HARI JENA AND ORS. Vs. SOMANATH HARICHANDAN

JUDGEMENT

(1.) THIS appeal by the Defendants arises out of a suit for eviction from the suit land on the ground that they are in unlawful occupation and cultivation of the same as trespassers.

(2.) THE admitted facts are that Khetra Jena, father of the Defendants was a sikimi tenant in respect of the suit land which fell to the Plaintiff 's share in a partition amongst the Plaintiff and his co -sharers. Khetra Jena was recorded as sikimi tenant in the current settlement Record -of -rights vide Ex. D. On 28 -12 -1965 Khetra Jena filed an application under Section 4(5) of the Orissa Land Reforms Act, 1960 (hereinafter referred -to as the Act) for declaration of his status as a Raiyat (Ex. B). While that application was pending adjudication, Khetra died on 31 -1 -1967. Thereafter, on 3 -3 -1967, the present suit was filed by the Plaintiff for the aforesaid relief. On 21 -12 -1907, the Appellants filed an application in the O.L.R. case to be substituted in place of Khetra (Ex. A). The suit for eviction was decreed on 22 -4 -1969. On 14 -11 -1969 the O.L.R. Officer rejected the petition for substitution and ultimately dismissed the case as will appear from the order of the Revenue Officer, a copy of which was filed before me and correctness of which was not in dispute. In doing so, he relied upon the observation of the Munsif in the suit that Khetra 's application under Section 4(5) of the Act had abated as upon his death the petition for substitution had not been filed within the period, prescribed therein, it having been filed beyond 6 months of such death.

(3.) MR . Rath for the Respondent, on the other hand, contends that Khetra would not acquire raiyati right until in a proceeding under Section 4(5) of the Act the Revenue Officer has passed an order declaring him or, upon his death, his heirs as raiyats in respect of the suit land. He relies upon the prefatory words "subject to the provisions of Sub -sections (5) to (8)" occurring in Section 4(1) of the Act. He, it therefore, proceeds to argue that as the case instituted by Khetra before the Revenue Officer was dismissed, the civil Court was not inhibited from entertaining the suit and disposing it of on merits.