RATNAKAR NAIK Vs. KEDARNATH MOHAPATRA

JUDGEMENT

(1.) THIS is an appeal by defendants 1 to 5 against a reversing judgment of the First additional Subordinate Judge, Cuttack. The dispute relates to 0. 27 acre of land covered by plot No. 2532 appertaining to Nijjot Khata No. 821 in village Sisthol and covered by Touzi No. 5605. One Susila Bewa was one of the co-proprietors of the touzi having a four annas share therein, As a co-sharer proprietor, she was in possession of plot No. 2532. Susila's predecessor had mortgaged this plot of land to the plaintiff No. 1. It is the case of the plaintiffs that in satisfaction of the mortgage dues. Susila permanently leased out the land orally to plaintiff No. 1 on the first day of the agricultural year of 1936 (13-4-1936 ). Subsequently, on 17-81936, bimibadhar who is the brother of Susila and her power-of-attorney holder executed an unregistered deed of lease in favour of plaintiff No. 1. Plaintiff No. 2 is the son of plaintiff No. 1. On 1-5-1954, the touzi was abolished under the provisions of the Orissa Estates Abolition Act. 1951 (Act 1 of 1952) (hereinafter referred to as the Act ). It is alleged that after vesting, Susila submitted Ekapadia in the name of plaintiff No. 1 to Anchal authorities and thereafter plaintiff No. 1 was paying rent to the Anchal. Subsequently, there was a proceeding under section 145, Criminal P. C. in respect of the disputed land between the plaintiffs and defendants 1 to 5 which terminated in favour of the latter. The plaintiffs, therefore, filed the suit giving rise to this appeal for a declaration of their title to and for recovery of possession of the disputed property. During the pendency of the proceeding under Section 145, Criminal P. C. , defendant No. 7 had been appointed as receiver of the suit property. The plaintiffs also prayed for recovery of Rs. 60/- from defendant No. 7. Defendants 1 to 5 contested the suit. Their case is that defendant No. 6 who is the son of Susila and succeeded to her properties as her only heir, sold Susila's four annas share, in the touzi including this disputed land to defendant No. 5 under the registered sale deed dated 8-1-1954. Defendant no. 5 in his turn sold a three pies interest in the touzi along with the entire disputed land to defendant No. 4 under the registered Kabala Ext. C dated 2-31954. After abolition of the touzi, defendant No. 4 claiming to be an intermediary to be in possession of the disputed land and contending that under Section 7 of the Act the disputed land must be deemed to have been settled with him filed a claim under Section 8-A of the Act before the Collector for fixing fair rent for the land. Public notice of this claim was given by the Collector in pursuance of which the plaintiffs filed an objection. But ,as the objection was filed beyond time, it was rejected. The claim preferred by defendant No. 4 was allowed, fair rent for the land was fixed and defendant No. 4 has since then been paying the rent for the land. It is contended that as the order passed by the Collector under Section 8-A of the Act has not been appealed against and has thus become final. Section 39 of the Act is bar to the maintainability of the present suit. On the merits of the case it was contended by the defendants that the alleged lease of the disputed land in favour of plaintiff No. 1 is not true and that the plaintiffs were never in possession of the disputed property.

(2.) THE trial court dismissed the suit on the finding that the plaintiffs had failed to prove title to the disputed property by virtue of the alleged lease and that they were never in possession thereof. On appeal by the plaintiffs, the lower appellate court allowed the appeal on the finding that the oral lease set up by the plaintiffs is true that on the basis thereof they have acquired the title of a lessee in respect of the suit property, that the plaintiffs are in possession of the land and consequently are entitled to a declaration of their title to the disputed property. It may be stated here that although the trial Court dismissed the plaintiff's suit in its entirety, in the appeal filed by the plaintiffs they did not implead defendant No. 7 from whom they claimed recovery of Rs. 60/- which he is alleged to have received as receiver of the disputed land. The decree passed by the trial Court dismissing the plaintiff's claim against defendant No. 7 has thus become final. Being aggrieved by the judgment of the lower appellate Court, defendants 1 to 5 have filed this appeal.

(3.) THE appellants assail the findings recorded by the lower appellate Court that the oral lease set up by the plaintiffs is true and that they are in possession of the property. It is pointed cut that the lease deed said to have been executed In favour of plaintiff No. 1 by Bimbadhar on behalf of Susila has not been produced, that it has not been shown that after the abolition, the proprietor submitted ekapadia in respect of the disputed land in favour of the plaintiffs, that the plaintiffs have not produced the rent receipts given either by Susila on by Anchal and that the rent receipts filed by the plaintiffs on which the lower appellate Court relied are those alleged to have been given by one Jagannath Badu on behalf of susila and no reliance should have been placed on the same on the ground that it has not been proved that Jagannath had any authority from Susila and also on the ground that Jagannath although alive had not been examined. Besides asserting that the evidence on record fully justifies the findings recorded by the lower appellate Court it is urged on behalf of the respondents that this finding recorded by the final Court of fact is not liable to be assailed in second appeal excepting under exceptional circumstances and that no such circumstances exist in this case. It is also contended that the suit is barred under Section 39 of the Act and is consequently liable to be dismissed without any Investigation into the merits of the claim.