LAWS(ORI)-2012-5-38

KHALLI SAHU Vs. STATE OF ORISSA

Decided On May 17, 2012
KHALLI SAHU Appellant
V/S
STATE OF ORISSA Respondents

JUDGEMENT

(1.) THIS Second Appeal arises out of a confirming judgment in a suit filed by the appellant for declaring that the retracted action taken by the succeeding Tahasildar recalling the orders of his predecessor, on the face of it, is null and void and for declaring the right, title, interest and possession of the plaintiff over the suit land with a consequential relief for permanent injunction against the defendants restraining them from interfering with his right, title, interest and possession over the suit land.

(2.) PLAINTIFF 's case is that he is an ex -army personnel and served in the Indian Army in the rank of Sepoy from 26.8.1963 to 21.8.1969 in the Bihar Regiment and also a permanent landless resident of Berhampur town. The plaintiff also pleaded that on 26.8.1963, during emergency recruitment, in the exigency of the Chinese War, his date of birth was recorded as 26.8.1963 so as to suit the norms of the recruitment to show him as 18 years of age though he was 21 years of age by then and the plaintiff could not raise any strenuous protest in that regard. The father of the plaintiff was in possession and enjoyment of a piece of land measuring Ac. 1.20 cents, the nature of which was "Tank Paramboke", pertaining to sabik survey no. 182/2 of Bhapur village. In course of time, the character of the land was changed and it was turned to cultivable land with a house constructed by his father, which was used by his father for the purpose of residence and also as a farm house. The plaintiff's father was possessing the suit land long prior to 1949 to the knowledge of one and all including the revenue authorities. In 1961, when the father of the plaintiff was unable to look after the cultivation of the land due to old age and prolonged ailment, all the rights and interest accrued on account of his long standing possession was thereafter exercised by the plaintiff and since then, the plaintiff is in continuous possession of the land and the house standing thereon and is cultivating the said land by hired labourers. When he was serving in the Indian Army, he entrusted the land to the tenants on oral lease, who were paying the produce to the plaintiff through his father.

(3.) IN course of time, the value of the said land has increased. In the year 1970, the Revenue Inspector of Bhapur Circle obstructed the plaintiff from possessing the land and on his report, the Tahasildar started an encroachment case being L.E.C. No. 578 of 1971 against the plaintiff, whereupon an enquiry was conducted by the Tahasildar, who found that the encroached area had itself lost its old character and that the plaintiff is a poor and landless person as well as an ex -army personnel entitled to get the land settled in his favour and thus, passed order directing his office to send the record to the Sub -Divisional Officer for the said purpose. The order was passed on 5.11.1979. As per order dated 10.5.1982, the Tahasildar also invited objections from general public as well as the Municipality, but none raised any objection for settlement of the land in favour of the plaintiff. In the meantime, there was a bifurcation of the village and the area was renamed as Sashibhusanpur under the revenue circle of Haridakhandi and the Survey No. 182/2 measuring Ac. 1.20 cents was changed into hal plot Nos. 1783/1, 1784 and 1785/1 and the classification was changed into some other character. The order of the Tahasildar passed earlier, to settle the land in favour of the plaintiff was not adhered to and the subsequent Tahasildar in the office in the said proceeding for eviction of the plaintiff, passed an order of eviction on 26.9.1986. The plaintiff challenged the said order of eviction in an appeal before the Sub -Divisional Officer, Berhampur and thereafter, being unsuccessful, in a revision before the Additional District Magistrate, Ganjam Berhampur and again in revision case before the Revenue Divisional Commissioner, Berhampur, but in vain.