RADHAMANI DIBYA Vs. BRAJA MOHAN BISWAL

JUDGEMENT

(1.) This appeal is directed against a decree declaring the plaintiffs' occupancy right to the suit lands and confirming their possession over came. The question of law that arises for consideration is whether a bhagchasi is a tenant under the Orissa Tenancy Act, 1913: In the first instance, the appeal came up before a Division Bench to which one of us (P.K. Mohanti, J.) was a party. The Division Bench felt it desirable to place the appeal before a larger Bench in view of the conflict between the judgments of two different Division Benches of this Court regarding the status of a bhagchasi. That is how the entire appeal has been placed before us for disposal.

(2.) The suit lands measuring 5.70 acres as described in Schedule B of the plaint appertained to Anabadi Khata No. 192 under Tauzi No. 2390 in mauza San Bhubanpur. Defendant No. 1 Maheswar Dobai, Krushna Chandra Dobai, the father of defendants 2 and 3 and Mayadhar Dobai, the father of defendants 4 to 6 were the co-sharer landlords of the tauzi having one-third share therein. They granted leases of the suit lands from time to time for cultivation purposes to late Pravakar Biswal, the father of the plaintiffs. He was in continuous possession from 17-4-1946 till his death which occurred on 4-12-1964. The tauzi vested in the State Government on 1-4-1054. While Pravakar was in possession as a bhagehasi, defendants 1 to 3 and Mayadhar, the father of defendants 4 to 6 wanted to evict him forcibly for which he filed to O. T. P. Case No. 28 of 1950 for protection against eviction. The Sub-divisional Officer of Jaipur allowed the case holding that Pravakar Biswal was a bhagtenant under the landlords and that he was entitled to protection against eviction under Section 7 (6) of the O. T. P. Act. After abolition of the estate, defendants 7 and 8 filed an application under Section 8 (1) of the Orissa Estates Abolition Act for a declaration of their occupancy right on the basis of a registered permanent lease deed dated 2-21944--Ext. D executed, in their favour by the ex-landlords. The Tahasildar of Jaipur rejected the application holding that Ext. D was a colourable transaction and had not been acted upon. Aggrieved by this decision, defendants 7 and 8 preferred Orissa Estates Abolition Appeal No. 83/65 before the Additional District Magistrate, Cuttack who set aside the decision of the Tahasildar and recognised the tenancy of defendants 7 and 8 vide his order daied 2-2-1966 Ext. F. Thereafter the plaintiff filed the suit on 23-10-1967 for declaration of their occupancy right and confirmation of possession in order to remove the cloud thrown on their titie by the aforesaid order--Ext. F.

(3.) Defendants 1 to 5 did not contest the suit. The pleader guardian for the minor defendant No. 6 filed a formal written statement denying the plaint allegations and putting the plaintiffs to strict proof of their case.