HARAPRIYA BISOI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS writ application has been filed for a direction to the opposite parties, specifically opposite party No.3 - The Tahasildar, Bhubaneswar, to declare the tenancy right of the petitioner over the land in question and to accept rent in respect of the same and for a further declaration that the State - opposite parties or its functionaries have no right, title and interest over the land in question and for a further direction not to interfere with the right, title, interest and peaceful possession of the petitioner over the land in question.

(2.) THE case of the petitioner is that the suit land is covered under Sabik Khata No.918 and originally belonged to the ex -intermediaries Choudhury Chakradhar Mohapatra and others. Choudhury Chakradhar Mohapatra and Ramakrushna Mohapatra were having 12 annas share and another ex -intermediary Indramani Roul was having 4 annas share in the said holding. Choudhury Chakradhar Mohapatra and Ramakrishna Mohapatra, who were having 12 annas share, with consent of Indramani Roul granted lease of Ac. 15.00 decimals from Sabik Plot No. 4047, Ac. 13.30 decimals from out of Sabik Plot No.1726 and Ac.25.65 decimals from Sabik Plot No.1036 from out of Sabik Khata No.918 in favour of one Smt. Kamala Devi under an unregistered lease deed (Hata Patta) on 20th of March, 1933 and delivered possession thereof. Rent was also accepted from Smt. Kamala Devi in respect of the lease hold land. It is the further case of the petitioner that in the year 1954 the estate of intermediary vested in the State under Section 3 of the Orissa Estates Abolition Act, 1951 (for short, "the Act"). On the date of vesting and prior to that, Smt. Kamala Devi was in peaceful possession of the disputed land as a tenant and as such, she became a deemed tenant under the State under Section 8(1) of the Act. The ex -intermediaries on vesting of the land submitted Ekpadia in favour of Smt. Kamala Devi in respect of the disputed lands as well as some other lands and accordingly, tenancy ledger was opened through the Tahasildar, Cuttack and rent was collected from Smt. Kamala Devi from 1954 to 1967. After vesting in 1954 till 1967, there was no dispute so far as the tenancy right of Smt. Kamala Devi is concerned. Mouza Gadkan under which the disputed land is located was transferred from Cuttack district to Puri district and accordingly came under the jurisdiction of the Tahasildar, Bhubaneswar. On 4.7.1967, the Tahasildar, Sadar, Cuttack reported to the S.D.O., Cuttack that the Hata Patta granted by the ex -intermediaries in favour of Smt. Kamala Devi had been antedated and is a fraudulent one. On the basis of such report, the S.D.O., Cuttack who is the O.E.A. Collector initiated a proceeding under Section 5(i) of the Act against Smt. Kamala Devi. After transfer of the mouza from Cuttack district to Puri district, the case was also transferred to the Court of the S.D.O. -cum - O.E.A. Collector, Bhubaneswar and was re -numbered as O.E.A Case No.4 of 1970. In the said O.E.A. Case, the O.E.A. Collector after inquiry and collecting evidence directed for cancellation of the lease granted in favour of Smt. Kamala Devi by order passed in January, 1971. Said order of the O.E.A. Collector cancelling the lease was challenged by Smt. Kamala Devi in appeal and the appeal having been dismissed, she preferred a writ application before this Court in O.J.C. No.882 of 1974. This Court disposed of the said writ application on the 29th of October, 1976 setting aside the order of the O.E.A. Collector and that of the appellate authority and remitted the matter back to the Court of the O.E.A. Collector for fresh hearing. After remand, the O.E.A. Collector disposed of the case on the 24th of April, 1989 holding that the deed of lease being prior to 1.1.1946 and it being a genuine document, Smt. Kamala Devi should be accepted as a tenant but she having remained in possession of only Ac. 7.00 decimals of land out of the total lease hold area, rent could be accepted in respect of the said Ac. 7.00 decimals of land. Holding thus, the O.E.A. Collector sent the records to the Member, Board of Revenue for concurrence. During pendency of the proceeding, Smt. Kamala Devi expired and was substituted by her son and legal heir Kishore Chandra Patnaik. Challenging the order dated 24th of April, 1989 passed by the O.E.A. Collector, aforesaid Kishore Chandra Patnaik filed a writ application before this Court in O.J.C. No.2063 of 1992. Said writ application was disposed of on 2.11.1992 quashing the order of the O.E.A. Collector as well as the proceeding initiated before the O.E.A. Collector and before the Member, Board of Revenue on the finding that in course of inquiry the O.E.A. Collector having found that the lease was prior to 1.1.1946 and the deed is a genuine document, it had no jurisdiction to proceed with the inquiry any further and under the provisions of the Act the proceeding should have been dropped. The aforesaid judgment of this Court was not challenged by the State and accordingly the same attained finality. According to the petitioner in view of the aforesaid judgment of this Court, late Kamala Devi and thereafter her son Kishore Chandra Patnaik are deemed to be tenants under the State under Section 8(1) of the Act. It further appears from the writ application that during the pendency of the O.E.A. Case, G.A. Department of the State Government got the suit land recorded in its favour in the record -of -rights of 1974. In view of the above, in spite of the judgment delivered by this Court in O.J.C. No.2063 of 1992, rent was not accepted from Kishore Chandra Patnaik. Finding no other way, Kishore Chandra Patnaik filed O.E.A. Misc. Case No.35 of 1999 before the Tahasildar, Bhubaneswar for acceptance of rent, but the Tahasildar expressed his inability to accept the rent on the ground that the land stood recorded in the name of the State in the 1974 record -of -rights and he had no jurisdiction to correct the record -of -rights. While the matter stood thus, on 6.3.2000 Kishore Chandra Patnaik who was in possession of the disputed property and other tenanted lands sold the same to the petitioner under a registered sale deed and delivered possession thereof to the petitioner. After purchasing the property and taking possession thereof, the petitioner filed an application before the Assistant Settlement Officer for recording the suit land in her favour on the basis of the sale deed and judgment of this Court dated 2.11.1992 delivered in O.J.C. No.2063 of 1992. The Assistant Settlement Officer after inquiry and on perusal of documents prepared Parcha in favour of the petitioner. The State Government through the G.A. Department filed a Rent Objection Case bearing No.4013 praying for recording the suit land in its favour and to delete the name of the petitioner therefor. The Assistant Settlement Officer, Rent Camp, by order dated 30th of December, 2000 allowed the Rent Objection Case and directed recording of the suit land in favour of the State. Said order of the Assistant Settlement Officer was challenged in appeal by the petitioner vide Settlement Appeal No.205 of 2003, but the same was again dismissed ignoring the judgment of this Court in the aforesaid case. Finding no other way, the petitioner to protect her possession filed Title Suit No.12 of 2004 in the Court of the Civil Judge (Senior Division), Bhubaneswar for declaration of title and permanent injunction, but later decided to withdraw the same as the claim of the petitioner is to be decided only on the basis of the judgment of this Court delivered in O.J.C. No.2063 of 1992. Though this writ application was filed during the pendency of the aforesaid suit, on the date of hearing of this writ application it was contended by the learned counsel for the petitioner that steps had already been taken for withdrawal of the suit and in the note of submission it is stated that the suit has been withdrawn on 1.10.2005. In view of the above, we entertained the writ application for hearing.

(3.) COUNTER -affidavit has been filed by the State in this writ application. It was contended by the learned counsel for the State that the entire case of the petitioner is based on the judgment of this Court in the aforesaid writ application and therefore basing on the counter, it is stated that this Court is only required to see as to whether the petitioner can get any benefit form the said judgment as claimed by her. According to the learned Additional Government Advocate, the Rent Objection Case having been allowed in favour of the State and the appeal filed against the said order having been dismissed, the claim of the petitioner cannot be allowed.