MALLIA BUDHI THAKURANI Vs. UDAYNATH PARIDA

JUDGEMENT

(1.) PLAINTIFF No. 1 is a deity and plaintiff No. 2 is the Marfatdar. Their case is that plaintiff No. 1 was in khas possession of the disputed property as an intermediary on the date of vesting. On an application made under Section 7 of the Orissa estates Abolition Act, 1951 the lands were settled on plaintiff No. 1 as he was the intermediary in khas possession. It was admitted in the plaint itself that the defendants 1 to 4 were recorded as occupancy rayats in respect of the suit lands in the last current settlement of the year, 1931. Their case, however, was that in fact defendants 1 to 4 were not occupancy tenants, they were influential men of the locality and to exercise control over plaintiff No. 2 defendants 1 to 4 were nominally recorded as occupancy rayats. As defendants 1 to 4 were recorded as rayats they transferred the disputed property in favour of defendants 5 and 6 by a registered sale deed (Ext B) on 7-1-1957 without any consideration. The suit is filed for declaration of title and confirmation of possession, in the alternative for recovery of possession. Defendant No. 5 alone contested. His case is that the disputed properties were the rayati lands of defendants 1 to 4 which he and defendant No. 6 purchased for consideration. No notice had been served on them as to the fact that an application had been filed by plaintiffs 1 and 2 under Section 7 of the Orissa estates Abolition Act and the settlement made by the Collector thereunder is without jurisdiction and is not binding on defendants 5 and 6. He also denied the averment in the plaint that the disputed properties had been nominally recorded in the name of defendants 1 to 4 for exercise of adequate control on plaintiff No. 2 and for proper discharge of duties as a Marfatdar.

(2.) THE learned courts below have concurrently found that defendants 1 to 4 were occupancy rayats of the disputed lands and that they had not been nominally recorded as occupancy tenants in 1931. They further held that the Collector had no jurisdiction to settle the disputed lands on plaintiff No. 1 as the properties belonged to defendants 5 and 6 who were occupancy tenants thereof. The finding that defendants 1 to 4 were the occupancy rayats of the disputed, lands in the current settlement of the year, 1931 in their own right, title and interest is a pure finding of fact and is not assailable in Second Appeal.

(3.) THE only question for consideration in this appeal is whether the settlement effected by the Collector of the disputed properties on plaintiff No. 1 is valid or without jurisdiction. No documents have been produced by the plaintiffs that the disputed properties were settled on plaintiff No. 1 by the Collector under Section 7. Only two rent receipts (Exts. 1 and 2/a) were filed. The learned appellate court has held that those two documents have not been properly proved and no reliance can be placed on those documents in proof of settlement.