MAGUNI CHARAN DWIVEDI Vs. STATE OF ORISSA

JUDGEMENT

(1.) MAGUNI Charan Dwivedi, the appellant, filed a title suit in the Court of Munsif, Sundargarh against the State of Orissa, for declaration of his title and recovery of possession of plot No. 99 measuring 3.80 acres in khata No. 89 of village Mahulpali claiming it as his "ganju bhogra" land. The suit was decreed on 14/10/1958, in respect of 3.45 acres. The defendant State of Orissa, did not file an appeal and the decree became final. Decree-holder Dwivedi applied for its execution. The case was transferred to the court of the Subordinate Judge of Sundargarh. An objection was taken there by the Notified Area Council, Rourkela, respondent No.2, hereinafter referred to as the Council, under Section 37 and 38 and Order 21 Rule 58 of the Code of Civil Procedure on the ground that it was in actual physical possession of the land. The objection application was however rejected by the execution court on 31/03/1965. The Council applied for revision of the order of rejection, but its application was dismissed with the observation that the Council might file a regular suit for adjudication of its right if it so desired. No suit was filed by the Council and decree-holder Dwivedi filed an application on Se 5/09/1966 for proceeding with the execution of his decree. The Council and the State then made an application under Section 47 of the Code of Civil Procedure stating that the decree was not executable because the Orissa Merged Territories (Village Offices Abolition) Act, 1963, hereinafter referred to as the Act, had come into force in the area on 1/04/1966, and the "bhogra land" in question had vested in the State free from all encumbrances. The Subordinate Judge upheld that objection and dismissed the execution application.

(2.) DECREE-holder Dwivedi felt aggrieved, and filed an appeal which was heard by Additional District Judge, Sundargarh, who held by his order dated 2/05/1970 that the decree was executable. He therefore set aside the order of the execution court and the State of Orissa and the Council went up in appeal to the High Court. The High Court held that as the decree-holder was not in actual physical possession of the land the tenure had vested in the State free from all encumbrances under Section 3 of the Act, the decree was "rendered not est", and the Collector could not settle the land with him under Section 5 of the Act. It, therefore, allowed the appeal by its impugned judgment dated 4/11/1974, and ordered that the decree-holder could not executed the decree. He applied for and obtained special leave, and has filed the present appeal.

(3.) IT has also been argued by Mr. Pathak that the provisions of Section 3 of the Act were subject to the provisions of Section 5, and that the High Court committed an error in losing sight of that requirement of the law. He has urged that if Section 3 had been read as suggested by him, it would have been found that, in spite of the resumption and vesting of the "bhogra land" under Section 3, the appellant's right to possess the "bhogra land" in question continued to subsist so long as it was not converted into a right of occupancy under sub-section (1) of Section 5. Counsel has gone on to argue that the appellant was, therefore, entitled to ignore any trespass on his possession of the "bhogra land" and to ask for execution of the decree for possession against the respondents as they were mere trespassers and were not co-sharers or tenants within the meaning of sub-section (1) of Section 5. Reference in this connection has been made to Maxwell on Interpretation of Statutes, twelfth edition, p.86, where it has been stated that it is necessary to interpret the words of the statute so as to give the meaning "which best suits the scope and object of the statute." IT has been argued that grave injustice would otherwise result for, by a mere act of trespass committed on the eve of the coming into force of the Act, a village officer would lose the right of settlement of his "bhogra land" under sub-section (1) of Section 5. IT has also been argued that the words "each such person" occurring in that sub-section do not include the holder of the village office himself, so that it was not necessary for him to show that he was in separate and actual cultivating possession of his "bhogra land". Reliance for this proposition has been placed on a bench decision of the High Court of Orissa in State of Orissa v. Rameswar Patabisi (Civil Revn. Petn. No. 257 of 1974 decided on 27-6-1975) and on Meharbansingh v. Nareshsingh, (1970), 3 SCR 18 . As will appear, there is no force in this argument.