GOPINATH DEBA BIJE Vs. BISWANATH MISRA
HIGH COURT OF ORISSA
Gopinath Deba Bije
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B.K.Ray, J. -
(1.) THE Plaintiff in three rent suits claimed arrear rent against the Defendant who is recorded as a Sthitiban tenant in respect of the land for which arrear rent was claimed in the suits. Rent suit No. 4064 was for recovery of Rs. 152.52 as arrear rent for plot Nos. 454 and 455 -under khata No. 879. Rent suit No. 4065 was for recovery of Rs. 117.65 for plot Nos. 2932, 3387 and 3440 under Khata No. 878. Rent suit No. 4066 was for recovery of Rs. 21.42 for plot No. 588 under khata No. 877.
(2.) THE common defence in all the suits was that the Plaintiff was a Tanki Baheldar, in other words, an intermediary in respect of the land in suit which appertained to the estate of the Plaintiff. On the vesting of the estate by Gazette notification dated 13 -4 -1961, the Plaintiff lost its intermediary right and consequently its right to collect rent from the Defendant for the land in suit. This plea was accepted by the trial Court which accordingly dismissed the three suits by a common judgment. The Plaintiff, there after, carried two appeals before the District Judge, Puri. These two appeals related to Rent Suit Nos. 4064 and 4065. In the Court below, the Plaintiff filed the order of the Tribunal under O.E.A. Act (hereinafter to be referred to as the 'Act') dated 24 -4 -1965 in E.A.A. Case No. 25 of 1963 and a certified copy of the Plaintiff's petition before the Tribunal. The Court below accepted the documents as additional evidence. In spite of this, it dismissed the two appeals by a common judgment. It is against this judgment and decree, two Second Appeals have been filed, viz., Nos. 317 and 318 of 1969. As these two second appeals are between the same parties and involve common questions of law and fact, they have been tagged and heard together with the consent of learned Counsel for both parties. This judgment, therefore, will govern both the appeals. The Appellant has filed a certified copy of judgment in three suits between the same parties for the very same lands which are the subject -matter of the present two appeals to show that on an earlier occasion in spite of the fact that the Appellant's estate had vested on 13 -4 -1961, its suits for recovery of rent for period subsequent to 13 -4 -1961 have been decreed in its favour. Along with the aforesaid document, the Appellant has filed a common application for both these appeals under Order 41, Rule 27 Code of Civil Procedure for accepting the document as additional evidence in this Court in both the appeals. This application is resisted by learned Counsel for Respondent on the ground that a case for acceptance of additional evidence has not been made out and that the Respondent will be seriously prejudiced if the aforesaid document is accepted.
(3.) THE first point which arises for consideration is whether during the period of which arrear rent has been claimed by the Appellant against the Respondent, the former was the landlord under whom the latter was a tenant in respect of the lands which are the subject matter of these appeals. There is no dispute that the Appellant was an intermediary under whom the Respondent was an occupancy raiyat for the land prior to the vesting of the estate. There is also no dispute that by notification dated 13 -4 -1961 under Section 3 -A of the Act, the estate of the Appellant vested in the State of Orissa. Consequently, the Appellant ceased to be an intermediary since 13 -4 -1961 and lost all right to realise rent from the Respondent for the land in question from the aforesaid date. The period for which rent is claimed by the Appellant in the cases before me is subsequent to the vesting of the estate, and hence, it has no right to realise rent from the Respondent. Mr. L.K. Dasgupta learned Counsel for Appellant, however, contends that by the final order passed by the Tribunal under Section 13 -G in Chapter II -A of the Act, the estate of the Appellant had been exempted from vesting notification under Section 3 -A of the Act and that even before final order of the Tribunal as soon as there was publication of claims and references under Section 13 -E of the Act, by virtue of the provision contained in Section 13 -F of the Act, the estate of the Appellant was taken out of the vesting notification. This contention of Mr. Dasgupta has no substance for the following reasons; Chapter II -A of the Act relating to trust estates was incorporated into the Act by Orissa Act 5 of 1963 Section 13 -A(e) of the Act defines a 'trust estate'. It is admitted that the Appellant's estate is a trust estate as per this definition, There is also no dispute that the vesting notification under Section 3 -A of the Act, so far as the Appellant's estate is concerned, is dated 13 -4 -1961 and that from this date the Appellant's estate vested. The question is if under the provisions contained in Chapter II -A of the act introduced into the Act in 1963, the vesting of the Appellant's estate which took place on 13 -4 -1961 could be annulled. Section 13 -D of the Act clearly provides that a trustee in respect of a trust estate shall upon the issue of the notification under Section 3 -A of the Act make an application in the prescribed form and manner to the Tribunal within three months from the date of such notification claiming the estate to be a trust estate. It is, therefore, clear from the above provision that Chapter II -A of the Act has no application to the trust estate of the Appellant which vested in 1961. Chapter II -A of the Act is not retrospective.;
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