HARI BARADA Vs. KASINATH BARADA

JUDGEMENT

(1.) THE substantial question of law in this appeal is whether the Courts below by their concurrent findings committed an error in holding that the Civil Court's jurisdiction was barred under the provisions of Section 67 of the Orissa Land Reforms Act. Facts : The plaintiffs mortgaged the suit land with the defendant for Rs. 800/ -on 19 -11 -1969 and delivered possession of the land bearing Khata No. 1354 and Plot No. 164, measuring an area of 70 decimals in village Satapentha. Though the plaintiffs repaid the entire amount within a year, the defendant did not give back the possession of the land but continued to possess the same. A dispute having ensued between the parties, a proceeding Under Section 145, Cr PC was instituted in which the final order went in favour of the defendant, holding that he was in actual possession of the land. Thereafter the plaintiffs filed the suit for possession and mesne profits, without seeking any declaration. The defendant in his written statement pleaded that as the said unufructuary mortgage stood automatically redeemed by virtue of the provisions of the Orissa Money -Lenders Act after expiry of a period of seven years, i. e. in the year 1976, by an oral agreement between the two, the defendant continued in possassion of the land as a Bhagchasi and paid Rajbhag to the plaintiffs regularly. This was so agreed since the plaintiffs had to repay sum of Rs. 300/ - to the defendant. It was further pleaded that the plaintiffs had promised to pay Rs. 300/ - by 1980 but did not do so. The defendant demanded the said sum in 1981 and there was some misunderstanding between the parties which resulted in filing of the suit, as alleged by the defendant. The defendant also pleaded in paragraph 8 of the written statement that the suit was barred under the provisions of Section 57 of the Orissa Land Reforms Act.

(2.) THE Courts below considering the defendant's plea of tenancy and his evidence with regard to tenancy and more specifically basing on the admission of the plaintiff No. 1 in his evidence that he (the plaintiff) was the landlord and the defendant was the tenant, held that there was subsisting relationship of landlord and tenant between the two and, therefore, both held that the Civil Court's jurisdiction was barred Under Section 67 of the Orissa Land Reforms Act, there be dismissing the plaintiffs' suit.

(3.) IT is nowhere in the pleadings of the plaintiffs that they had inducted the defendant as a tenant with a view to create an agricultural tenancy in his favour. The mere assertion in the pleadings is that they had borrowed Rs. 800/ - from the defendant which though they repaid within a year, the defendant did not deliver back the land in question and has been in such forcible possession till now. This is what the plaintiff No. 1 stated in paragraph 5 of his evidence during cross -examination which has been so much relied on by the Courts below : 'Now defendant is the tenant in respect of the suit land. I am the landlord of the suit lands.' Just one or two lines thereafter, the plaintiff No. 1 stated as follows ;