PAMI BISOYI Vs. LAKSHMANA BISOYI

JUDGEMENT

(1.) The unsuccessful plaintiffs have filed this Letters Patent Appeal against the judgment of a learned single Judge of this Court who has affirmed the judgment and decree of the learned Subordinate Judge dismissing the suit for declaration of their title over the suit land, for recovery of possession of the same from the receiver and for refund of Rs. 10,100/-kept in deposit in the Criminal Court.

(2.) The case of the appellants is that the suit land admeasuring A.10.47 cents situated in the erstwhile Dharokote Estate was the occupancy holding of their grandfather late Bhabani (Ranjit) Bisoi, as occupancy raiyat Bhabani was paying rajbhag to the ex-J amindar of the said estate. Subsequently, the rajbhag payable in respect of the suit land was granted as inam to Bhabani who in consideration of the said grant was paying favourable rent called 'Katubadi' to the ex-Zamindar. Under this state of affairs, Bhabani became the owner in possession of the suit land in two capacities, one as occupancy raiyat and another as the holder of the inam. Following the death of Bhabani, the properties of the family were partitioned and the suit land come to be allotted to Gangadhar, father of plaitniffs 1 to 4 who since then was in exclusive possession along with his sons. At the time of survey and settlement, the suit land was recorded in the name of Gangadhar. On 15-5-1917 Gangadhar mortgaged the suit land to one Bishnu Swain. As the debt was not satisfied the mortgagee, Bishnu Swain commenced O.S. No. 101 of 1928 in the Court of District Munsif, Aska and obtained a decree against the mortgagor Gangadhar for sale of the suit land. In execution of the decree, Bhagirathi Swain, son of the aforesaid mortgagee purchased the suit land in Court auction on 10-1-1934 and got delivery of possession of the same on 27-1-1937. The original defendant No. 1, his brother Dinabandhu along with his father Ghana Bisoi created disturbances in the peaceful possession of the said auction purchaser which gave rise to initiation of a proceeding under S. 145, Cr. P.C. vide M.C. No. 31 of 1937 in the Court of Sub-Divisional Magistrate, Chamsur Division. In the said case, the possession of the auction purchaser Bhagirathi Swain was declared. On 4-4-1939 Bhagirathi Swain sold the suit land to plaintiffs under registered sale deed for valuable consideration and the vendees i.e. the plaintiffs were put in possession. They have, thus, acquired title over the suit land as inamdar of the rajbhag as well as, as occupancy raiyat. Although plaintiffs had title and were in continuous possession, the suit land was recorded wrongly in the name of the defendants in the current settlement operation (1950-5,1) without their knowledge. The estate of Dhurakote vested in the State of Orissa by virtue of a notification dated 1.-6-1953 and after the vesting the defendants made mischievous application to the Collector to accept the rent from them in respect of the suit land. Their request was, however, not accepted by the Collector. Thereafter, the defendants filed applications vide C.P. Nos. 121 of 1958 and 122 of 1958 for settlement of rent in respect of the suit land under S. 8A of the Orissa Estates Abolition Act, 1951 (hereinafter referred to as 'the O.E.A. Act'). Plaintiffs on an erroneous impression also filed applications vide C.P. Nos. 191 of 1958 and 942 to 948 of 1958 for settlement of rent. The Tahasildar without properly considering the applications passed order on 5-11-1964 settling the suit land with the defendants. Plaintiffs filed appeal challenging the order of the Tahasildar which did not yield result in their favour. Plaintiffs being the occupancy raiyat in respect of the suit land, the provisions of the O.E.A. Act did not affect their rights as such and the .order of the Tahasildar is without jurisdiction. On the strength of the illegal order passed under S. 8A of the O.E.A. Act in their favour, the defendants threatened to create disturbances in the peaceful possession of the plaintiffs which gave rise to commencement of proceeding under S. 145, Cr. P.C. in Misc. Case No. 143 of 1964. The receiver appointed in the said proceeding deposited a sum of Rupees 10,190/- towards the value of the crop harvested during the years 1964 to 1969. As the order of the Tahasildar under S.8-A of the O.E.A. Act threw cloud on the title of the plaintiffs, they brought the suit claiming the reliefs already indicated.

(3.) The case of the defendants as pleaded in the written statement is total denial of the title and possession of Bhabani Bisoi, Gangadhar Bisoi and the plaintiffs over the suit land. The mortgage said to have been done in the year 1917, the so-called Court auction and the sale made in the year 1939 in favour of plaintiffs are collusive and nominal transactions. Neither Gangadhar Bisoi nor the mortgagee nor plaintiffs ever possessed the suit land at any time. The suit land was originally granted as Bhalaloki noukari inam to Bharat (Ranjit) Bisoi by the ex-Zamindar of Dharakote estate in the year 1919. He rendered service and enjoyed and possessed the suit land till his death. After his death, his son Khalli and his brother Ghana continued to render services to the ex-Zamindar and enjoyed the land in question and after their death, the original defendant No. 1 Baji and Maheswar (defendant No. 2) held the land as service holder. In the year 1930, the names of Khalli and Ghana were recorded correctly and the R.O.R. was granted in their favour in the year 1944. After vesting, on their applications the Tahasildar settled the land with the defendants with right of occupancy which was made after through and elaborate enquiry which was seriously contested by the plaintiffs. Nowhere in the said proceeding before the Tahasildar the plaintiffs raised the plea of their right of occupancy nor have they taken the stand that the suit land was originally raiyati land. In view of the orders passed by the O.E.A. authorities, the suit is hit by S. 29 of the O.E.A. Act.