MAGULU JAL Vs. BHAGABAN RAI

JUDGEMENT

(1.) THE case of the plaintiff may be stated in short. Schedules A, B and C of the plaint constitute the disputed lands. A and B Schedules are Bhorga lands. THEy were a part of holding No. 1 of the 3rd settlement (1927) in the ex-State of Sonepur. Schedule A and B lands respectively comprise 3.21 acres and 15.52 acres. Schedule C lands were in holding No. 48 of the 3rd settlement and were raiyati lands with an area of 39.84 acres. All the three schedule lands were recorded in the name of Jaisingh Rai, father of the plaintiffs, in the 3rd settlement. Schedule A and B lands were converted into rayati by order (Ext. N) of the Collector. Bolangir, on 16-12-1962 in Bhogra Conversion Proceedings in respect of village Siali in which the suit lands are situated. Jaisingh Rai died on 16-11-1954. Till his death he was in peaceful physical possession of the disputed lands in his own right, title and interest. After his death plaintiffs inherited the properties and were in possession thereof. At the time of harvest of the crops in 1957, defendants 1, 6 and some other defendants disturbed the possession of the plaintiffs. In a proceeding under Section 145, Criminal Procedure Code the possession of the plaintiffs was declared in respect of A and B Schedule lands. THE preliminary order in that case was passed on 23-11-1957. THEreafter plaintiffs leased out A and B Schedule lands to Bhikari Das and Udhaba Sahu for one year and cultivated the C Schedule lands themselves. Defendants again created disturbance. An order under Section 145, Criminal Procedure Code in respect of A and C Schedule lands was passed in their favour on 10-7-1963. In the current settlement of the year 1955-56 possession of A Schedule lands had been recorded in the names of defendants 1 and 2 and the Collector on the basis of such recording settled A Schedule lands in the names of defendants 1, 6, 9, 14, 17 and 19 on raiyati basis. Plaintiffs filed an appeal in 1963 against the order of the Collector before the Revenue Divisional Commissioner which was dismissed by the order (Ext. 11) on 15-3-1966. THE suit was filed on 16-5-1964 during the pendency of the appeal before the Revenue Divisional Commissioner for declaration of title and recovery of possession of the disputed lands after setting aside the order of the Collector (Ext. N) dated 16-12-1962 settling A Schedule lands on the defendants on raiyati basis. Defendants 1 to 3, 6, 7, 9 to 11, 14, 17, 19, 20 and 23 filed a joint written statement. Most of the facts are not disputed. It was averred that the ancestors of the defendants were raiyats of the disputed lands for more than sixty years. THEy had reclaimed the land by being brought into the suit village by the ancestors of the plaintiffs. THEy were in cultivating possession and as such A Schedule lands were recorded in the current settlement in 1955-56 in their names. THE order of the Collector settling A Schedule lands on them is valid and legal and the Civil Court has no jurisdiction to annul the settlement.

(2.) THE learned Munsif, Sonepur, after allowing parties to go into evidence on all disputed questions held that plaintiffs were in possession of the disputed lands all through and defendants were not in possession and that the order of the Collector settling A Schedule lands on the defendants in the Bhogra Conversion Proceedings was contrary to law and the Civil Court had jurisdiction to set it aside. He set aside the settlement on the defendants in respect of A Schedule lands and granted a decree for declaration of title and recovery of possession of the disputed lands. THE contesting defendants filed an appeal before the Subordinate Judge, Bolangir, which was dismissed. Those defendants filed the second appeal. During the pendency of the second appeal the Orissa Merged Territories (Village Offices Abolition) Act, 1963 (Orissa Act 10 of 1963) (hereinafter to be referred to as the Act) came into force in the ex-State of Sonepur from 1-12-1972.

(3.) IN Dhulabhai v. State of M. P., AIR 1969 SC 78, a Constitution Bench approved the first and third case and so also the second case has been approved in several decisions of the Supreme Court. After reviewing all the relevant authorities their Lordships summed up the several propositions to be kept in view in paragraph 32 of the judgment