SRI LINGARAJ MAHAPRABHU Vs. SUDAM CHARAN KANUNGO

JUDGEMENT

(1.) PLAINTIFF has filed this appeal against a confirming decision. The suit was filed for declaration of title of the plaintiff and for confirmation of possession, or in the alternative, recovery of possession of the disputed land measuring Ac. 0890 decimals in plot No. 3901 of Khata No. 1878. There is no dispute that the disputed land originally belonged to the plaintiff The said land vested in the State Government by virtue of Notification No. 13699/R, dated 18 3 1974 under section 3 A of the Orissa Estates Abolition Act. The plaintiff had filed O. J. C. No. 1075 of 1974 challenging the validity of the said Notification, which was dismissed on 8 2 1977. Subsequently, by order dated 7 9 1983 in O.E.A. Case No. 27 of 1983. the Member, Board of Revenue, settled Ac. 8.649 decimals of land including the disputed land in favour of the plaintiff in exercise of poweis under section 7 A of the Orissa Estates Abolition Act. Defendant No. 1 was not a tenant. However, he was a rank trespasser. The plaintiff bad earlier filed O. A. Case No. 139 of 1971 under section 68 of the Orissa Hindu Religious Endowments Act for restoration of possession. However, the said application was dismissed on 18 4 1975 on account of vesting of trust estates under the Notification dated 18 31974 with the observation that it would be open to tbe plaintiff to file a fresh case Prior to the aforesaid case, the plaintiff had also filed O. S No. 58 of 1971 for recovery of possession, but the said suit was dismissed for default. During the pendency of O J. C No. 1075 of 1974, Encroachment Case No. 156 of 1976 had been initiated against defendant No. 1 under the Orissa Prevention of Land Encroachment Act. During the pendency of the said proceeding under the Orissa Prevention of Land Encroachment Act, on the basis of an application of defendant No. 1 tor settlement of the land, the Tahsildar had initiated Vesting Misc. Case No. 54 of 1977 and ultimately Encroachment Case No. 156 of 1976 was dropped and tbedisputed land was purported to be settled with defendant No. 1 by order dated 4 3 1976. The said order was set aside by the Board ofRevenue in Suo Motu Revision Case No. 32 of 1978 in exercise of power under section 38 B of the Orissa Estates Abolition Act. However, in OJ.C. No. 140 of 1982, the High Court of Orissa set aside the order of the Board of Revenue The plaintiff claims that by virtue of order of the Board of Revenue in O.E.A. Case No. 27 of 1983, settling the land with the plaintiff under section 7 A of the Orissa Estates Abolition Act, a new title is created and the order of settlement by the Tahsildar in Vesting Misc. Case No. 54 of 1977 was illegal and did not confer any right on defendant No. 1. It was contended that the disputed land being within the limits of Bhubaneswar, did not come within the purview of the Orissa Government Land Settlement Act, 1962, and as such, the Tahsildar had no jurisdiction to settle the land under the Orissa Government Land Settlement Act.

(2.) DEFENDANT No. 1 in his written statement contended that he was in possession of the disputed land from 1950 and had acquired right by adverse possession. It was further contended that the dismissal of earlier suit numbered as O. S. No. 58 of 1971 operated as res judicata. It was further contended that since the land had been validly settled with defendant No. 1, the subsequent order passed by the Member, Board of Revenue, settling the disputed land in favour of the plaintiff in purported exercise of power under section 7 A was illegal and without jurisdiction.

(3.) THE lower appellate court observed that since the earlier suit was dismissed for default, it cannot be said that the said order of dismissal operated as res judicata. However, the lower appellate court confirmed the decree of the trial court by holding that the plaintiff had failed to prove that the disputed land was an orchard and was needed for the purpose of Trust and, moreover, the land having already been settled with defendant No. 1, the Board of Revenue could not have settled the same with the plaintiff in view of the Proviso to section 7 A. The contention of the present appellant that the order of settlement dated 4 3 1978 was illegal and without jurisdiction as the same had not been done following due procedure was negatived on the ground that no such specific plea had been taken and the High Court had already upheld such order of settlement.