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Monday, December 8, 2014

Declaration of occupancy rights in their favour as well as for affirmation of their possession as tenants in respect of the suit land. A further direction to the defendants 1 and 2 (appellants) to accept rent from the plaintiffs and a permanent restraint against interference in the possession of the plaintiffs over the suit land was also sought in the suit filed. = However, in view of our conclusions on the issue of possession of the plaintiffs’ predecessors on the date of vesting of the land under the Abolition Act and the continuity of the tenure claimed by the plaintiffs after such vesting under Section 8(1) of the Abolition Act the plaintiffs’ suit is liable to be dismissed and the decree granting relief to the plaintiffs is required to be reversed. We, therefore, set aside the judgment and order dated 29.7.2000 passed by the High Court in F.A.No.10 of 2001 and allow Civil Appeal No. 1812/2010 challenging the said order. = 2014- Oct.Part- CIVIL APPEAL NOS. 1812-1815 OF 2010 STATE OF ORISSA & ANR. ... APPELLANT (S) VERSUS FAKIR CHARAN SETHI ... RESPONDENT (S) (DEAD THROUGH LRS) & ORS.


                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                    CIVIL APPEAL  NOS. 1812-1815 OF 2010


STATE OF ORISSA & ANR.            ...     APPELLANT (S)

                                   VERSUS

FAKIR CHARAN SETHI                      ...  RESPONDENT (S)
(DEAD THROUGH LRS) & ORS.


                               J U D G M E N T

RANJAN GOGOI, J.

1.      Civil Appeal No. 1812 of 2010 arising from the common  judgment  and
order dated 30.7.2009 passed by the High Court of  Orissa  in  F.A.No.10  of
2001 affirming the decree dated 29.7.2000 passed by the learned Trial  Court
may be conveniently treated as the main appeal for consideration.   In  that
event the fate of the  connected  appeals  would  stand  determined  by  the
outcome of the aforesaid Civil Appeal i.e. C.A. No.1812 of 2010.

2.    The respondents 1 and 2, as plaintiffs, instituted Title  Suit  No.620
of 1998 in the Court of learned Civil Judge, (Senior  Division)  Bhubaneswar
seeking a declaration of occupancy rights in their favour  as  well  as  for
affirmation of their possession as tenants in respect of the suit  land.   A
further direction to the defendants 1 and  2  (appellants)  to  accept  rent
from the plaintiffs and a permanent restraint against  interference  in  the
possession of the plaintiffs over the suit land was also sought in the  suit
filed.

3.    The short case  of  the  plaintiffs(respondents)  before  the  learned
Trial Court was to the effect that  their  father  Nidhi  Sethi  who  served
under the Ex-ruler of Kanika Raja as a washer man was granted lease  of  the
suit land measuring 4.16 acres covered under Sabik Plot No.292  appertaining
to holding No.303 situated  in  Mouza  Chandrasekharpur.  According  to  the
plaintiffs, the aforesaid land was leased  to  their  father  on  14.2.1942;
possession of the land was delivered  and  rent  paid  by  their  father  as
tenant was accepted by the Ex-ruler. The plaintiffs further claimed that  an
unregistered Hatapatta (lease agreement) (Ext.1) was also granted by the Ex-
proprietor in favour of the plaintiffs’ father.  It  was  the  case  of  the
plaintiffs that since the date of the lease their father and thereafter  the
plaintiffs had been in possession of  the  suit  land  using  the  same  for
residential as well as agricultural purposes.

4.    It was the further case of the plaintiffs, as stated  in  the  plaint,
that the intermediary interest in the estate including the suit  land  stood
abolished and vested in the State  Government  sometime  in  the  year  1954
under the provisions of the Orissa Estate Abolition Act,  1951  (hereinafter
referred to as ‘the Abolition  Act’).  According  to  the  plaintiffs,  even
thereafter, their father had paid rent to the State Government  through  the
Tehsildar and had continued to be in possession of the  suit  land.  It  was
also the case of the plaintiff that their father had died in the year  1967,
whereafter, the plaintiffs continued to remain in  possession.  Furthermore,
according to the plaintiffs, in the Record of Rights published in  the  year
1974  upon  completion  of  settlement  operation  the  land  was  shown  as
Government land; the said entry was on account of fact that  the  plaintiffs
were living outside Orissa.  In  the  Record  of  Rights  pursuant  to  1988
settlement the State Government was shown as the  owner  of  the  suit  land
with a note of forcible possession of the same  by  the  plaintiffs  against
the remarks column. While the matter was situated, the defendants  3  and  4
in the suit i.e. Director of NCC and Defence  Estate  Officer  attempted  to
trespass into the suit land.  The  suit  in  question  was  therefore  filed
seeking the reliefs earlier noticed.

5.    The defendants 1 and 2  filed  a  joint  written  statement  pleading,
inter alia, that the claim of the lease in  favour  of  the  father  of  the
appellant with effect from 14.2.1942 and  the  execution  of  the  Hatapatta
(Ext.1) was untouched.  The  Hatapatta  and  the  supporting  rent  receipts
issued by the Ex-ruler (Ext.2 series), according  to  the  defendants,  were
forged and fabricated documents. The claim of possession of  the  father  of
the plaintiffs and thereafter of the  plaintiffs  over  the  suit  land  was
vehemently contested by the State in the written statement filed. The  State
also contended that the entries in the Record of Rights after conclusion  of
the settlement operation in  the  year  1974  which  did  not  disclose  any
interest of the plaintiffs over the suit land were  not  challenged  by  the
plaintiffs in any forum. According to  the  State,  the  entry  of  forcible
possession of the plaintiffs in the remarks column of the Record  of  Rights
pursuant to the 1988 settlement operation is a forged and fabricated  entry.
 The certified copy of the tenancy roll (Ex.4) prepared by the  intermediary
and submitted by the Government, after the vesting, showing the name of  the
plaintiffs therein as well as the tenancy ledger (Ex.5) were also  contended
to be forged.

6.    The learned trial court framed as many as five issues for  trial,  out
of which issues D and E were considered to be  of  primary  importance.  The
aforesaid two issues framed were as follows :
“D –Did the  plaintiff’s father acquire occupancy right over the  suit  land
being a tenant under the ex-proprietor ?
  E –Are the plaintiffs and their father in  continuous  possession  of  the
suit land since 1942?”

7.    The learned Trial Court accepted the credibility and  authenticity  of
the Hatapatta (Ext.1); rent receipts issued by the Ex-ruler (Ext.2  series);
rent receipts granted by the Tehsildar after the vesting of the land in  the
State Government (Ext.3); certified copy of the Rent  Roll  (Ex.4)  prepared
by the Ex-proprietor  and  submitted  to  the  Government  at  the  time  of
vesting; the certified copy of the tenancy ledger (Ext. 5) prepared  by  the
Tehsildar, Cuttack on 31.3.1981.  That apart,  a  host  of  other  documents
exhibited by the plaintiffs, particularly,  the  reports  of  the  different
authorities (Exts.9, 11 and 12) to show the possession of the plaintiffs  as
well as the  certificates  of  such  possession  issued  by  the  Tehsildar,
Bhubaneswar  (Ext.14);  receipts  granted  by  the   Bhubaneswar   Municipal
Corporation (Ext.15 series); Driving  Licence  (Ext.  17),  Bank  Pass  Book
(Ext.18); Ration Card (Ext.19); Telephone Bills (Ext.20 series)  were  taken
into account by the learned Trial Court to record its finding of  possession
in favour of the plaintiffs.

8.    The continuous possession of the plaintiffs since  the  year  1942  as
found by the learned trial  court  was  understood  to  have  satisfied  the
requirement under Section 8 of the Abolition Act  entitling  the  plaintiffs
to be recognized as tenants under the State Government, and,  therefore,  to
the reliefs sought in the suit. The claim of the State with  regard  to  the
doubtful authenticity of the documents relied upon by  the  plaintiffs  were
understood by the learned trial court to be unsubstantiated  and  unverified
claims and, therefore, unworthy of any credence.  It  is  on  the  aforesaid
broad basis that the plaintiff suit was decreed by the learned trial  court.


9.    Against the decree dated 29.7.2000 passed by the learned trial  court,
the State of Orissa filed an appeal i.e. F.A.No.10 of 2001 before  the  High
Court. During the pendency of the appeal before the  High  Court,  the  land
was allotted to one Bombay Cardio Vascular Surgical  Pvt.  Ltd.  (respondent
No.2 in C.A.No.1814 of 2010). The aforesaid allotment was  made  subject  to
the result of  F.A.No.10  of  2001.  The  said  allotment  and  the  alleged
assertion of right  on  the  basis  thereof  by  the  allottee  came  to  be
challenged by the first respondent/plaintiff in  W.P.Nos.7962  and  8874  of
2008. A Public Interest Litigation registered as  W.P.No.7434  of  2008  was
also filed before the High Court challenging the  ‘grant’  of  the  land  in
favour of the plaintiffs and the entries with  regard  to  their  possession
made in the Record of Rights of the year 1988. The aforesaid writ  petitions
along with F.A.No.10 of 2001 were heard analogously and were disposed of  by
the common order of the High Court dated 30.7.2009.

10.   The High Court on hearing the appeal against the decree (F.A.No.10  of
2001) upheld the findings of the learned  trial  court  by  reiterating  the
same on reconsideration of  the  evidence  and  materials  on  record.  What
however would require specific notice is that before  the  High  Court,  the
appellant-State had filed two affidavits of the  Tehsildar  Bhubaneswar  and
Cuttack Tehsil respectively to show that Exts.4  and  5,  (issued  in  1981-
1982) relied upon by the learned trial court, could not have been issued  by
the Tehsildar, Cuttack inasmuch as Village Chandrasekharpur (where the  suit
land is situated) was  under  the  jurisdiction  of  Cuttack  District  till
bifurcation in the year 1970 and thereafter the said village became  a  part
of  Bhubaneswar  Tehsil.  As  per  Government’s  Notification  all   records
pertaining to village Chandrasekharpur are  not  available  in  the  Cuttack
Tehsil. The authority of the Tehsildar, Cuttack to issue Ext.  4  and  5  in
the  years  1981-82  when  village  Chandrasekharpur  became   a   part   of
Bhubaneswar  Tehsil  was  specifically  questioned  in  the  aforesaid   two
affidavits. In so far as  Ext.  3  series  (rent  receipts)  issued  by  the
Tehsildar is concerned, lack of authenticity of the same was  reiterated  by
the  Tehsildar,  Cuttack  in  his  affidavit  filed  in   the   High   Court
specifically contending that the same was “not genuine” and could  not  have
been granted in accordance with law i.e. under the law.

11.   Before us, Shri Tushar Mehta,  learned  ASG  has  contended  that  the
Hatapatta being an unregistered instrument cannot be construed as a  legally
valid instrument of lease. Even if the said document i.e.  Ext.1  is  to  be
accepted, the rent receipts (Ext.2 series) are  entry passes for  collection
of different forest produce inasmuch as in the Record  of  Rights  published
since the year 1931, indisputably, the land is described as  “Jhati  Jungle”
or forest land. What is of significance is  the  further  argument  of  Shri
Mehta that the said land being “Jhati Jungle” or forest land and the  status
of the  land  being  Anabadi  (unfit  for  cultivation)  possession  of  the
plaintiffs’ father of the suit land on the date of vesting  i.e.  1954  even
if is accepted (though the  same  has  been  vehemently  denied),  the  said
possession will not enure to the benefit of the plaintiffs inasmuch  as  the
possession contemplated by Section 8  of  the  Abolition  Act  must  be  for
purposes of cultivation and the holding of the land must be  in  the  status
of a raiyat. In this regard, reliance has been placed  on  the  decision  of
this Court in State of Orissa & Ors. Vs. Harapriya Bisoi[1].   According  to
Shri Mehta, there is no legal much less acceptable evidence and  no  finding
whatsoever of such possession in favour of the plaintiffs has been  recalled
by the learned trial court. Pointing out the relevant paragraphs  (paras  34
to 36) of the report in State of Orissa & Ors. Vs. Harapriya  Bisoi  (supra)
Shri Mehta has contended that the pendency of a  criminal  investigation  in
respect of the Hatapatta issued in the said case, has been noticed  by  this
Court.  The Hatapatta (Ext. 1) issued to the father of  the  plaintiffs,  as
claimed, are in circumstances similar to the present case. By  pointing  out
the averments in the  written  statement  filed  by  the  State  before  the
learned trial court  and  the  affidavits  of  the  Tehsildar,  Cuttack  and
Bhubaneswar Tehsil before the High Court,  Shri  Mehta  has  submitted  that
there is grave doubt with  regard  to  the  authenticity  of  the  documents
relied on by the learned trial court  as  well  as  by  the  High  Court  in
support of the impugned findings. Shri Mehta has also pointed out  that  the
other documents (Exts.9 to 20) would at best go to show  the  possession  of
the plaintiffs after the date of vesting which is not at  all  relevant  for
deciding the entitlement of the plaintiffs as claimed in the suit.

12.  In reply, Shri Jaideep  Gupta,  learned  senior  counsel  appearing  on
behalf of respondent Nos. 1 and 2 has taken us through the pleadings in  the
plaint and the relevant part of the evidence of PWs.1 and  2  to  show  that
what was pleaded and proved by the evidence brought  by  the  plaintiffs  is
the continuous possession  of  the  plaintiffs  or  their  predecessors  and
cultivation of a part of suit land by them since the year 1942. On the  said
basis it is urged that the statutory protection available to the  plaintiffs
under Section 8(1) of the Abolition Act was rightly accorded by the  learned
trial court and affirmed by the High Court in appeal. It is  contended  that
the objections taken with  regard  to  the  authenticity  of   some  of  the
documents brought on record by  the  plaintiffs  are  belated  as  the  said
documents were allowed to be exhibited in the trial  without  any  objection
from  the  State.  The  criminal  investigation  does  not  pertain  to  the
Hatapatta issued  to  the  plaintiffs  father  (Ext.1).  It  is,  therefore,
contended that there is no basis for interference.

13.   It will not be necessary to go into  the  various  contentious  issues
arising from the weighty arguments advanced by the learned counsels for  the
parties as, according to us, the controversies arising are capable of  being
resolved within a narrow compass.  In State of Orissa & Ors.  Vs.  Harapriya
Bisoi (supra), it has been held by this Court that possession  of  a  tenant
under an intermediary  on  the  date  of  vesting  of  the  land  under  the
Abolition Act so as to give the tenant the benefit of continuity  of  tenure
under Section 8(1) of the said Act would have to  be  in  the  status  of  a
raiyat actually cultivating the land. The definition of Raiyat contained  in
Section 2(n) and the provisions of Section 5(2) of the Orissa  Tenancy  Act,
1913 were at length considered by  this  Court  to  come  to  the  aforesaid
conclusion which may be noticed by a  specific  reference  to  the  relevant
paragraphs of the report in State of  Orissa  &  Ors.  Vs.  Harapriya  Bisoi
(supra):-

“26. By virtue of Section 8, any person who immediately before  the  vesting
of an estate in the State Government was in possession of any holding  as  a
tenant under an intermediary, would on and from the date of the vesting,  be
deemed to be a tenant of the State  Government.  The  words  “holding  as  a
tenant” mean the “raiyat” and not any other class of  tenant:  reference  in
this regard may be drawn to  the  definition  of  “holding”  in  the  Orissa
Tenancy Act, 1913:
“3. (8) ‘holding’ means a parcel or parcels of land held  by  a  raiyat  and
forming the subject of a separate tenancy;”
Section 8 thus confers protection only  on  the  “raiyat”  i.e.  the  actual
tiller of the soil.
27. Significantly, a “lease” and  “lessee”  on  the  one  hand  are  defined
separately from the “raiyat” under the Act. Thus, the mere  execution  of  a
lease by the intermediary in favour of a person would not confer the  status
of a “raiyat” on the lessee nor would protect the possession of such  lessee
under Section 8. In fact, a  “lease”  would  amount  to  a  transfer  of  an
interest of  the  intermediary  in  the  land  to  the  lessee.  In  such  a
situation, far from being a tenant protected under  Section  8,  the  lessee
would in fact step into the shoes of  the  intermediary  with  his  interest
being liable for confiscation and his entitlement  limited  to  compensation
from the State.
28. On the other hand, for protection under Section  8,  one  has  to  be  a
raiyat cultivating the land directly and  having  the  rights  of  occupancy
under the tenancy laws of the State. Thus, a “lessee” who  is  not  actually
cultivating the land i.e. who is not a “raiyat”, would  not  be  within  the
protection of Section 8  of  the  Act.  Section  2(h)  of  the  Act  in  its
residuary part states that “intermediary” would cover all owners or  holders
of interest in land between the raiyat and the State.”

In Para 30  of  the  aforesaid  report,  on  similar  facts,  the  claim  of
cultivation of the land recorded as Anabadi and  jhati  jungle  i.e.  forest
land in the said case was negatived by this Court on the  plain  logic  that
such a claim of cultivation can have no basis when the land is described  in
the  Revenue  records  as  ‘Jhati  Jungle’  and   also   as   Anabadi   i.e.
uncultivable.

14.   In the present case  even  though  the  evidence  of  PW1  and  2  may
indicate that the suit land was cultivated by the plaintiffs, in  the  light
of views expressed by this Court in para 30 of the report in  the  State  of
Orissa & Ors. Vs. Harapriya Biso (supra), the  aforesaid  evidence,  without
further details, has  to  be  construed  as  wholly  unacceptable  proof  of
cultivation of the suit land by the plaintiffs’ predecessors on the date  of
vesting of the land under the provisions of the Abolition Act.   It must  be
made clear that what is relevant under Section 8(1) of the Abolition Act  to
confer the benefit of continuity of tenure to the tenant  is  possession  as
well as cultivation of the land as on the date of vesting.   Therefore  what
was required to be established by the plaintiffs  in  the  present  case  is
cultivation by the predecessors of the plaintiffs in the year 1954 when  the
land had vested in the State notwithstanding  the  status  of  the  land  as
shown in the Record of Rights.  No specific  evidence  in  this  regard  has
been laid by the plaintiff (PW1) except a bald and ominous  claim  that  the
land was cultivated by his father.  If the plaintiffs had  failed  to  prove
possession and cultivation as on the date of vesting, as we are inclined  to
hold, the same, irrespective of any  other  question,  will  disentitle  the
plaintiffs to the reliefs sought in the suit.

15.   The appellant- State in  its  written  statement  before  the  learned
trial court as well as in the appeal before the  High  Court  had  raised  a
specific plea of forgery and fabrication of the  documents  relied  upon  by
the plaintiffs.  The affidavits of the Tehsildar,  Cuttack  and  Bhubaneswar
Circle filed before the High Court specifically deal with  aforesaid  issue.
The appellant State had filed an application under Order 41 Rule 27  of  the
Code of Civil Procedure for leave to bring the same  on  record.   The  said
application was rejected and all objections brushed aside  by  holding  that
the burden  to  prove  the  forgery  alleged  has  not  been  satisfactorily
discharged by the  State.   It  is  our  considered  view  that  the  matter
required a deeper probe and investigation and did not  call  for  a  summary
rejection.  That apart in  State  of  Orissa  &  Ors.  Vs.  Harapriya  Bisoi
(supra) the issue  with  regard  to  validity  of  a  Hatapatta  similar  to
Ext.  1  was  found  to  be  the  subject  matter  of  an  ongoing  criminal
investigation. All these required  the  elimination  of  even  slightest  of
doubt with regard to the authenticity of the  relied  upon  documents.   The
effect of fraud on judicial orders has also   been  exhaustively  considered
in State of Orissa & Ors. Vs. Harapriya Bisoi (supra) and  it  will  not  be
necessary to reiterate the views expressed therein except  to  say  that  on
the slightest of doubt or even prima facie proof of fraud, the  matter  must
be thoroughly investigated by the court to arrive at  the  truth.   Judicial
order must be based on strong foundational facts  free  from  any  doubt  as
regards the correctness and authenticity  thereof.   In  the  light  of  the
facts noticed by us the High Court, in our considered view,  ought  to  have
investigated the matter a little further instead of  summarily  holding  the
objections of the State to be mere claims or  assertions  of  fraud  without
legal proof.

16.   However, in view of our conclusions on the issue of possession of  the
plaintiffs’ predecessors on the date  of  vesting  of  the  land  under  the
Abolition Act and the continuity of the tenure  claimed  by  the  plaintiffs
after such vesting under Section 8(1) of the Abolition Act  the  plaintiffs’
suit is liable to be  dismissed  and  the  decree  granting  relief  to  the
plaintiffs is required  to  be  reversed.   We,  therefore,  set  aside  the
judgment and order dated 29.7.2000 passed by the High Court in F.A.No.10  of
2001 and allow Civil Appeal No. 1812/2010 challenging the said  order.   The
remaining civil appeals shall stand decided accordingly.  Specifically,  the
orders passed by the High Court in Writ Petition Nos. 7434 and 7962 of  2008
are set aside whereas Writ Petition No. 8874/2008 shall  stand  disposed  on
in terms of the order passed in Civil Appeal No. 1812/2008.

17.   All the appeals shall stand decided in the above terms.

                                       …………………………J.
                                                            [RANJAN   GOGOI]





                                                            ......……………………J.
                                             [R.K.AGRAWAL

NEW DELHI,
OCTOBER 09, 2014.

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[1]    2009 (12) SCC 378

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