Orissa High Court

Omkarnand Purohit vs State Of Odisha on 29 July, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                          RSA No. 226 of 2018

        [In the matter of an appeal under Section 100 of the Code
        of Civil Procedure, 1908.
                                ---------------

        Omkarnand Purohit            ......          Appellant

                                    -Versus-

        State of Odisha              .....           Respondent

        Advocate(s) appeared in this case :-
        ________________________________________________________
           For Appellant    : Mr. K.A.Guru, Advocate

             For Respondent:   Mr. A.R.Dash, Advocate

        _______________________________________________________
              CORAM
                   JUSTICE SASHIKANTA MISHRA

                                JUDGMENT

29th July, 2025

SASHIKANTA MISHRA, J. The plaintiff is the appellant

against a reversing judgment. The suit filed by the

plaintiff for declaration of his right, title, interest and

confirmation of possession in respect of the schedule

land was decreed by the trial Court but reversed and

dismissed by the first appellate Court.

2. The plaintiff's case, briefly stated, is that one

Ramprasad Guru being the Lambardar Gountia of

village Pandloi in the district of Sambalpur executed

a registered permanent lease deed bearing No. 372

dated 22.11.1924 in favour of Haragovind Purohit, a

minor represented by his father guardian

Achyutanand Purohit and delivered possession of the

land. Said land pertains to Dewan Settlement Plot

Nos. 1, 2, 3, 8,340, 342 and 353 which correspond to

Hamid Settlement Plot Nos. 1, 514 and 527, the total

extent of land being Ac. 47.14 decimals. The minor

lessee paid land revenue to the Lambardar Gountia.

Some of the co-sharers of Lambardar Gountia

challenged the lease deed before the Deputy

Commissioner, Sambalpur in Revenue Case No- 5/9-

12 of 1925-26 but the same was dismissed on

13.07.1925. Achyutanand Purohit on behalf of his

minor son filed Revenue Case No.11/2-114 of 1926-

27 before the Tahasildar, Sambalpur for demarcation

of the lease hold land which was allowed by order

dated 21.06.1927. Haragovind Purohit possessed the

land after attaining majority. His father died on

31.08.1982 while he himself died on 11.09.2001.

During his lifetime, Haragovind Purohit executed a

Will on 10.09.1986 in respect of the entire lease-hold

property in favour of the plaintiff, who is his nephew.

The Will, which was unregistered was in the custody

of its scribe namely, Fakir Sahoo who handed over

the same to the plaintiff in the year 2004. As such,

the plaintiff succeeded to the property on his own

right, title and interest. The plaintiff further claims

that the suit schedule A land measuring Ac. 11.25

decimals corresponding to Hamid Settlement Plot No.

1 of M.S. Khata No. 119 corresponds to the lease-

hold land granted by the Lambardar Gountia but

was wrongly recorded in the name of the State

Government in Rakhit Khata as Gochar Kisam

behind his back. He therefore, filed OSS Case No.

186/2004 before the Member, Board of Revenue for

correction of ROR but said case was dismissed on

17.02.2007. It is further averred that the State

Government was never in possession of the suit land.

But taking advantage of the wrong recording in the

ROR, the defendants started De-reservation

Proceeding no.15 of 2004 to lease out the land to

IDCO for establishment of factories by dispossessing

the plaintiff. Hence, the suit.

3. The defendant-State, represented through the

Collector, contested the suit by filing written

statement disputing the plaint averments. It was

pleaded that the plaintiff is not in possession over

the suit land. The settlement operation, though

completed in the year 1988, neither the name of the

plaintiff nor of his testator was recorded. The record

of the demarcation case of the year 1926-27 is not

available in the office and the Member, Board of

Revenue rightly dismissed the case for correction of

ROR with regard to lease OSS No. 186/2004. It was

stated that the same was dropped as there is no

sufficient surplus land available in the village. It is

also stated that the sanction of lease in favour of

Haragovind Purohit is a fictitious story and no steps

were taken by the plaintiff or his predecessor to

record their names in respect of the suit land in two

successive settlements. The plaintiff is trying to grab

the Government land. There is even no note of

possession in favour of the plaintiff or his

predecessor in the ROR published during the Hamid

Settlement or the Major settlement.

4. Basing on the rival pleadings, the trial Court

framed several issues for determination out of which,

issue Nos. 4 and 5 being pivotal issues are

reproduced below:

"4. Whether the plaintiff has acquired any right, title and interest over A schedule land by virtue of a registered lease deed executed by Ex- Lambardar Gountia in favour of Hargovind Pujhari who in turn transferred the same in favour of the plaintiff by will.

5. Whether the defendant has any manner of right, title and interest by virtue of recording of land in H.S. and M.S."

Taking issue Nos. 4 and 5 together for consideration

the trial Court, basing on the settled position of law

regarding statutory presumption of correctness

attached to Wazib-ul-Arz held that the ex-Lambardar

Gountia was entitled to deal with the suit land and

accordingly leased out the same and other lands to

the extent of Ac. 47.14 decimals by virtue of

permanent lease deed dated 22.11.1924. At that time

the suit land had not been recorded Gochar land.

Further, admitting the tenancy, the Govt. had

demarcated the land as per order passed in

demarcation case and the Deputy Commissioner had

also dismissed the objection raised by the co-sharers

of the Lambardar Gountia. The trial Court thus held

that Haragovind Purohit had acquired valid right and

title over the suit land since 1924 and subsequent

recording in the name of the Government has no

bearing on the right of Haragovind Purohit. The trial

Court brushed aside the recording of the land in the

name of the State in the subsequent settlement on

the ground that settlement entries neither create nor

extinguish title. The trial Court, basing on the oral

evidence adduced, found that the plaintiff had also

proved his possession over the suit land. There was

flow of title from Haragovind to the plaintiff through

the unregistered Will. On such findings being

rendered on the main issues, the remaining issues

were answered accordingly in favour of the plaintiff

and the suit was decreed by declaring the plaintiff's

right, title, interest and his possession was

confirmed.

5. Being aggrieved, the State carried appeal to the

District Court. The first appellate Court first

considered whether title over the suit schedule land

had passed to Haragovind by virtue of the registered

lease deed dated 21.10.1924. Basing on the evidence

adduced, it was held that Ramprasad Guru being the

Lambardar Gountia had executed the registered

lease deed in favour of Haragovind Purohit, who was

a minor represented though his father guardian

Achyutananda Purohit. The first appellate Court

then referred to the definition of lease as per Section

105 of Transfer of Property. Act and in view of the

fact that there was no evidence regarding payment of

consideration money for the lease or of payment of

annual rent, the registered document cannot be

treated as lease within the meaning of Section 105.

The first appellate Court, referring to the provision

under Section 138 of Central Provinces Land

Revenue Act held that Ramprasad Guru being the

Lambardar Gountia had exceeded his power and

authority. Coming to the Wazib-ul-Arz, the first

appellate Court found that the land leased out was

Gochar land. The oral evidence including that of the

plaintiff (P.W.4) was also considered. The first

appellate Court did not place much reliance on the

dismissal of the case brought by the co-sharers

before the Deputy Commissioner as also the order

passed in the demarcation case for want of evidence

regarding actual demarcation having taken place.

The unregistered Will was also not acceptable as

valid document in view of the discrepancy in the

evidence regarding its possession prior to the

plaintiff's possession. There was also no evidence to

justify as to why the testator bequeathed the

property to the plaintiff, who is his nephew. On such

findings, the appeal was allowed by setting aside the

judgment and decree passed by the trial Court.

6. Being aggrieved, the plaintiff has preferred the

instant appeal which was admitted on the following

substantial questions of law:

"i) Whether the claim of the appellant is covered within the meaning of Section 138 of the Central Provinces Land Revenue Act, 1881 or under the provisions of Section 44 read with Section 2(6) of the Central Provinces Tenancy Act, 1898?

ii) Whether in the facts and circumstances of the case, the Lambardar Gountia had any right to grant permanent lease in favour of the plaintiff's predecessor in view of the fact that the land in question was of Gochar Kisam?

iii) Whether the finding of the First Appellate Court that the lease deed does not satisfy the requirement of section 105 of the Transfer of Property. Act is correct?"

7. Heard Mr. K.A.Guru learned counsel for the

plaintiff-appellant and Mr. A.R.Dash, learned AGA

for the State.

8. Mr. Guru, assails the impugned judgment of the

first appellate Court by submitting that the Wazib-ul-

Arz has been held to carry the presumption of

correctness and in the instant case, the certified

copy of it clearly proves that Ramprasad Guru was

the Lambardar Gountia of village Pandloi. The

Wazib-ul-Arz clearly mentions that the Lambardar

Gountia had right to settle raiyats in respect of waste

lands, village forest lands and Gochar lands except

few lands reserved for the Government. It also

mentions that no 'Nazrana' in cash or kind is payable

by the lessee for the lease. Therefore, according to

Mr. Guru, the finding that no consideration was paid

for the lessee is factually erroneous. It is also argued

that the reference to the provisions of Central

Provinces Land Revenue Act by the first appellate

Court is misconceived as the said Act is concerned

with collection of land revenue. It is the settled

position of law that the Lambardar Gountia in

villages of Sambalpur district had right to settle

raiyats in the village. In this context, Mr. Guru has

cited a judgment of a Full Bench of this Court in the

case of Gajraj Sahu vrs. State of Orissa, AIR 1971

Odisha I (F.B) and Bhabani Prasad Mishra and Ors

vrs. State of Orissa in Second Appeal no.-46 of

1968. Mr. Guru further argues that the finding

regarding the Will is also not tenable because two

sons of Haragovind Purohit were high ranking

defence personnel with each being entitled to ten

standard of acres of land and therefore, there was no

question of Haragovind Purohit owning excess land.

As regards the finding regarding order of the Deputy

Commissioner, Mr. Guru argues that the Deputy

Commissioner being a high ranked revenue authority

had passed an order which was never challenged in

the higher forum nor the order passed by the

demarcation case. As such, the settlement

authorities cannot supersede the order of the Deputy

Commissioner, and the settlement entries do not

create or extinguish title.

9. Per contra, Mr. A.R.Dash, learned State counsel

would argue that the documentary evidence on

record clearly reveals the Kisam of the land as

Gochar. Such fact was also admitted by the plaintiff

himself in cross-examination. Once it is established

that the land is of Gochar Kisam, the Lambardar

Gountia had no authority to grant permanent lease

as per Clause 4 of the Wazib-ul-Arz. Mr. Dash cites a

judgment of this Court in the case of Ganesh

Shankar Shukla (since dead) through LR's vrs.

State of Odisha and another, 2017 SCC Online

Ori 714. Mr. Dash further attempts to distinguish

the judgment of the Full Bench, cited by Mr. Guru,

by pointing out that the land in that case is Patita

which is different from Gochar. That apart, the

ingredients of lease as per Section 105 of TP Act

could not be established by the plaintiff as rightly

held by the first appellate Court. Mr. Dash concludes

his argument by submitting that the title of the so-

called testator being doubtful, the Will supposedly

executed by him cannot confer any title on plaintiff.

10. In view of the rival contentions as noted above, it

is evident that the first question that falls for

consideration is, whether the Lambardar Gountia

had the authority to lease out the land. The answer

to this lies in the document called Wazib-ul-Arz. In

the case of Avadh Kishore Dass vrs. Ram Gopal &

Ors, AIR 1979 SCC 861 it was held that-

"Wazib-ul-Arz is village administration paper prepared with due care and after due inquiry by a public servant in the discharge of his official duties. It is a part of the settlement record and statutory presumption of correctness attaches to it".

In the instant case, the Wazib-ul-Arz in respect of the

suit village was admitted evidence by the plaintiff

being marked as Ext.11. It shows that Ramprasad

Guru was the Lambardar Gountia of village Pandloi.

The legal position that Lambardar Gountia had no

right to transfer any interest over Gochar Kisam of

land is not seriously disputed by the plaintiff. It is

contended that the land leased out was not of

Gochar Kisam. In this regard the first appellate

Court has referred to the lease deed (Ext.1) and also

the Hamid Settlement ROR (Ext.12) to find that the

plot leased out was Gochar Kisam land. Most

significantly, the plaintiff being examined as P.W.4

admitted that the land leased out is mentioned as

Gochar land. The objection filed before the Deputy

Commissioner, Sambalpur in revenue Case No. 5/9-

12 of 1925-26 by one Balaram Sahoo against the

lease deed executed by Ramprasad Sahoo was

specifically on the ground that the land in question

was Gochar land being kept reserved for grazing of

village cattle. Though the Deputy Commissioner

dismissed the case, yet it as with the finding that no

portion of the lease land had been recorded as

Gramya Jungle but without recording any finding as

to if the same was of Gochar Kisam or not. The first

appellate Court therefore rightly brushed aside the

order of dismissal of the Deputy Commissioner.

Further, the first appellate Court, basing on the oral

and documentary evidence has that the Kisam of the

land is Gochar. Nothing has been placed before this

Court to demonstrate as to how such finding of fact

is wrong, erroneous or perverse. In the case of

Ganesh Shankar Shukla (supra) this Court held as

follows:

"10. Wajib-ul-arz recognizes a right of a cultivator in certain circumstances to the house site which may include right of transfer in the central province. So far as non-agriculturists are concerned, alienable right of property may also be conferred upon a cultivator of labour class by an agreement made with the lambardar and the punches. Admittedly the kissam of the land is Gochar. There is no evidence on record that the father of the plaintiff was an agriculturist. Clause-1 of Wajib-ul-arz, Ext.8, provides that all Patita lands which are not used for the purpose of agriculture shall be the property of the Government. The land mentioned in Wajib-ul-arz is recorded as gochar and forest. No person shall possess the same in the absence of a written permission from the Deputy Commissioner. Clause-2 provides that the villagers shall graze their cattle over Rakhit land and can collect fire wood and wood for their use and construction of house. Clause-3 provides Lambodar and co- sharers can cultivate the Patita land or lease out the same to the raiyat or induct the tenant. No fee can be collected for possession of the land. On a bare reading of Clause-4 of Wajib-ul-arz, it is evident that Lambodar had no authority to lease out the Gochar land. Reliance placed on the lease deed vide Ext.2 is totally misplaced. Since Lambodar had no authority to lease out the Gochar land, any deed executed by him can not confer any title. After promulgation of the O.E.A Act, 1951, all communal lands and porambokes vested in the State under Sec. 5(a) of the O.E.A Act free from all encumbrances."

Thus, even though the Lambardar Gountia had

executed the registered lease deed in favour of the

predecessor-in-interest of the plaintiff, the same

would not convey any title. Consequently, the flow of

the title claimed by the plaintiff automatically falls to

the ground for the same reason that the Will

supposedly executed by the plaintiff predecessor in

his favour would also have no sanction of law for

being accepted as a valid conveyance of title.

11. It has been argued that the State acting through

the Tahasildar had recognised the tenancy created

by the lease for which the demarcation case was

allowed but the first appellate Court found no

evidence whatsoever of any demarcation having

actually been made. In fact, the only order passed in

the demarcation case reads as follows:

'Received report. Demarcation made. Filed.'

The first appellate Court thought it prudent not to

place any reliance on the order passed in

demarcation case, which this Court fully concurs

with. Thus, this Court holds that the Lambardar

Gountia had no right to grant permanent lease in

favour of the plaintiff's predecessor. The substantial

question of law No.1 is answered accordingly.

12. As to the finding of the First Appellate Court

that the registered lease deed does not satisfy the

requirements of a valid lease as per Section 105 of

Transfer of Property. Act, it has been argued that the

lease deed itself mentions that no 'Nazrana' would be

paid either in cash or in kind for the lease and

therefore, the question of there being any evidence of

any revenue being paid by the lessee to the lessor

does not arise. This Court is unable to accept the

argument as above for the reason that not only that

there is no evidence of any consideration being paid

for the lease but also the claim that annual rent at