HADIBANDHU SANTARA Vs. BAURIBANDHU SANTARA

JUDGEMENT

(1.) BAURIBANDHU (Plaintiff) and Hadibandhu (defendant 1) are brothers. Defendants nos. 2 to 4 are the sons of defendant No. 1. Plaintiff's case is that the disputed property belonged to the ex-Intermediary Satyabadi Ota and his brothers and that it was their private land. He is separate from defendant No. 1 and his sons for more than 25 years. Originally, he cultivated the disputed land as bhag tenant under Satyabadi Ota and his brothers. While he was a bhag tenant, the ex-Intermediary conferred occupancy right on him by commuting the produce rent into cash rent and in evidence thereof accepted rent from him on 11-4-46. Plaintiff thus acquired occupancy right with effect from that date. He was in khas cultivation on payment of rent In 1956. the estate of the ex-Intermediary vested in the State Thereafter plaintiff continued in possession on payment of rent to the anchal Defendants Nos. 2 and 3 were bhag tenants under Satyabadi Ota in respect of other lands There were ill-feelings between the plaintiff and defendants. The latter were acquitted in a criminal case filed by the plaintiff. On 12-9-60. they threatened to dispossess the plaintiff. The suit was filed for declaration of title, confirmation of possession and in the alternative for pecovery of possession. Defendants admit that they are separate from the plaintiff for about last 20 years, they also claim bhag tenancy under Satyabadi Ota before 1946. On 6-4-1946. defendant No. 1 claims to have taken a yearly lease for cultivation of the suit plots. They claim occupancy right in the disputed land as they are settled raiyats of the village.

(2.) THE learned Munsif held that the plaintiff failed to prove his title and possession, and that the transaction dated 11-4-46 by which plaintiff claimed right of occupancy in the suit land was hit by Section 4 (1) (i) of the Orissa Communal, forest and Private Lands (Prohibition of Alienation) Act, 1948 (Orissa Act I of 1948 ). On the aforesaid findings, he dismissed the plaintiff's suit. In appeal, the learned Addl. Subordinate Judge held that plaintiff succeeded in proving his title and possession within twelve years of the suit. He accordingly decreed the plaintiff's suit. He. however, expressed no view as to whether the lease in favour of the plaintiff creating occupancy right on 11-4-46 was hit by Act T of 1948. Against the appellate decree, the second appeal has been filed. On 26-8-66, an application was filed by the appellants Under Section XLR Rule 27 c. P. C. accompanied by a certified copy of the application filed by Hadibandhu before the competent Revenue Officer for recognition of his bhag tenancy right. Appellants prayed that the certified copy might be admitted as piece of additional evidence and on the basis thereof it be held by this Court that the suit is not maintainable. Though the application was served on Mr. Misra appearing for the plaintiff, no counter has been filed. Mr. Misra does not dispute the fact that defendant No. 1 has filed an application before the competent Revenue authority of which the certified copy has been filed.

(3.) MR. Mohapatra raised the following contentions: