SANA BHIMA NAYAK Vs. STATE

JUDGEMENT

(1.) The petitioners claim to be the tenants in respect of 80.00 acres of land belonging to the ex-intermediary Panjasha Peer in Mauza Kotinda in the district of Ganjam and in this writ application they assail the order dated 4-7-1981 passed by the Tahsildar directing settlement of 272.718 acres of land including the disputed 80.00 acres in favour of opposite party No. 3, Hazarat Panjasha Dargha, represented by the Muzawars (opposite parties 4 to 25). The said order of the Tahsildar has been annexed as Annexure-3 to the writ application.

(2.) The petitioners' case in a nut-shell is that Hazarat Panjasha Dargha is represented by Muzawars who are opposite parties 4 to 25. The Inam village vested in the State of Orissa by notification made under the Orissa Estates Abolition Act on 15-7-1955. The Muzawars then filed applications under Sections 6 and 7 of the Orissa Estates Abolition Act for settlement of different parcels of land in their favour which were registered as O.E.A. Case Nos. 254 to 269 of 1988. In those cases, the present petitioners filed objection stating therein that they are in possession of the land as tenants in respect of 80.00 acres (400 Bharans) and, therefore, in respect of the same, no settlement can be made in favour of those Muzawars. The Estate Abolition Collector dismissed those cases on 22-5-1964 on a finding that Mazawars are not the intermediaries arid it is the Dargha who is the intermediary. The said order of rejection was assailed in appeal and the appellate authority allowed the appeal by order dated 21-1-1966. The petitioners challenged the appellate order by filing a second appeal before the Member, Board of Revenue and the Board of Revenue upheld the order passed by the Additional District Magistrate. The petitioners then filed a writ petition, this Court in O.J. C. No. 242 of 1966. This Court quashed the order passed by the Additional District Magistrate on the ground that the appeal could not have been disposed of without impleading the present petitioners as party-respondents who were the objectors in the C.E.A. case. Thereafter the Additional District Magistrate impleaded the petitioners as parties and on merits dismissed the appeal by order dated 19-4-1973. This order dated 19-4-1973 was assailed in this Court by the Muzawars in O.J.C. No. 447 of 1973 and the said writ application was disposed of by judgment dated 17-4-1975 since reported in (1975) 41 Cut LT 714 (Abdul Rahim v. State of Orissa). This Court came to the finding that Muzawars were not intermediaries nor were they in possession of the four hundred Bharans of land and the present petitioners should be deemed to be the tenants under the State Government in respect of the said 80.00 acres of land and shall hold the land in the same right as they were entitled to immediately before the date of vesting, as provided under Section 8(1) of the Orissa Estates Abolition Act. The Muzawars challenged the aforesaid decision of this Court in the Hon'ble Supreme Court in S.L.P. (Civil) No. 1121 of 1975. Their Lordships of the Supreme Court though had initially passed an interim order of stay, but later on by order dated 7-1-1976 vacated the stay order on a finding that so far as 400 Bharans of land is concerned where possession was found to be with the tenants, stay is vacated. Ultimately, the Muzawars withdrew the said Special Leave Petition which was dismissed as withdrawn. The said Muzawars having failed in their attempt to get the land in the estates abolition proceeding filed a suit on behalf of the intermediary Dargha being Title Suit No. 14 of 1977 and prayed for injunction against the present petitioners. They also filed an application for appointment of receiver. The Subordinate Judge dismissed the application for interim relief by order dated 27-6-1977. The Dargha then filed Misc. Appeal Nos. 188 and 189 of 1977 in this Court and this Court dismissed those appeals. While dismissing those appeals, the learned Judge came to hold:-

(3.) Mr. Rath, the learned counsel for the petitioners contends that for obtaining a settlement under the executive instructions of the Government dated 2-3-1964, commonly known as the Lease Principles, it must be found that the intermediary-applicant was in khas possession of the disputed land on the date of vesting. Though in the present case, the Tahsildar has recorded such a finding, but the said finding is without jurisdiction in view of the earlier finding of the Orissa High Court in Miscellaneous Appeal Nos. 188 and 189 of 1977, as well as the finding of the said High Court in O.J.C. No. 447 of 1973 since reported in (1975) 41 Cut LT 714 and that of the Supreme Court while vacating the interim order of stay in S.L.P. No. 1121 of 1975. Once it is held that the Dargha was not in possession of the disputed land on the date of vesting the question of getting settlement of the same under the Lease Principles does not arise and any such settlement will be without jurisdiction. He further contends that while deciding the question of settlement of land in favour of Dargha under the Lease Principles the Tahsildar had no jurisdiction to enter into the question as to whether the present petitioners who were the objectors before him have acquired a right of occupancy over the land in question and consequently, the finding on that score is without jurisdiction. Mr. Rath also urges that the impugned order of the Tahsildar is vitiated since instead of trying to find out whether the applicant Dargha has been able to establish that the disputed land was in the khas possession of the intermediary on the date of vesting, the Tahsildar called upon the present petitioners to establish that they were the occupancy raiyats in respect of the disputed land and such misplacement of onus makes the ultimate conclusion vulnerable. Mr. Rath further urges that the reference to the order of the Settlement Officer dated 2-7-1963 for coming to a conclusion that the Dargha must be presumed to be in possession is also erroneous as the Settlement Officer merely had found the Muzawars to be in possession of the disputed land and not the Dargha. Lastly, he urges that the Muzawars having pleaded in the earlier proceedings that they were in possession of the land and having lost the same, it is not open for them now to plead that it is the Dargha through the Muzawars which is in possession and such a plea must be rejected on the principle that a person cannot be allowed to approbate and reprobate. Mr. Basu appearing for the opposite parties, on the other hand, contends that in the earlier proceedings it was not necessarry for this Court in O.J.C. No. 1447 of 1973 (since reported in (1975) 41 Cut LT 714) to express any opinion as to the alleged tenancy right of the present petitioners and, therefore, the said finding, if any, is nothing. but an obiter and cannot be binding on the Tahsildar while deciding an application for- settlement under the Lease Principles. He further submits that in any view of the matter, Dargha not having been made a party in the previous proceedings and it is only the Muzawars who are parties, any finding will not bind the Dargha. He further contends that under the Lease Principles, the order of the Tahsildar is appealable and no appeal having been preferred and the petitioners having not exhausted the alternate remedy, the equitable jurisdiction of this Court cannot be invoked.