STATE OF ORISSA & ANR. Vs. FAKIR CHARAN SETHI (DEAD THROUGH LRS) & ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 1812-1815 of 2010, Judgment Date: Oct 09, 2014
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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