DAMBARUDHAR BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Plaintiff is the appellant. The suit was for declaration that the agreement dated 25-9-64 executed by the plaintiff in respect of Dadar Plantation Coupe No. II, Divisional Plot No. 79 in Khariar Forest Division is invalid in the eye of law and not binding against the plaintiff and for further declaration that the plaintiff is entitled to get Rs. 9,328 towards damages either from defendant No. 1 or from defendants Nos. 2 to 25.

(2.) Plaintiff's case is that the D.F.O,, Khariar Division published a notice for sale of forest produce of the aforesaid coupe for the year 1964-65. Auction was held on 25-9-64 and the bid of the plaintiff was the highest for Rs. 10,000. This bid was accepted and an agreement was executed between the D.F.O. and the plaintiff on the same day, i..e. 25-9-64. The total extent of the coupe was 45 acres which was specified in a sketch map and attached to the said agreement (Ext. 1). As per the agreement, the plaintiff deposited a sum of Rs. 1,000 towards the security deposit. On 8-11-64 the plaintiff was informed by the D.F.O. to take delivery of the coupe by 20-11-64 and to commence work after paying the first instalment of Rs. 2,500. On 1-12-64 the Forester of Beltukuri (P. W. 1) was directed by the Ranger, Nawapara to give delivery of possession of the coupe, but this was not done due to the fact that defendants 2 to 25 did not allow P. W. 1 to give delivery of possession, claiming themselves to be the raiyats or the relations of the raiyats in respect of more than 25 acres of the said coupe and owners of the standing trees. The said defendants also gave a written notice to the Forester to the effect that they would prevent the plaintiff from working the coupe unless the contract of defendant No. 1 with the plaintiff was modified to exclude the lands in respect of which they were the raiyats. The plaintiff wrote registered letters on 2-12-64, 11-12-64 and 26-12-64 to the D.F.O. informing him about the non-delivery of possession due to the obstruction created by defendants 2 to 25, although the time was the essence of the contract. He further alleged that there was vitiation of the contract due to non-disclosure of the material particulars as to the right and possession of the Forest Department over the coupe as it came to light by then that the entries in the record-of-rights stood in the names of those defendants or their relations and they were paying rent to Government and were in cultivating possession in respect of more than 25 acres out of the said coupe. The plaintiff also met the D.F.O. personally and represented to him about the difficulty created by defendants 2 to 25 in taking delivery of possession of the coupe and requested him to terminate the contract and refund the security deposit. But he was told by the D.F.O. to take delivery of possession of the undisputed portion of the coupe and it was promised by the D.F.O, that the contract would be modified or the matter would be settled with defendants 2 to 25. By letter dated 1-1-65 (Ext. 3), the plaintiff was informed by the D.F.O. to meet the Range Officer, Nawapara and to take delivery of possession of the coupe. The Range Officer also directed the Forester, Beltukuri on 4-1-65 to deliver possession of the coupe to the plaintiff. But physical delivery of possession of the coupe was never given to the plaintiff and in spite of that a coupe delivery certificate (Ext. A) was taken from the plaintiff by the Forester, Beltukuri on 4-1-65. The plaintiff commenced work in the undisputed portion of the coupe and felled 238 standing trees and converted the same into 630 logs. He also transported the same to Khariar Road Railway Siding after marking verification etc. by the forest staff. He sold only 102 logs for Rs. 1,095 as the D.F.O., Khariar Division issued export permit for 102 logs only. At the instance of P. W. 1, the plaintiff also felled 202 trees between 5-1-65 and 9-2-65, but he could not convert those trees into logs, nor could he remove the same as defendants 2 to 25 did not allow him to do so and endangered his life as well as of his men. Accordingly, he was forced to stop the work. He intimated all these facts to the D.F.O. by a registered letter, but the D.F.O. took no action. On 23-2-65, the D.F.O. endorsed on a fresh petition of the plaintiff to the Ranger, Nawapara, who in his turn forwarded the same to the Jonk P.S. for action. The Officer-incharge, Jonk P.S. submitted a prosecution report under Section 107, Cr. P. C. making the plaintiff, the Ranger of Nawapara and the Forester as the first party and some of the defendants as the second party and ordered the plaintiff not to work in the coupe pending disposal of the proceeding. On the basis of the said prosecution report, a case was started which terminated in favour of the second party. Plaintiff then made a representation on 1-3-65 to the Conservator of Forests, Jeypore Circle to modify the contract, extend the time of the contract, to issue export permit in respect of the logs removed to Khariar Road railway siding and to make necessary adjustment regarding consideration and payment, but the Conservator of Forests did not pay any heed to the same. At the instance of the Officer-in-charge, Jonk P.S., the R.I. submitted a detailed report about the state of affairs, saying that more than 30 acres out of 45 acres were tenanted. On 13-3-65, the D.F.O. recommended to the Conservator of Forests to terminate the contract with the plaintiff on the ground of nonpayment of the instalment dues. A proceeding under Section 145, Cr. P. C. was also instituted on 14-3-65 by the Officer-in-charge, Jonk P.S. making the plaintiff, the Range Officer and the Forester as first party and some of the defendants as second party, which ended in favour of the second party. The contract was terminated on 25-3-65. The plaintiff made a representation to the Conservator of Forests and also preferred an appeal before the Secretary, Forest Department against the aforesaid order of termination of the contract without giving an opportunity to the plaintiff of being heard, but the appeal was rejected. The said coupe was again put to auction by the D.F.O. Khariar Division, but nobody took part in the re-auction due to the defect in the title of the Forest Department over the coupe. This defect of title of the Forest Department came to the knowledge of the plaintiff subsequent to the contract and, as such, the contract is invalid in the eye of law. The contract is also vitiated by non-disclosure of the above mentioned defects as to the right and possession of the Forest Department over the said coupe and on the ground of fraud and misrepresentation as well as for impossibility of performance. The plaintiff incurred a total expenditure of Rs. 11,231 as detailed in the plaint, as a result of his action on the impugned agreement, but earned only a sum of Rs. 1,905 out of the same by sale of 102 logs and thus sustained a net loss of Rs. 9,326.

(3.) The first defendant, namely, the State of Orissa in the written statement pleaded inter alia that the suit is not maintainable as there is no cause of action. It is stated that the whole transaction took place with the D.F.O. and he is a necessary party to the suit. The plaintiff was the highest bidder after he inspected the coupe. The delivery of the coupe was made on 4-1-65 and the plaintiff took delivery of possession out of his own accord and duly granted a receipt for the same. As such, consideration of his applications did not arise. His prayer was rejected by the Conservator of Forests who was moved to determine the contract as the plaintiff defaulted to pay the 2nd, 3rd and 4th instalments according to the Forest Contract Rules. As the re-auction was held in the month of September, no bidder came to bid. Since the disputed coupe was declared to be a reserved forest, it was put to auction. The agreement is binding on the plaintiff since he had taken delivery of the coupe and worked out the coupe. The plots in the coupe had been declared as reserved forest since 1913, but due to the mischief of the Revenue Inspector those were recorded in the names of some tenants as per the Jamabandi of 1949-50. The source of tenancy was quite unknown. There is no order of authorities regarding settlement of the reserved forest with the tenants as there were standing trees on the plots. Consequent upon abolition of the Khariar Estate, the aforesaid area was relocated in 1957-58 and the same was taken over by the Forest Department and none of tenants including the defendants 2 to 25 raised any objection. In the year 1963, the extent of the forest area of Khariar Estate was declared as protected forest. Even after that, no objection was filed. The claim of the tenants including defendants 2 to 25 is false and fictitious. No right accrues to them by way of title even by adverse possession as they were never in possession within thirty years against Government. The plaintiff is not entitled to the declaration and the damages as prayed for. The case of defendants 2 to 17, 19 to 22, 24 and 25 is that the plaintiff has no cause of action against them. They exercised their right over their portions in the coupe lawfully and peacefully to avoid irresponsible loss being caused by the plaintiff and defendant No. 1 by entering into the alleged contract. In fact 202 trees standing on the tenanted holding of these defendants were cut by the plaintiff or his agents for which these defendants are entitled to damages and they are not bound by any agreement between the plaintiff and defendant No. 1. The G.A.L. for minor defendant No. 18 has adopted the written statement of the aforesaid defendants,