V. KRISHNA RAO DORA AND ORS. Vs. KOTINI SITARAM DORA AND ORS.
LAWS(ORI)-1973-7-25
HIGH COURT OF ORISSA
Decided on July 16,1973

V. Krishna Rao Dora And Ors. Appellant
VERSUS
Kotini Sitaram Dora And Ors. Respondents

JUDGEMENT

G.K. Misra, J. - (1.) PLAINTIFF 's case may be stated in short. S. Pitamber Dora, S. Ramaswami Dora and S. Chakrapani Dora were the intermediaries in Khas possession of the disputed agricultural lands. On 3rd of June, 1946 they sold the disputed lands by a registered sale deed (Ext. 1) for Rs. 2,000/ - to Plaintiff No. 2, the Karta of the family of the Plaintiffs and gave delivery of possession. Plaintiffs were thus the intermediaries in Khas possession of the disputed lands. In paragraph 3 of the plaint the Plaintiffs averred that their vendors and after the purchase they themselves were treating the disputed lands as their private lands. First Defendant K. Sitaram Dora is the brother -in -law of the vendors and in collusion with thew he got himself surreptitiously recorded as the tenant of the disputed lands though he was an attester to the sale deed (Ext. 1). Against this entry in the record -of -rights the Plaintiffs filed a revision before the Board of Revenue which was pending by the time the suit was filed in 1961. The Plaintiffs has filed an application on 16 -12 -1957, after vesting, under Section 8 -A(1) of the Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952) (hereinafter to be referred to as the Act) for settlement of fair and equitable rent in respect of the disputed lands which were deemed to be settled with them under Section 7 of the Act. On 19 -12 -1957 Defendant No. 1 filed a similar application. The Orissa Estates Abolition Collector (hereinafter to be referred to as the Collector) disposed of the application of the Plaintiffs on 9 -8 -1959 in their absence by reference to the record -of -rights showing that Defendant No. 1 was the occupancy tenant in respect thereof and as such the lands cannot be deemed to have been settled with the Plaintiffs. The Plaintiffs got notice of this order on 4 -2 -1961 in some other proceeding when a certified copy of the order was filed by Defendant No. 1. They accordingly applied for a certified copy of the same order but it was not supplied to them as the records were said to be untraced. The Plaintiffs could not accordingly file an appeal. They made an application before the Member, Board of Revenue, for directing the Collector to make appropriate enquiry. This application was sent by the Board of Revenue to the Additional District Magistrate, the Appellate authority against the Collector under Section 9 of the Act. The Additional District Magistrate made a thorough enquiry and directed remand of the case on the 13th of September, 1961 by his order Ext. 5. The Additional District Magistrate held that the Collector had disposed of the application of the Plaintiffs behind their back without giving them any opportunity. He treated the application before the Board of Revenue as an appeal and condoned limitation holding that there was sufficient cause. Ext. 5 was filed before the trial Court. As the proceedings before the Collector after remand had not come to a close, the Plaintiffs could not file the final order of the Collector in the trial Court and the same (Ext. 9) dated 14 -3 -1964 was filed before the Subordinate Judge by way of additional evidence. In Ext. 9 the Collector held that the Plaintiffs successfully established that they were intermediaries of the disputed lands in Khas possession on the date of vesting and as such the suit lands were deemed to be settled with them under Section 7(1) of the Act and that Defendant No. 1 had no occupancy right therein. The suit was filed by the Plaintiffs on account of a proceeding under Section 145, Code of Criminal Procedure which terminated in their favour on 15 -10 -1960 in the Court of the Magistrate 1st Class but ultimately decided against them in Criminal Revision No. 419 of 1950 wherein the High Court held on 10 -5 -1961 that Defendant No. 1 was in possession of the disputed lands on the date of the preliminary order. The Plaintiffs accordingly filed the suit for declaration of title and confirmation of possession on the plea that after the High Court passed the order in Crl. Revision No. 419 of 1960 the Plaintiffs had not been dispossessed and were continuing in possession. The second Defendant is an alienee from the first Defendant pendente lite and he filed an application for being impleaded as a party before the Subordinate Judge at the Appellate stage which was allowed. The case of the first Defendant is that he was an occupancy raiyat under the vendors of the Plaintiffs prior to Ext. 1 and he continued to be an occupancy raiyat subsequent to the sale and was paying Raj Bhag to the Plaintiffs after their purchase. Under Ext. 1 the Plaintiffs purchased only the Melawaram right but not the Kudiwaram right which vested in him. 'The disputed lands were not the private lands of the Plaintiff 's vendors or the Plaintiffs after their purchase. The first Defendant was all -through in possession and in view of the order passed by the High Court in the proceeding under Section 145, Code of Criminal Procedure that he was in possession on the date of the preliminary order the suit for confirmation of possession was not maintainable.
(2.) THE learned Munsif held that the first Defendant was in possession of the disputed lands and under Ext. 1 the Plaintiffs merely purchased the Melawaram right. On the finding that the disputed lands were private lands of the Plaintiffs he held that the sale under Ext. 1 was hit by Section 3 of the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948 (Orissa Act I of 1948) (hereinafter to be referred to as the 1948 Act). Be accordingly dismissed the Plaintiff 's suit. In appeal, the learned Additional Subordinate Judge held that the vendors of the Plaintiffs and after them the Plaintiffs were in Khas possession under Ext. 1 whereunder both the Melawaram and the Kudiwaram rights had been transferred by the vendors. He further held that Ext. 9, the order of the Estates Abolition Collector, holding that the Plaintiffs were intermediaries in Khas possession concluded the matter in favour of the Plaintiffs and that Ext. 1 was not hit by the 1948 Act. He accordingly decreed the suit. The learned Single Judge recorded the following conclusions: (i)The decree of the lower Appellate Court for confirmation of possession is not sustainable in the face of the final order under Section 145, Code of Criminal Procedure passed by the High Court declaring that the first Defendant was in possession on the date of the preliminary order. (ii) He did not express any final opinion as to whether the civil suit was barred under Section 39 of the Act. (iii) He also did not express any final opinion as to whether the Plaintiffs or the first Defendant were in possession of the disputed lands on the date of vesting. (iv) The disputed lands admittedly being the private lands of the intermediaries, Ext. 1 was hit by Section 3 of the 1948 Act and was void and as such the Plaintiffs cannot acquire any title thereunder. Whether the Plaintiffs can acquire a valid title under Ext. 1 is a matter which lies exclusively within the jurisdiction of the District Judge under Section 4(2) of the 1948 Act. The learned Single Judge dismissed the suit on the ground that the Plaintiffs shall have to establish their title under Ext. 1 before the District Judge and the same cannot be adjudicated by the ordinary Civil Court.
(3.) BOTH the points on which the learned Single Judge has expressed final opinion and dismissed the suit cannot be sustained.;


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