PARAMANANDA MOHANTY Vs. BIRA BEHERA

JUDGEMENT

(1.) The defendants who are residents of village Chhelia under Mudhupur Grama Panchayat were sued in their representative capacity for recovery of damages amounting to Rupees 7,000/-. The suit was decreed in part for recovery of Rs. 4,500/-, with proportionate costs. The defendants in their representative capacity, except the plaintiff, were made jointly and severally liable for the said amount. The present appeal is from that decision by the aforesaid defendants.

(2.) There is a tank on plot No. 96 of village Chhelia under the management and control of Madhupur Grama Panchayat. The fishery right in the said tank is leased out for a period of three years at a time by auction held by the Grama Panchayat, Defendant No. 1 was a lessee till 31-3-1962 and on expiry of his lease, a fresh lease was granted to the plaintiff for three years in an auction held on 5-4-1962 in which he was the highest bidder. The plaintiff's lease was to expire on 31-3-1965. The plaintiff de-posited the first year's premium and was granted a patta. But on an application of the out-going lessee, defendant No. 1, the Sarpanch of the Grama Panchayat allowed him time till 20-4-1962 to catch and carry away fish reared by him during the period of his lease. The plaintiffs case is that he executed his kabuliyat on 14-4-1962 and released fish fries in the tank for the first lime on 21-4-1962 and thereby acquired possession of it. Subsequent thereto the S. D. O., Sadar directed the Sarpanch of Madhupur Grama Panchayat to hold a fresh auction in respect of this fishery as the bid amount was low, but on objection from the plaintiff, the S. D. O. withdrew his order on 24-8-1962. On 8-6-1963, the defendants with a malicious intention of putting the plaintiff to loss filed an application before the S. D. O. alleging that the fishery right in the tank had been granted to the villagers of Chhelia in the name of the plaintiff who was in the position of a benamidar and the plaintiff was about to catch fish forcibly and appropriate the same to himself. This application was sent to the police officer of Barsahi for enquiry and report and, ultimately on 29-11-1963, a preliminary order under Section 145 Criminal Procedure Code was passed and the tank was attached. The final order in the proceeding under Section 145 Criminal P. C. was passed on 30-3-1965 declaring the possession of the plaintiff as lessee on the date of the preliminary order, It will be seen that on the day following this final order the plaintiff's lease expired by efflux of time. The villagers, including defendants 1 to 11 thereafter on 9-5-1965 forcibly caught and removed the fish from the disputed tank which would be 60 maunds in weight valued at Rs. 6,000/-. The plaintiff further alleges that there was still 10 maunds of fish left in the tank of which he has been illegally deprived. He has, therefore, filed the present suit for recovery of damages to the tune of Rs. 7,000/-the loss to which he has been put on account of the illegal action of the villagers in getting the tank attached and thereby depriving him of the fruits of his leasehold interest in the tank. This, in substance, is the plaintiffs case.

(3.) The case of the defendants is that, in the past, the villagers of Chhelia used to take lease of this tank in the name of one of the villagers and the income from this tank was being utilised for the benefit of the village school. The lease immediately previous to the plaintiffs lease in question had, according to the said practice, been taken in the name of defendant No. 1 and during the period of that lease the villagers had, in fact, reared fish in the tank. When the lease was granted to the plaintiff, the villagers had still some fish left in the tank which they had not caught. The lease which plaintiff obtained in his own name was for the benefit of the entire body of villagers. In fact, the school managing committee had approved his name to be the ostensible lessee. The bid amount in fact was deposited by defendant No. 1 from the village fund, though plaintiff was recorded as the highest bidder. On the instigation of Dullav Chandra Patra, the then Sarpanch of the Grama Panchayat, the plaintiff claimed the fishery lease as his own. After expiry of the period of lease of the plaintiff the villagers applied to the Grama Panchayat and, with its permission, caught fish amounting to about 3 maunds and they paid Rupees 62/-to the Grama Panchayat. Since the fish was caught in pursuance to the order of the Grama Panchayat, the suit was not maintainable under Section 139 of the Orissa Grama Panchayat Act. They have adopted a technical plea that due to non-service of notice under Section 139 of the Grama Panchayat Act on defendants 7 and 9, the plaintiff is bound to be non-suited.