JAGANNATH NANDA Vs. BISHNU DALEI AND ORS.

JUDGEMENT

(1.) THIS is an appeal from the judgment of our learned brother A. Misra, J. in Second Appeal No. 26 of 1967 which arose out of a suit filed by the Plaintiff -Appellant for declaration of his title to plot Nos. 2027, 2042 and 2042/3493 appertaining to Khata No. 1327/24 of Cuttack town and for recovery of possession of the same after setting' aside the order passed in favour of the Defendant -Respondents in a proceeding under Section 145, Code of Criminal Procedure. The disputed properties appertain to Touzi No. 2498 of which Motilal Pandit (Defendant No. 10) was the intermediary. The estate vested in the State Government on 1 -5 -1954. It is the Plaintiff's case that thereafter the proprietor who after reclaiming the disputed lands was in khas possession of the same included his name as a tenant in respect of these lands in the Zamabandi which he had submitted to Government. By operation of Section 7 of the Orissa Estates Abolition Act, 1951 (Act 1 of 1952) (hereinafter referred to as the Act), these lands must be deemed to have been settled with Defendant No. 10 as an occupancy raiyat under the State Government. Defendant No. 10 thereafter' paid rent to Government which was accepted thus recognizing his occupancy rights in the lands. On 23 -11 -1957 Defendant No. 10 sold the suit plots to the Plaintiff for a consideration of Rs. 4,000/ - by the registered Kabala Ext. 8. Since then the Plaintiff remained in possession thereof in his own right. The Defendants who are residents of mouza Pithapur, were the disputed lands are situated filed in 1958 -an application under Section 5(i) of the Act challenging the validity of the sale deed Ext. 6. This application was rejected by the order Ext. 6 dated 24 -9 -1960 of the Additional District Magistrate, I Cuttack which was confirmed in appeal by the Board of Revenue. The Defendants thereafter created disturbances in the possession of the Plaintiff in respect of the disputed lands. There was a proceeding under Section 115, Code of Criminal Procedure which terminated in favour of the Defendants. The Plaintiff then instituted the suit claiming the reliefs above -mentioned.

(2.) THE contesting Defendants while admitting that the suit plots form part of the Anabadi appertaining to Touzi No. 2498 of Defendant No. 10 stated that on the abolition of the estate with effect from 1 -5 -1954, Defendant No. 10 ceased to have any right, title and interest in the touzi as well as in the Anabadi appertaining to the same including the disputed lands. They denied that Defendant No. 10 had either reclaimed the disputed lands or was in khas possession of the same as claimed in the plaint. Defendant No. 10 having failed to file any claim in the manner prescribed by Section 8 -A of the Act, he did not acquire any occupancy rights in respect of the disputed properties. He had no title to the same and consequently under the sale deed Ext. 8 the Plaintiff did not acquire any title to the suit lands. The disputed properties are a tank and its embankments and they were being used by the people of the locality for communal purposes from time immemorial and by such user they have acquired a right thereto. After the abolition of the estate Defendant No. 10 managed to get some rent receipts from the State Government in token of having paid rent for the disputed properties. But this cannot confer any right of occupancy on Defendant No. 10 in respect of the disputed properties, They admitted that heir application under Section 5(i) of the Act was rejected by the Collector but they pleaded this could not have the effect of conferring any title on Defendant No. 10 or on the Plaintiff.

(3.) IN the second appeal, our learned brother upheld the concurrent findings of the Courts below that the disputed plots do not constitute communal property and that Defendants do not possess any customary rights therein. It may be stated here that in the second appellate Court, the Plaintiff filed an application for permission to amend the plaint by adding therein an alternative claim to the effect that assuming that his vendor Defendant No. 10 had not acquired an occupancy right in the suit properties, the Plaintiff after purchase having paid rent for the disputed lands to the State and the State having accepted rent from him, he acquired an occupancy right in the lands. The learned Judge held that Defendant No. 10 having admittedly not preferred any claim under Section 8 -A of the Act no tenancy rights accrued in his favour and consequently the Plaintiff under the sale deed Ext. 8 did not acquire any right in the disputed properties. It was contended before him that even assuming that Defendant No. 10 did not acquire any such right under Section 7 of the Act, and consequently the disputed lands vested in the State, Defendant No. 10 having subsequently paid rent for the same to the State which was accepted, he acquired rights of occupancy in the properties. This contention was rejected. On the ground that there was no such pleading in the plaint. Dealing next with the alternative case set up by the Plaintiff by seeking an amendment of the plaint, the learned Judge held that to allow the application would amount to allowing the Plaintiff to make out a different title' quite foreign to the one on the basis of which' he sought relief in the plaint and therefore rejected the petition. He incidentally observed that even if the petition for amendment is allowed still the Plaintiff cannot succeed on merits because mere payment and acceptance of rent would not be sufficient in all circumstances to infer creation of a tenancy unless the intention to transfer any property by one to another is established and that there is no such evidence on record to show that by accepting rent from the Plaintiff the State intended to create a tenancy in his favour in respect of the disputed lands. In the result, the second appeal was allowed and the Plaintiff's suit was dismissed. The learned Judge, however gave leave to appeal to the Plaintiff and accordingly the present appeal is filed by the Plaintiff -Appellant.