SRIMATI KANAKABALA SWAIN (DEAD), AFTER HER, HER L.RS. SANDHYARANI DEY AND OTHERS Vs. STATE OF ORISSA AND ANOTHER

JUDGEMENT

(1.) This appeal has been filed by the appellants challenging the judgment and decree dated 21.11.1979 and 28.11.1979 respectively passed by the learned Subordinate Judge, Balasore in T.S. No. 95 of 1974-I in dismissing the suit. The original plaintiff - Jagadish Chandra Swain, father of the present substituted appellants, daughter and sons, appellants 2 and 3 filed the suit, being O.S. No. 95 of 1974-I in the court of the learned Subordinate Judge, Balasore for declaration that the plaintiff was the occupancy tenant in respect of the suit land and the proceeding under section 5(i) of the Orissa Estate Abolition Act (in short, 'the Act') being void and nullity, did not affect their right.

(2.) The suit land measures Ac.10.00 and was in the Anabadi Khata within the Zamindary of defendants 3, 4 and 5, namely, Jagdish Kumar Mandal, Manindra Kumar Mandal and Dinendra Kumar Mandal. They inducted Jagdish as tenant in respect of the suit land and have executed a registered lease deed on 21.5.1948. The father of the plaintiff and after his death, the plaintiffs and their mother were in cultivating possession thereof as a tenant and were paying rent to the Zamindar. In view of the fact that the original plaintiff - Jagdish Chandra Swain was deaf and dumb and mentally insane, he filed the suit represented by mother guardian. After the vesting of the Estate under the Estate Abolition Act, the original plaintiff got PARCHA in his favour. The landlord had only cultivated a small portion of the said anabadi land prior to the lease deed, but after the lease, the plaintiff's father reclaimed all the lands and had been cultivating the same before the date of vesting and on the date of vesting. Thus, he acquired rights under Section 61 of the Orissa Tenancy Act as a sthitiban raiyat in respect of Lot No. 1 of the suit schedule land. After vesting of Estate, the plaintiff having not received the PARCHA for all the lands leased out to him, on enquiry, he came to learn that a case under Section 5(i) of the Act had been initiated by the Tahasildar whereunder lease had been cancelled on 23.8.1971 and the plaintiff could know about such cancellation only on 7.6.1974.

(3.) The contention of the plaintiff in the suit was that the proceeding under Section 5(i) of the Act was illegal and the order passed therein is unenforceable and without jurisdiction. The proceeding against him is also void due to non-observance of rules of natural justice. No notice was served on Jagdish or his guardian nor they have been called upon to give show cause or to give evidence in support of the same. The plaintiff was a born idiot and, as such, the Collector passed the impugned order in a mechanical manner although no document was filed on behalf of the lessee. He falsely recorded that registered lease deed and rent receipts were filed in the said proceeding. In view of the collusion of the Zamindars with the State Government, the plaintiff had no knowledge of the proceeding till three years of cancellation. Thus, the O.E.A. Collector acted beyond his jurisdiction and passed order cancelling the lease on 23.8.1971 in Misc Case No. 273/304 of 1970/71 without following the procedure laid down in law on a finding that the lease has been created after 01.01.1996 by the ex-landlords to evade vesting and to get higher compensation. It was submitted by the plaintiff that such finding was without any material on records. There was no valid proceeding under Section 5(i) of the Act and in any view of the matter, such proceeding will not affect the occupancy right of the plaintiff in respect of the suit land. The plaintiff being in possession of the suit land as an occupancy raiyat/sthitiban tenant and his possession over the suit land being threatened, the plaintiff filed the suit for the relief that the proceeding under Section 5(i) of the Act is without jurisdiction, unenforceable and illegal and, as such, liable to be ignored and for declaration of his occupancy right over the suit land. The cause of action for the suit has been stated to be on 7.6.1974 when the plaintiff could know about the order of cancellation under the aforesaid provisions of the Act.