandal, AIR 1955 SC 328
(Para No.13): Sita Maharani Vs. Chhedi Mahto, AIR 1984 Orissa
88:Gouri Shankar Vs. State, AIR 1946 P.C. 51: Rama Rattan Vs.
Parma Nanda, 44 (1977) C.L.T 65, 57 (1984) C.L.T 1: Radharani
Dibya Vs. Braja Mohan Biswal and 2000 (II) O.L.R. 9: United of India
(UOI) & Others Vs. Kathi Bewa & Others.
As per the decision reported in AIR 1964 Patna 1 (Full Bench):
Rama Nath Mandal Vs. Jojan Mandal placing reliance in the decision
reported in AIR 1955 SC 328 (Para No.13): Sita Maharani Vs. Chhedi
Mahto it has been held that,
"A lease for agricultural purposes is not necessary to be made by a
written instrument. It may be effected by an oral agreement and when, so
effected, no registration is required.
However, if the transaction is reduced into writing, then, in the
case of a lease from year to year or for any term exceeding a year or
reserving a yearly rent, the registration would be required under Section
17 of the Registration Act, and, if unregistered, the lease will be
inadmissible in evidence under Section 49 of the Registration Act and
{{ 19 }}
other evidence of its terms will be precluded under Section 91 of the
Evidence Act."
19. On this aspect, by taking the ratios of the aforesaid two decisions
of the Hon'ble Courts and Apex Court reported in AIR 1964 Patna 1
(Full Bench): Rama Nath Mandal Vs. Jojan Mandal & AIR 1955 SC
328 (Para No.13): Sita Maharani Vs. Chhedi Mahto into account, it has
been held by the Hon'ble Courts in the ratio of the following decisions
that,
I. 2001 (1) OLR 208:Nrusingha Charan Samal & Another Vs.
Kuntala Kumari Samal & Others. (Para No.8)
Lease--Agricultural Land--"Hata Pata"--Agricultural land can be
leased out orally by acceptance of rent and delivery of possession
"Hata Pata" though not registered can be taken as evidencing oral
lease.
II. 2019 (II) CLR 1130: Janhabi Dei & Another Vs. Shankhali Alias
Krushna Panda (since dead) through LRs & Others. (Para No.12)
T.P. Act, 1882, Section 117--Lease deed--Agricultural land--
Exempted from registration--Since under Section 117 of T.P. Act, the
agricultural leases are excluded from operation of the Act, the
provisions of Section 107 did not apply to it.
III. 2019 (II) OLR 289: Madan Mohan Sahoo Vs. State of Odisha &
Another.
Registration Act, 1899--Section 17--Un-registration Prajapatta--
Where the value is more than Rs.100/---In view of the authoritative
pronouncement of the full Bench decision in the case of Ram Nath
Mandal, the same requires registration under Section 17 of the
Registration Act.
IV. 29 (1963) CLT 428:Naban Bewa Vs. Nabakishore Samal (Para
No.6).
T.P. Act, 1882, Section 117 and 107--Agricultural lease can be created
orally and by delivery of possession and in order to confer any lese-
hold right, a registered document is not essential.
{{ 20 }}
V. 2003 (I) OLR (NOC) 86:Panchu Samal Vs. Commissioner of
Consolidation, Orissa, Cuttack & Others. (Para No.5).
T.P. Act, 1882, Section 117--A lease for agricultural purpose is not
necessary to be made by a written instrument-- It may be effected by an
oral agreement--No registration is required.
VI. AIR 1979 Patna 106: Sardamoni Debi Vs. State of Bihar & Others.
Transfer of Property Act (4 of 1882), S. 117--'Agricultural Purpose'--
Test to determine--Settlement of tank and its embankment--Lessee
using tank for rearing fish and growing vegetables on embankment--
Held, lease was for agricultural purposes.
VII. 2005 (2) CCC 239 (M.P): Atar Singh & Others Vs. Jiledar Singh &
Others.
Section 117 & 107--Lease of agricultural land--Need not be
registered--Agricultural leases are excluded from operation of the Act
and thus provision of Section 107 of the Act do not apply to it.
It is the case of the parties that, the unregistered lease deed vide
Ext.1 was executed by the ex-intermediary in favour of the father of the
plaintiff in respect of the suit properties for agricultural purposes and that
Ext.1 has not been registered and there is no indication in that Ext.1 about
its value.
When, it is the settled propositions of law that, a lease for
agricultural purposes is exempted from registration and an agricultural
tenancy can be created either orally or through delivery of possession and
registration of that instrument is not compulsory, then, at this juncture, by
applying such principles of law enunciated in the ratio of the above
decisions, it can be held that, land can be leased out for an agricultural
purpose either orally by acceptance of rent or by delivery of possession
{{ 21 }}
and if a lease deed concerning agricultural lease is not registered, the same
can be taken as evidencing an oral lease.
Ext.3 is the Order of the Tahasildar-cum-O.E.A Collector in O.E.A.
Case No.276 of 1981, in which, as per Section 8 (1) of the O.E.A. Act, the
suit properties were settled in favour of the appellant/plaintiff and on the
basis of such settlement, tenancy ledger in respect of the suit properties
was opened in favour of the appellant (plaintiff) and after opening of the
tenancy ledger of the suit properties in favour of the plaintiff, rent of the
suit properties have been accepted by the State from the plaintiff as per
Ext.4 and thereafter, during Hal Settlement operation, the draft R.o.R of
the suit properties vide Ext.5 was prepared in favour of the plaintiff on the
basis of Exts.1,2,3 and 4.
20. On the basis of the documents vide Exts.1, 2 series,3,4 and 5, the
plaintiff has claimed his possession over the suit properties as the owner
thereof.
The trial court had accepted the claim of the plaintiff on the basis of
the documents vide Exts.1, 2 series,3,4 and 5. But, the 1st Appellate Court
has negatived to the said findings of the trial court assigning the reasons in
Para Nos.31 to 38 of the Judgment and Decree passed in T.A. No.18 of
1994 that, "when the suit properties were settled in favour of the plaintiff
{{ 22 }}
on the basis of the application made on behalf of the plaintiff in O.E.A.
Case No.276 of 1981 as per Section 8(1) of the O.E.A Act, then, the order
passed by the Tahasildar in response to such petition/application for
initiation of O.E.A. Case No.276 of 1981 is nonest in the eye of law.
Because, O.E.A Act makes no provision for an application and no enquiry
is contemplated under the said Section 8(1) of the O.E.A. Act. Therefore,
there was not any basis for initiation of O.E.A. Case No.276 of 1981
through the petition/application of the plaintiff. For which, the order
stated to have been passed by the Tahasildar in O.E.A Case No.276 of
1981 on the basis of the petition/application of the plaintiff is nonest in the
eye of law. When the said order passed in O.E.A Case No.276 of 1981
vide Ext.3 in favour of the plaintiff is nonest in the eye of law, then, the
subsequent documents i.e. Ext.4 and Ext.5 (draft R.o.R.) in favour of the
plaintiff on the basis of a nonest order vide Ext.3 passed in O.E.A. Case
No.276 of 1981 are inadmissible under law. That apart, there is also no
evidence in record to show that, who has received the rent and who had
issued the Ext.2 series and Ext.4 and the acceptance of rent by an agent of
the State is not sufficient to establish a tenancy, unless that agent was
specially authorized to accept such rent and when the rent receipts were
issued without prejudice, then, as per the settled law of the Hon'ble
{{ 23 }}
Courts, the said rent receipts have not any legal effect for creation of any
right of the plaintiff over the suit properties. The acceptance of rents
through such rent receipts cannot confer any tenancy interest in the suit
properties in favour of the plaintiff.
When, the aforesaid documents vide Exts.1,2 series, 3 and 4 have
no impact in respect of creation of tenancy right of the plaintiff over the
suit properties, then, the preparation of the draft R.o.R of the suit
properties in favour of the plaintiff during Hal settlement vide Ext.5 is
inconsequential. In addition to that, the plaintiff has not examined any
witness to testify regarding the creation of tenancy and acceptance of rent
by the Matha. There is also no evidence regarding the delivery of
possession of the suit land to the plaintiff's father, for which, the plaintiff
has miserably failed to establish his claim to have acquired his tenancy
over the suit land and to have exercised any incident of right, title, interest
and possession over the suit land so as to be entitled to a decree for
permanent injunction against the defendant. Therefore, the suit of the
plaintiff is liable to fail"
On the basis of the above findings and observations, the 1st
Appellate Court has set aside the Judgment and Decree passed by the trial
court in T.S. No.17 of 1983-I.
{{ 24 }}
21. In order to render the above findings and observations made by the
1st Appellate Court in Para Nos.31 to 38 of the Judgment and Decree
unsustainable, the learned counsel for the appellant (plaintiff) relied upon
the ratio of the decisions reported in 1989(1) OLR 158: Premananda Das
Vrs. State of Orissa & Others, 1992 (1) OLR 41: Smt. Basanti Kumari
Sahu Vrs. State of Orissa & Others, 1993 (1) OLR 4: Hiradhar Patel
Vrs. Lalindra Gand @ Naik & Another & AIR 2011 (SC) 1140 (Para
Nos.17 to 21): Krishna Malchand Kamathia & Others Vs. Bombay
Environmental Action Group & Others.
It is no doubt true as per law that, under Section 8(1) of the O.E.A
Act, a tenant is not required under law to file an application. But even for
permitting continuity of the tenure of tenants, the appropriate authority
has to be satisfied that the person concerned was really in possession of
any holding as a tenant under the intermediary before the date of vesting,
so that, he/she can be recognized as a tenant under the State. For which,
though any petitioner/applicant may have misconceived the position in
law and made an application under Section 8(1) of the O.E.A Act, the
officer, i.e. the Tahasildar, should have considered the same on the
administrative side with a view to satisfying himself, whether
petitioner/applicant was a tenant under the State prior to vesting having
{{ 25 }}
regard to the provisions contained in Section 8(1) of the O.E.A. Act and
the State shall be obliged to accept rent from him/her. In that situation, the
misconceived application of the applicant under Section 8(1) of the
O.E.A. Act cannot and shall not absolve the Tahasildar from proceeding
in the right manner.
In this instant case, although as per Section 38-B of the O.E.A. Act,
the order passed by the O.E.A. Collector vide Ext.3 passed in O.E.A. Case
No.276 of 1981 under Section 8(1) of the O.E.A. Act, regarding the
settlement of the suit properties in favour of the plaintiff on the basis of
Ext.1 was revisable under law, but the State Government (defendant) in its
wisdom did not get it annulled and as such, the State has accepted the
same without challenging the same within prescribed period of limitation
for its annulment. For which, that order of settlement of the suit properties
in favour of the plaintiff has attained its finality. Therefore, the same is
not opened to be questioned now. That too, the order passed by the O.E.A.
Authority cannot be questioned before the Civil Court in view of the bar
under Section 39 of the O.E.A. Act.
22. It is the settled propositions of law that, an order, even if not made
in good faith, the same has legal consequences/forces. It bears no frank of
invalidity upon its forehead, unless the necessary proceedings are taken
{{ 26 }}
under law to establish the cause of invalidity and to get it quashed or
otherwise upset, the said order shall remain as effective.
Even if an order is void, it requires to be declared as void by a
competent forum and it is not permissible for any person to ignore the
same, merely because, in his opinion, that order is void. The order may be
hypothetically a nullity and even if its invalidity is challenged before the
court in a given circumstance, the court may refuse to quash the same on
various grounds. Because, an order may be void for one purpose or for
one person, it may not be so for another purpose or another person.
The officer, who collects the rent, is the agent/employee of the
State. For which, the State Government (defendant) cannot say that, the
rents in respect of the suit properties have not been collected from the
plaintiff.
23. The legal affect of an unchallenged order of settlement of land
under Section 8(1) of the O.E.A. Act concerning the suit properties like
this suit/appeal at hand, as per Ext.3 has already been clarified by the
Hon'ble Courts in the ratio of the following decisions:
I. C.W.R. 1970 (1) 450 & 36 (1970) CLT 1307: Ramakrushna
Paramguru Vs. Murtunjaya Das & Others.(Para No.5).
"O.E.A Act, (1951)--(Orissa Act, 1 of 1952) Section 39--Settlement
made in favour of the plaintiff under the Act--Any defect in the
plaintiff's title prior to the settlement need not be enquired into. The
admitted position is that, the settlement made in favour of the
{{ 27 }}
plaintiff under the Estates Abolition Act has become final. Any defect
in the plaintiff's title prior to the settlement need not be enquired
into now, particularly because the decision of the Collector under
the Act is not open to question under Section 39 of the Estates
Abolition Act. In the present suit that question is not open to be gone
into again."
II. 2014 (2) OJR (200): State of Orissa & another Vs. Pravabati
Das & Others.
Orissa Estates Abolition Act, 1951--Section 8(1)--Continuity of
tenure of tenants--Order passed by the O.E.A. Collector-cum-
Tahasildar, declaring the tenancy right of the predecessor of the
respondent--That order has not been challenged in higher forum,
and has reached in its finality--Application filed by the respondents
under Section 15(b) of the Orissa Survey Settlement Act for
correction of the R.O.R. in accordance with the order passed by the
O.E.A. Authority has been remitted back to the Tahaildar--Order
passed declaring the tenancy right of the predecessor of the
respondents over the case land is still in force--It will not affect the
revision preferred by the appellants under Section 38 of the O.E.A.
Act--The matter has already been heard by the competent Ο.Ε.Λ.
Authority in exercise of power under Section 38 of the O.E.A. Act
and judgment is yet to be pronounced--Any recording made by the
Tahasildar pursuant to the order passed under Section 15(b) of the
Ο.Ε.Λ. Act shall be subject to the outcome of order passed by the
Revisional Authority under Section 38 of the O.E.A. Act.
III. 2014 (II) CLR 1217: Susanta Kumar Jena & Another Vs.
Smt. Basanti Sethi & Others. (Para No.12)
O.E.A. Act, 1951--Once the tenancy was created in favour of
Kameswar and the State after vesting recognized his tenancy, right
accrued in favour of respondents/Opposite Party Nos.1 and 2 to
continue as recorded tenants and they were entitled to enjoy the
disputed plot in question.
IV. 2018 (I) CLR 644: Krushna Chandra Biswal Vs. State of
Orissa & Others.
T.P. Act, 1882, Section 117--Whether an agricultural tenancy can
be created through an re-registered lease deed (hata patta) and
acceptance of rent as well as salami by ex-land lord?--As per
decision of Jagannath Nanda Vs. Bishnu Dalai reported in Vol.40,
(1974) CLT 88 of Division Bench of this Hon'ble Court held that,
under tenancy laws, a formal document is not necessary to create an
{{ 28 }}
agricultural tenancy and a tenant can be inducted to an agricultural
holding by mere acceptance of rent.
V. 1973 (2) C.W.R. 987: Duryodhan Das Vs. The Collector of
Dhenkanal & Others & I.L.R. 1961 Cuttack, 595: Basiruddin Vs.
State of Orissa.
O.E.A. Act, 1951--Once a patta is granted and rent is collected,
tenancy right create in favour of the grantee and while government
is the landlord and the grantee becomes a tenant under the ordinary
tenancy law, it is no more open to the Government in exercise of the
powers of a grantor to withdraw from the lease.
VI. 1992 (II) OLR 529: Manmohan Rout (after him) Sundari
Devi & Others Vs. State of Orissa & Others (Para No.3).
O.E.A. Act, 1951--When undisputedly petitioners' names were
included in the Tenant's Ledger by the revenue authorities and rent
was accepted from them, there cannot be any manner of doubt that,
the petitioners were accepted as tenants under the State Government
and that right cannot be taken away in any manner, by any entry in
the R.o.R, therefore, the petitioners' right which they acquired by
virtue of acceptance of rent from them by revenue authority under
Section 8(1) of the Orissa Estates Abolition Act cannot be whittled
down in any manner.
VII. 37 (1971) CLT 379: Dhruba Charan Sahu Vs. State of
Orissa & Others (Para No.2).
Under the provisions of the Orissa Tenancy Act, the petitioner
acquired a tenant's right in the land, because, it is well settled that,
under the Orissa Tenancy Act, a tenant can be inducted to a holding
by mere acceptance of rent. In which case, he acquires the status of
a tenant. The fact that, the land in question belonged to Government
and that the landlord is the Government does not make any
difference so far as the incidents of tenancy are concerned. That
being the position, the Government cannot by a subsequent executive
order extinguish the right, which the petitioner has acquired in the
land and much less can they forcibly enter on the land.
VIII. 109 (2010) CLT 639: Rabindra Kumar Das & Others Vs.
The Commissioner, Settlement & Consolidation & Others. (Para
No.7)
Document--Tenancy ledger prepared by responsible authorities of
the State & State being the custodian of the said document--
Manipulation in the tenancy ledger to be established with cogent
evidence in competent court.
{{ 29 }}
IX. 1992 (I) OLR 41 (Full Bench): Smt. Basanti Kumari Sahu
Vs. State of Orissa & Others. (Para Nos.7 to 11).
O.E.A. Act, 1951, Section 8(1)--Under the Act, tenancy rights did
not vest in the State--After vesting tenant continues as a tenant--The
State as landlord is entitled to collect rent--The Tahasildar collects
rent as agent of the landlord-Government--He has no right to settle
the land with the tenant--Such settlement is without jurisdiction--
When the tenant applies to the Tahasildar with application
purporting to be under Section 8 (1) of the O.E.A. Act, the
Tahasildar May, for his satisfaction, make enquiry as to the records
if he is tenant--This is administrative in nature.
X. 67 (1989) C.L.T. 548: Premananda Das Vs. State of Orissa &
Others. (Para No.4).
O.E.A. Act, 1951--Section 8(1)--It is no doubt true that under
Section 8(1) of the O.E.A. Act, a tenant is not required to file an
application. But, even for permitting continuity of the tenure of
tenants, the appropriate authority has to be satisfied that, the person
concerned was really in possession of any holding as a tenant under
the intermediary before the date of vesting, so that he can be
recognized as a tenant under the State.
XI. 38 (1971) CLT 225: Jogendranath Mohanty & Another Vs.
Jagannath Mohanty & Others. (Para Nos.7 and 8)
O.E.A. Act, 1951, Sections 6,7 & 8A--Land has been settled in
favour of the plaintiff by the Government after abolition of
intermediary interest--Title accrues independent of the
consideration of previous title over the land.
When the Intermediary interest in the present case was abolished,
the previously existing rights of the intermediaries with whomsoever
it rested came to an end, by the settlement, the plaintiffs must be
deemed to have acquired a new and independent title which is not in
any manner connected with or dependent on passing of title or
otherwise that might have occurred. Thus, irrespective of the defects
that might have existed in the plaintiffs' title to the suit land prior to
the date of abolition, they have acquired a valid title by virtue of the
settlement obtained from the State Government.
Orissa Estates Abolition Act, 1951--Section 39--Defendant did
not challenge the order of the Collector settling land in favour of the
plaintiff--Questioning the validity of such Order is a bar in the Civil
Suit.
{{ 30 }}
The defendant has not challenged the validity of the order or the
jurisdiction of the Collector to pass the same on the ground that in
enquiring into the claim of passing the order the mandatory
provisions of the procedure have not been complied with, Section 39
of the Act is a bar to questioning the validity of the order settling the
land on the plaintiffs by determining the fair and equitable rent
under Section 8A of the O.E.A. Act.
XII. 1992 (II) OLR 529: Manmohan Rout (and after him)
Sundari Devi & Others Vs. State of Orissa & Others.
Section 8 (1) of the O.E.A. Act--Name entered in Tenants' ledger
and the rent has been accepted-- No document of lease is necessary
for agricultural lease--Acceptance of rent creates tenancy right.
XIII. 2004 (II) OLR 528: Choudhury Balaram Dash Vs. The
Commissioner, Consolidation, Orissa & Others.
O.E.A. Act, 1951--Section 6 and 7--When the land vested with the
State Government free from all encumbrances in consonance with
the O.E.A. Act--After vesting, the lands have been settled in favour
of the petitioner under the O.E.A. Act and the record of rights were
prepared in his favour--Order not challenged by the O.P. and the
same has attained finality--The order being a valid one, the
Consolidation Authorities are bound by the said order.
24. Here in this suit at hand, when it is the undisputed case of the
parties that, the suit properties have been settled in favour of the plaintiff
by the OEA Collector, i.e. the Tahasildar in O.E.A. Case No.276 of 1981
as per Ext.3 and on the basis of such settlement of the suit properties in
favor of the plaintiff, the tenancy ledger of the suit properties was opened
by the Government in the name of the plaintiff and thereafter the rents
have been collected from him as per Ext.4 on the basis of the said tenancy
ledger in favour of the plaintiff in respect of the suit properties and when,
the defendant (State) has not challenged that order of settlement of the
{{ 31 }}
suit properties as per Ext.3 in favour of the plaintiff before any higher
forums/authorities under O.E.A. Act and when, after settlement of the suit
properties in favour of the plaintiff, the State has accepted the plaintiff as
tenant of the suit properties directly under it by accepting the rents from
him and when as per law, no formal document is necessary for creation of
an agricultural tenancy and a tenant can be inducted to an agricultural
holding by mere acceptance of rent and when, as per the discussions and
observations made above, the unregistered lease deed vide Ext.1 has not
become inadmissible under law, because, there is no material in the
record on behalf of the defendant (State) to show that, the value of that
Ext.1 was more than Rs.100/- and when the documents vide Exts.1 to 5
are showing about the possession of the plaintiff over the suit properties
since the time of his father, then, at this juncture, even if the Ext.1 is not
registered, the same also can be taken as evidencing oral lease of the suit
properties.
So, by applying the principles of law enunciated in the ratio of the
aforesaid decisions, it is held that, the plaintiff is in possession over the
suit properties as the tenant of the same under the defendant (State) and
his tenancy has been accepted by the defendant (State). For which, the
decisions relied by the respondent/defendant/State indicated above in
{{ 32 }}
Para No.15 of this Judgment have become inapplicable to the suit/appeal
at hand being quite distinguishable from the facts of the suit as discussed
above.
25. Learned Addl. Government Advocate for the defendant (State) has
also argued to make the suit for injunction simpliciter vide T.S. No.17 of
1983-I filed by the plaintiff against the defendant (State) in respect of the
suit properties as not maintainable, on the ground that, when from the
very beginning i.e. starting from its written statement, the defendant
(State) has disputed the title of the plaintiff over the suit land, for which,
it was required for the plaintiff to seek the relief of declaration as per the
proviso of Section 34 of Specific Relief Act, 1963 and in absence of
declaration of title, the suit of the plaintiff is not maintainable under law.
In support of his aforesaid contention, the learned Addl.
Government Advocate relied upon the ratio of the decision of the Apex
Court reported in 2008 (4) SCC 594: Anathula Sudhakar Vs. P. Buchi
Reddy (Dead) By LRs & Ors.
26. When, as per the discussions and observations made above, it has
already been held that, the tenancy of the plaintiff over the suit properties
has already been accepted by the defendant/State as per law through
documents, then, at this juncture, by applying the principles of law
{{ 33 }}
enunciated by the Apex Court in the above decision relied by the
defendant/State, it is held that, the suit for injunction vide O.S. No.17 of
1983-I simpliciter filed by the plaintiff in respect of the suit properties
against the defendant (State) for permanent injunction is maintainable,
because, his title over the suit properties is not under cloud as per law.
When there is a threat to the possession of the plaintiff over the suit
properties by the defendant (State), then, the plaintiff has right to sue for
injunction simpliciter against the defendant/State without praying for
declaration of title.
Therefore, it cannot be held that, the suit of the plaintiff for
injunction simpliciter is not maintainable under law without the prayer for
declaration of title.
So far as the Misc. Case No.9 of 2018 under Order 6, Rule 17 of
the CPC, 1908 filed by the respondent/State/defendant for amendment of
its written statement and Misc. Case Nos.10 of 2018 and 81 of 2018
under Order 41 Rule 27 of the CPC for adducing additional evidence as
per Annexures D,E,F & G are concerned,
It appears from the Para Nos.18 to 24 of the Judgment of the 1 st
Appellate Court in T.A. Nos.18 of 1994 that, the State (defendant) being
the appellant in the said T.A. No.18 of 1994 had filed the same nature of
{{ 34 }}
petitions under Order 6, Rule 17 and Order 41 Rule 27 of the CPC before
the 1st Appellate Court praying in that T.A. No.18 of 1994 for
amendment of the plaint and for adducing additional evidence making the
same prayers, those have been made in the present Misc. Cases vide
Misc. Case Nos.9,10,81 of 2018.
In the above Misc. Cases vide Misc. Case Nos.9,10 & 81 of 2018,
the appellant (State) has prayed for amendment of the written statement
in order to insert the matters relating to the acquisition of the suit land
through L.A. Case No.2 of 1963 and for adducing additional evidence
through the documents relating to the L.A. Case No.2 of 1963.
After hearing the same prayers of the defendant/State, the 1st
Appellate Court had rejected both the petitions under Order 6, Rule 17
and under Order 41, Rule 27 of the CPC of the appellant/State/defendant
assigning the reasons in Para Nos.23 and 24 in the Judgment of the 1st
Appeal vide T.A. No.18 of 1994 that, "none of the documents relating to
L.A. Case No.2 of 1963 attached with the petitions go to show about the
acquisition of suit land by the Government in L.A. Case No.2 of 1963.
Because, the said documents do not contain any notification under
Section 4 or declaration under Section 6 of the L.A. Act, 1894 with
reference to the suit plot. The said petitions under Order 6, Rule 17 and
{{ 35 }}
Order 41, Rule 27 of the CPC have been filed by the defendant (State)
after 15 years from the date of passing of the Judgment and Decree by the
Trial Court in the suit vide T.S. No.17 of 1984-I. The defendant (State) is
not diligent to produce materials, to support its plea contained in the
proposed amendment. For which, the petitions under Order 6, Rule 17
and Order 41, Rule 27 of the CPC filed by the appellant (State) were
found to be without merit and the 1st Appeal vide T.A. No.18 of 1994 can
be disposed of effectively on merit on the basis of the materials available
on record."
27. As per the provisions of law envisaged under Order 41, Rule 22 of
the CPC, the findings and observations made by the 1st Appellate Court in
Para Nos.23 & 24 in T.A. No.18 of 1994 concerning the rejection of the
applications of the State (defendant) under Order 6, Rule 17 and Order
41, Rule 27 of the CPC could have been challenged by the State
(defendant) through cross objection in this 2nd appeal, but, the defendant
(State) has not done so.
As per law, the State (defendant/respondent) without preferring
cross objection can also challenge such findings of the 1st Appellate Court
regarding the rejection of its petitions under Order 6, Rule 17 and Order
{{ 36 }}
41, Rule 27 of the CPC during argument of the appeal without filing cross
objection for the same.
When the right of filling cross objection in the 2nd appeal was
available for the State, but instead of availing such right to challenge the
findings and observations made by the 1st Appellate Court in rejecting its
petitions under Order 6, Rule 17 and Order 41, Rule 27 of the CPC, the
defendant (State) has filed the same nature of petitions under Order 6,
Rule 17 and Order 41, Rule 27 of the CPC through Misc. Case Nos.9,10
& 81 of 2018, again in this 2nd Appeal, then, the above 3 Misc. Cases of
the State/defendant are not entertainable under law.
In spite of the non-maintainability of the Misc. Case Nos.9,10 & 81
of 2018 of the respondent/State, the respondent/State/defendant is not
precluded under law to challenge the findings and observations made by
the 1st Appellate Court concerning the rejection of its petitions under
Order 6, Rule 17 and Order 41, Rule 27 of the CPC during the course of
arguments of this 2nd Appeal. For which, the learned Addl. Government
Advocate for the State/respondent argued for upsetting the findings of the
1st Appellate Court concerning the rejection of its petitions under Order 6,
Rule 17 and Order 41, Rule 27 of the CPC by the 1st Appellate Court.
{{ 37 }}
The law concerning amendment of the written statement as prayed
for by the defendant (State) in an appeal has already been clarified in the
ratio of the following decisions of the Apex Court and Hon'ble Courts:
I. 2017 AIR SC 1072:Satish Kumar Gupta Vs. State of Haryana
& Others.
CPC, 1908, Order 41 Rule 27--Additional evidence--Land
acquisition proceedings--Neither Trial Court refused to receive
the evidence nor it can be said that evidence sought to be adduced
was not available despite the exercise of due diligence--Evidence
not necessary to pronounce the judgment--Additional evidence
cannot be permitted to fill the lacuna or to patch up the weak
points in the case--Impugned order of High Court permitting
additional evidence order of remand, set aside.
II. 2018 (Suppl.) Civil Court Cases 460 (H.P.):Shri Moti Ram Vs.
Shri Ses Ram & Others.
CPC, 1908, Order 41 Rule 27--Additional evidence at appellate
stage--Additional evidence which plaintiff intends to produce on
record is not required by this Court for purpose of adjudication of
case--Incidentally, it is not the case of plaintiff that either of
Courts below refused to admit evidence which is now intended to
be produced by way of application--Even, said documents were
in the knowledge of plaintiff--No explanation was given for the
same--Present application is nothing but an attempt to place on
record said documents which plaintiff omitted to do so and to fill
up lacunae--Conditions of Order 41, Rule 27 CPC not fulfilled--
Application dismissed.
III. 2017 (8) All. DJ 498: Latif Khan & Another Vs. Civil Judge,
S.D., Bulandshahar & Others.
CPC, 1908, Order 41 Rule 27-- Additional evidence at appellate
stage--Documents sought to be produced by way of additional
evidence part of public record--However, application of
applicant is completely silent as to when applicant has derived
knowledge of documents--Moreover, if those documents were
part of public record, applicant by exercising due diligence he
could have been well aware of documents even before institution
of suit--Plea of applicant being illiterate does not satisfy
requirement to admit the same--Application rightly rejected.
{{ 38 }}
IV. 2019 AIR CC 3265 & 2019 (3) Madrass WN (Civil) 6:M.
Manimegalai & Another Vs. Chellammal & Another.
Additional evidence at appellate stage--Documents which
defendants propose to mark are in no way connected with suit
property--Such documents are irrelevant documents and not
material to facts in issue in the case--Even there is no pleading in
written statement regarding such documents--No reasons were
substantiated by defendants for not marking said documents
during trial process, which were very much available even during
the year 2007--Defendants have not stated in their affidavit as to
how documents help them--Application rightly rejected.
V. 2016 (2) Civil Court Cases 607 (Allahabad):Pramod Urf Raju
& Others Vs. State of U.P. & Others.
CPC, 1908, Order 41 Rule 27--Additional evidence at appellate
Stage--If evidence was already available with appellants but was
not filed knowingly, such evidences cannot be accepted in appeal.
VI. 2015 (1) Civil Court Cases 200 (Allhabad): Smt. Ganga Devi
(dead) Vs. Sri Bhagwan Dass & Others.
CPC, 1908, Order 41 Rule 27-- Additional evidence at appellate
Stage--Mere discovery of fresh evidence subsequent to decision
of lower court is not a ground for its admission in appeal, unless
appellate court requires that, evidence to enable it to pronounce
judgment or for any other substantial cause--Additional evidence
should not be permitted at appellate stage to enable a party to
remove certain lacunae and to fill in gaps.
VII. 2017 (Supp.) Civil Court Cases 141 (M.P.):Smt. Ramkuriya
Bai Vs. Smt. Kachra Bai (dead) & Others.
CPC, 1908, Order 41 Rule 27-- Additional evidence at appellate
Stage--In the present case it is not the situation that Court cannot
pronounce Judgment without additional evidence--Application
rightly rejected.
VIII. AIR 2012 (Madras) 269: S. Sornam Vs. N. Selvaraj.
CPC, 1908, Order 41 Rule 27-- Additional evidence at appellate
Stage-- Production of additional documents--First appellate
Court has discussed the merits of document sought to be
produced and only after coming to note that all documents are in
no way relevant to the case of defendant while dismissing I.A.,
dismissed the appeal also--Reasoning given by First Appellate
Court of disposing both I.As are integral part of impugned
{{ 39 }}
Judgment--Held, no prejudice caused to appellant--No error
whatsoever can be find fault with--Appeal dismissed.
IX. 2009 (4) Civil Court Cases 057 (P & H): M/s. General
Electronics Vs. Amrik Singh.
CPC, 1908, Order 41 Rule 27-- Additional evidence at appellate
Stage--Documents totally irrelevant--Application rejected.
X. 2009 (2) Civil Court Cases 153 (P & H): Baljinder Kaur Vs.
Rajesh Kumar.
CPC, 1908, Order 41 Rule 27-- Additional evidence at appellate
Stage--Evidence within knowledge not produced in the trial
court--Order dismissing application, upheld.
XI. 2012 AIR CC 2809 & 2012 (10) Law Digital.in-182 (Patna):
Rajendra Pd. Vs. Ajit Kr. Singh.
CPC, 1908, Order 41 Rule 27--Additional evidence at appellate
Stage--Evidence already on record sufficient for decision--
Additional evidence not decisive and conclusive in character--If
allowed it will prolong litigation--Additional evidence, not
allowed.
28. Here in this suit at hand, the fact finding court i.e. the 1 st Appellate
Court after taking the petitions under Order 6, Rule 17 and Order 41,
Rule 27 of the CPC of the defendant/State along with the proposed
documents sought to be introduced as an additional evidence into account
has held that, the defendant/State is trying to bring some documents
relating to the L.A. Case No.2 of 1963 into the record fifteen years after
the Judgment passed by the trial court, which is not permissible under law
and the said documents have no nexus/connection with the suit land and
the defendant/State having the said documents under its possession had
not filed the same during trial deliberately.
{{ 40 }}
When, the records of L.A. Case No.2 of 1963 were obviously
under the custody of the defendant-State and when as per judicial notice,
the defendant-State was fully aware about such documents, but in spite of
being fully aware about the same, the defendant/State had not produced
that documents before the trial court during the trial of the suit
deliberately and when, the evidence in the record are sufficient for the
effective adjudication of this 2nd Appeal, then, at this juncture, the
rejection to the petitions under Order 6, Rule 17 and Order 41, Rule 27 of
the CPC of the defendant/State by the 1st Appellate Court as per its
findings in Para Nos.23 and 24 of the Judgment of T.A. No.18 of 1994
cannot be held unreasonable.
29. Therefore, the findings and observations made by the 1 st Appellate
Court in Para Nos.23 and 24 of T.A. No.18 of 1994 in rejecting the
petitions under Order 6, Rule 17 and Order 41, Rule 27 of the CPC of the
defendant (State) have become acceptable under law and Misc. Case
Nos.9,10 & 81 of 2018 filed by the respondent for amendment of the
written statement as well as for adducing additional evidence are
dismissed/rejected and accordingly, the above 3 Misc. Cases vide Misc.
Case Nos.9,10 & 81 of 2018 filed by the respondent/defendant are
disposed of finally.
{{ 41 }}
The suit of the plaintiff (appellant) vide O.S. No.17 of 1983-I
before the trial court was a suit for permanent injunction simpliciter
against the State (defendant). It is very fundamental in civil law that,
possession of the suit land is the main consideration, while considering
the suit for injunction simpliciter filed by the plaintiff like the present suit
at hand.
As per the discussions and observations made above, it has already
been held that, the plaintiff is in possession over the suit properties, but
the defendant (State) is not in possession over the same.
When, the plaintiff has sought for injunction against the defendant
(State) in order to prevent the defendant/State from interfering in his
possession over the suit properties, as the defendant (State) is trying to
interfere in his possession over the suit properties, then, at this juncture,
the plaintiff is lawfully entitled for the decree i.e. permanent injunction
against the defendant (State).
When the Trial Court in its Judgment and Decree passed in O.S.
No.17 of 1983-I had restrained the State (defendant) permanently from
raising any construction or from interfering into the possession of the
plaintiff over the suit schedule properties, then, at this juncture, the 1st
Appellate Court should not have reversed (set aside) the said Judgment
{{ 42 }}
and Decree passed by the trial court in favour of the plaintiff in O.S.
No.17 of 1983-I through the Judgment and Decree passed in T.A. No.18
of 1994. For which, the Judgment and Decree passed by the 1 st Appellate
Court in T.A. No.18 of 1994 cannot be sustainable under law.
30. So, there is justification under law for making interference with the
Judgment and Decree passed by the 1st Appellate Court in T.A. No.18 of
1994 through this 2nd Appeal filed by the appellant (plaintiff).
31. Therefore, there is merit in the 2nd Appeal filed by the appellant
(plaintiff). The same must succeed.
32. In result, the 2nd Appeal filed by the appellant (plaintiff) is allowed
on contest, but without cost.
The Judgment and decree passed by the 1st Appellate Court in T.A.
No.18 of 1994 are set aside.
33. The Judgment and Decree passed by the Trial Court in O.S. No.17
of 1983-I are confirmed.
(A.C. Behera),
Judge.
Orissa High Court, Cuttack.
Rati Ranjan Nayak// Senior Stenographer
Date:07.05.2024
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack, India.
Date: 13-May-2024 18:15:19
