NARASINGH CH RAY Vs. RADHAGOVIND DEB

JUDGEMENT

(1.) THIS writ application is directed against the orders passed by the authorities under the Orissa Estates Abolition Act, 1951 in Annexures 1, 2 and 3 dated. 10.5.1965, 6.6.1967 and 21.10.1967 respectively.

(2.) LEARNED counsel for the opposite parties raised a preliminary objection with regard to maintainability of the writ application on the grounds of delay and latches. The final order passed by the Board of Revenue in the O.E.A. proceeding was on 21.10.1967 and the writ application has been filed in the year 1993 after more than 25 years. Since preliminary objection was raised on the above grounds, the case was initially heard on the above point. Learned counsel for the petitioner referring to some decisions submitted that if the Court is satisfied that the petitioner has a strong case to be made out during hearing, the question of delay and latches will not stand on the way of the Court. Reliance was placed by the learned counsel for the petitioner on a decision of the Apex Court in the case of Dehri Rohtas Light Railway Company Limited v. District Board, Bhojpur and Ors., reported in AIR 1993 SC 802. The Apex Court in the said case held as follows :

(3.) APART from the above, from the judgment delivered in the second appeal, it appears that the opposite parties had filed a suit for recovery of possession. At the time of hearing, it was stated at the Bar that the petitioner had been granted lease in respect of the suit property by the opposite parties for a period of one year and thereafter he did not vacate the same and continued in forcible possession, thereof. It is stated by the learned counsel for the petitioner that the petitioner is continuing in possession of the property till today. Shri Mohanty, learned counsel for the petitioner submitted that since the petitioner was a tenant under the opposite parties on the date of vesting, the land should have been settled in favour of the petitioner under Section 8 of the O.E.A. Act and the application filed by the opposite parties for settlement of the land in their favour as intermediary was not maintainable. Specific case of the petitioner before this Court in the writ application is that he continued as a tenant under the opposite parties till the date of vesting and by order of this Court in the first appeal he had also paid rent. If the petitioner's stand in the writ application is such, I do not find any reason as to why a plea of adverse possession was advanced in the suit from which the second appeal arose. Plea of adverse possession is not available to a tenant since possession of tenant is only permissible. From the plea taken in the civil suit, it is clear that the petitioner continued as a tenant for one year only in between 1940 to 1950 and thereafter remained in forcible possession thereafter till the same vested in the State Government under the Orissa Estate Abolition Act and because of the aforesaid reason plea of adverse possession was advanced before the civil Court. The above finding gets support from the following averment made in the appeal memo filed before this Court in S.A. No. 180 of 1983. It will not be out of place to mention that the petitioner was defendant No. 2 in the said suit.