STATE OF ORISSA Vs. RAMESH CHANDRA SWAIN
LAWS(ORI)-2021-4-9
HIGH COURT OF ORISSA
Decided on April 08,2021

STATE OF ORISSA Appellant
VERSUS
RAMESH CHANDRA SWAIN Respondents

JUDGEMENT

BISWANATH RATH,J. - (1.) The review petition under Order 47 Rule 1 of the C.P.C. at the instance of the State-Respondent arises out of the judgment dated 27.06.2012 passed in Miscellaneous Appeal No.994 of 2001 by the High Court thereby reversing the judgment in T.A. No.4/17 of 2001/1992 dated 12.10.2001 by the learned District Judge, Bhubaneswar interfering in a judgment and decree passed by the trial Court in O.S. No.203 of 1988-I.
(2.) Short background involved in this case is that the Respondent joining together filed O.S. No.203 of 1988-I in the Court of Munsif, Bhubaneswar making the State of Orissa as Defendant. The suit was filed for declaring the Plaintiffs as the owners over the land under their possession and for correction of the Record of Rights accordingly and thereby intimating the Collector, Puri to correct the Record of Rights involving the suit scheduled property therein; the property more particularly Khata No.38, Mouza-Bomikhal, Plot Nos.13 to 18 also giving therein the corresponding Khata No.109 under Mouza-Bomikhal bearing corresponding plot nos.25, 26, 32 to 36, 42 to 47, 50 to 57. The Respondents herein as Plaintiffs had their case that the Plaintiffs 1 & 2 having four ana share, the Plaintiffs 9 to 17 having five ana four paise share and the Plaintiffs 18 to 21 having two anas eight paise share in the suit property, were also recorded as such in the Record of Rights. Their ancestors being the owners were in possession and as such were recorded as Sabik Record of Rights. It is claimed that after demise of the ancestors the Plaintiffs as the successors and owners remained in possession over the same. It is further claimed that the suit plots 11 to 18 and 370 & 371 under Khata No.38 in Mouza Bomikhal were recorded in the Record of Rights published in the year 1962 in the name of their predecessors and the Plaintiffs continued in paying rent. Plaintiffs also claimed that they have occupancy right and were recognized as such with acceptance of the rents by the vendors. Even the plaintiffs were paid with compensation in respect of the plot nos.12 & 18 under khata no.38 involving the land acquisition proceeding bearing L.A. Case No.26/73. The Plaintiffs claimed that though an area of Ac.0.069 decimals out of plot no.18 were acquired, balance Ac.0.25 decimals involving the plot no.18 were continued to remain in possession of the Plaintiffs. It is, on the premises that their occupancy was never terminated, nor their rights even acquired validly, further the Government having accepted rent and acquiring a portion out of the recorded plot in 1973 is estopped to say that the plaintiffs are not the owners and in possession. While claiming that the Plaintiffs raised crops from the disputed plot during 1968-70, the certificate proceeding was initiated against the Plaintiffs for arrear rent in respect of the Khata no.38. Whereafter the Plaintiffs continued to pay rent till 1982-83. It is alleged that during current settlement the Defendant unreasonably claimed title over the property and the Settlement Authorities illegally recorded the name of the defendants over the settled property, in spite of Plaintiff's resistance to the same. It is, in the above premises, Plaintiffs claimed that the Defendants having no manner of right, title over the disputed property attempted to disturb the Plaintiffs and as such the Plaintiffs got compelled to file suit for correction of the Record of Rights giving cause of action to be 24.04.1988. The suit was registered as O.S. No.203/1989-1. Pursuant to the notice the Respondent-Defendants contested the matter by filing written statement. The State-Defendant while denying and disputing each of the averments and claim contended that the scheduled property are purely Government land after being acquisitioned by Government during 1962 as per the Land Acquisition proceeding No.9/62-63. Since the Record of Rights was prepared before initiation of the land acquisition proceeding, the land somehow stood in the name of the Plaintiff's predecessor Daitari Sahu and others. For the land acquired through the land acquisition proceeding no.9/62-63 there has been correct preparation of the Record of Rights, subsequently giving a statement of the land acquired in tabular form. The State Government justified being the owner of the land involving the disputed property. It is clearly claimed by the State that the Plot Nos.12 to 18 have been duly acquired. It was claimed that for not being the owner of the disputed property, mere payment of rent cannot create right, title or extinguish valid title involving the suit land. The Defendants reiterated regarding plot nos.12 to 16 corresponding to plot nos.65, 66 & 67. The State claimed that the whole area of plot nos.12 & 18 were acquired during 1962 as per the L.A. Proceeding No.9/62-63, but however, after final publication in 1962, mistakenly there has been acquisition of some further plots in the year 1973, which is claimed to be an illegal double benefits to the Plaintiffs. The State reiterated that in fact the whole land was already acquired following due process of law and the predecessors of the Plaintiffs have already received the compensation. The State, thus, contended that there is right rejection of the claim of the Plaintiffs for correction of the record of rights involving the disputed property, requiring no interference by any Court of law. The State completely denied the claim of the Plaintiffs to have raised crop over the disputed property. It is, in the above premises, the Defendant-Respondent i.e. the present Review Petitioner sought for dismissal of the suit. Upon entering into trial the Trial Court framed the following issues: "1. Is the suit maintainable? 2. Is there any cause of action for the suit? 3. Whether the entire suit properties have been acquired by the Government of Orissa in L.A. Case No.9 of 1962 or only some portion have been acquired in L.A. Case No.25 of 1973? 4. Whether the Plaintiffs are the rightful owners of the suit property, having right, title, interest and possession over it? 5. If the Plaintiffs are entitled to the reliefs prayed in the suit?" The Plaintiffs examined witnesses and also exhibited documents marked as Ext.1 to Ext.5/a. Similarly the defendants while examining witnesses, also exhibited documents marked as Ext.A to Ext.B/1. Consequent upon completion of the trial based on the pleadings and evidence of the parties the Trial Court vide its judgment dated 28.10.1991 and decree dated 11.11.1991 decreed the suit holding that the Plaintiffs are the owners of the suit property and thereby directed the Settlement Authority to correct the record of rights accordingly. It appears, in the suit the State-Defendant filed document marked as Ext.A, A/1 & A/2, which relates to Land Acquisition Case no.9/61-62. It further appears, these documents have been admitted by the Trial Court without objection. Being aggrieved, the G.A. Department of the State of Odisha filed appeal before the learned Additional District Judge, Bhubaneswar vide T.A. No.17 of 1992. The lower Appellate Court hearing the appeal on contest by order dated 16.08.1993, however, dismissed the appeal due to barred by limitation. It appears, being aggrieved by the said dismissal order on the ground of limitation, the Defendant-Appellant filed Civil Revision No.272/1993. This High Court by its order dated 12.07.1995 rejected the Civil Revision No.272/1993 on the premises of failure of the Defendants in explaining the delay. Being aggrieved by the order of dismissal in the Civil Revision, the Defendants carried SLP(C) No.7912 of 1996 before the Hon'ble Apex Court. It appears, the Hon'ble Apex Court by its judgment dated 5.09.1997 allowed the SLP(C), but however subject to payment of a cost of Rs.20,000/- in restoration of the T.A. There also arose some dispute with regard to non-payment of the cost in the meantime and the misc. case for condonation of delay was again allowed, subject to however payment of additional cost of Rs.10,000/-. The matter again entered into another SLP vide SLP (C) No.4970 of 2000 regarding non-payment of cost issued by order dated 5.01.2001 and while restoring the T.A. the Hon'ble apex Court directed the Additional District Judge to dispose of the appeal within a period of six months. While the matter stood thus, on 12.10.2001 the Additional District Judge, Bhubaneswar allowed the T.A. No.17/92 (4 / 2001) recording his finding for retrial of the suit and affording the defendants also an opportunity to amend the written statement bringing the land acquisition proceeding as well as other relevant notifications, pleadings relating to initiation of land acquisition proceeding and also giving opportunity to the Plaintiffs to controvert the same. Being aggrieved with the judgment of the Additional District Judge, Bhubaneswar in remanding the suit vide T.A. No.17 of 1992 the Plaintiffs preferred M.A. No.994 of 2001 contemplating that the Additional District Judge, Bhubaneswar has mechanically exercised power under Order 41 Rule 23-A of the C.P.C. The High Court by its judgment dated 27.06.2012 allowed the Miscellaneous Appeal No.994 of 2001 holding that there has been mechanical exercise of power by the lower Appellate Court and thereby, illegally reopened the suit and while observing so, the High Court also passed a judgment declaring the judgment and decree in the suit vide O.S. No.203 of 1989 (I) becomes valid, which resulted filing of the present review by the Plaintiff-Appellants.
(3.) It is apt to indicate here that the Review No.422 of 2019 was filed undoubtedly with 2195 days of delay. The delay in preferring review was condoned by this Court by order dated 23.12.2019 which order being challenged in the Hon'ble apex Court, the Hon'ble apex Court dismissed the SLP (C) No.3086 of 2020.;


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