KISHORE CHANDRA RAY SAMANTA Vs. TAHASILDAR, BHUBANESWAR

JUDGEMENT

(1.) PRAYER in this writ application is for a direction to opposite party No.1 to accept rent from the petitioner in respect of Hal Plot No.4702, Hal Khata No.1076 corresponding to Sabik Plot No.1726, Sabik Khata No.918 corresponding to an area of Ac.4.00 in Mouza Gadakana under the Bhubaneswar Tahasil.

(2.) CASE of the petitioner is that in the year 1947 father of the petitioner was issued with a Patta on 15.3.1947 in respect of the said land by Raja of Kanika. Rent was being paid to the Raja of Kanika till 1951 and thereafter rent was being accepted by the Anchal Sasan till 1962. Father of the petitioner remained in possession of the land and his relationship with Raja of Kanika was that of land lord and tenant. After death of the father of the petitioner in the year 1947, the petitioner as successor became a tenant under the Raja. After coming into force of the Estate Abolition Act, the petitioner became the deemed tenant under the State in view of Section 8(1) of the Orissa Estate Abolition Act. Since the petitioner was serving in Army and was remaining absent from the village from 1948 to 1978, no steps could be taken in the settlement made in 1974 and the land was wrongly recorded with a note of illegal possession in favour of the petitioner. The petitioner thereafter filed Rent Case No.2189 for settlement of the land in his favour. The said application having been rejected, an appeal was preferred by the petitioner vide Appeal Case No.5 of 1991. The appeal was posted to 23.5.1991 for production of documents. But the petitioner due to his illness could not appear on that date and produce the documents and, accordingly, the appeal was dismissed. The petitioner thereafter filed a Revision Petition No.1847 of 1992 under Section 32 of Orissa Survey and Settlement Act, 1958 before the Commissioner of Land Records and Settlement, Orissa, Cuttack. Unfortunately, the record of the said revision was lost and could not be traced in the Office of the Member of Board of Revenue, Orissa, Cuttack for which the petitioner had to again file Revision Petition Nos.1588 of 1995 and 1589 of 1995 challenging the order of the Appellate Authority. The revisions were disposed of by the Commissioner of Land Records and Settlement, Orissa, Cuttack directing the Assistant Settlement Officer, Puri to decide the case on merit before the record of right is finally published. After remand the cases were reregistered as Appeal Case Nos.9273 of 1995 and 9274 of 1995 and notices were issued by the Settlement Officer on 12.9.1995 for appearance of the petitioner. The petitioner appeared before the Settlement Officer and filed the required copies of the documents but the appeals were not disposed of. The petitioner finding no way out filed another application on 2.12.1997 before the Settlement Officer to fix a date for final hearing of the appeals, but no steps were taken by the Settlement Officer. Thereafter the petitioner issued a notice under Section 80 of the Code of Civil Procedure. After expiry of the time the petitioner filed Title Suit No.428 of 1999 in the Court of the learned Civil Judge (Senior Division), Bhubaneswar praying for declaration of his right, title, interest and possession over the suit property, for recording his name in the record of rights and also for permanent injunction. Though the Government Pleader appeared in the case on behalf of the State Authorities and prayed for time to file the written statement, no steps were thereafter taken by the Government' Pleader or the Government Officials, who were defendants in the suit, as a result of which, the learned Civil Judge (Sr. Division), Bhubaneswar on 13.7.2001 passed an ex parte judgment and decree in favour of the petitioner. Long thereafter the State defendants filed a petition under Order 9, Rule 13 C.P.C. on 1.2.2003 for setting aside the ex parte judgment and decree and another petition was filed under Section, 5 of the Limitation Act for condoning delay in filing the application under Order 9, Rule 13 C.P.C. The application filed under Section 5 of the Limitation Act was rejected on 2.7.2011 and consequently the application under Order 9, Rule 13 C.P.C. was also rejected. In spite of the decree passed in favour of the petitioner, rent having not been accepted by the Tahasildar, this writ application has been filed.

(3.) THERE is no dispute that an ex parte decree has been passed in favour of the petitioner in respect of the above suit land declaring that the petitioner has right, title, interest as well as possession over the disputed land. The State defendants have also been restrained from interfering with the possession of the petitioner over the suit land. Therefore, ordinarily on the basis of the decree passed by the competent Civil Court, rent should have been accepted from the petitioner, but because of pendency of an application under Order 9, Rule 13 C.P.C., rent was not accepted from the petitioner. Admittedly, the application filed under Order 9, Rule 13 C.P.C. was barred by time and, therefore, the .State Authorities filed an application under Section 5 of the Limitation Act to condone the delay in filing the petition under Order 9 Rule 13 C.P.C. The learned Civil Judge (Senior Division), Bhubaneswar by order dated 2.7.2011 rejected the said application for condonation of delay with a reasoned order and consequently the application filed under Order 9, Rule 13 C.P.C. was dismissed. When this writ application was taken up for admission on 16.9.2011, it was pointed out by the learned counsel for the State that the aforesaid order passed by the learned Civil Judge rejecting the application for condonation of delay having not been challenged, there was no reason on the part of the Tahasildar to refuse acceptance of rent. The case was thereafter posted to 30.9.2011 for obtaining instruction. On 30.9.2011, the State Authorities filed W.P.(C) No.27115 of 2011 challenging the order of the learned Civil Judge (Senior Division), Bhubaneswar rejecting the application for condonation of delay. Therefore, it is evident that the State Authorities, who were defendants in the suit, filed the above writ application bearing No.27115 of 2011 during pendency of the present writ application. The said writ application was heard on merit and has been dismissed by a separate judgment. Therefore, on the basis of the ex parte judgment and decree passed in favour of the petitioner in T.S. No.428 of 1999, the Tahasildar, Bhubaneswar is required to accept the rent from the petitioner in relation to the disputed land.