DANDAPANI NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is an appeal by the unsuccessful plaintiff in a suit for declaration of title and confirmation of possession.

(2.) THAT case of the plaintiff shortly stated is that the suit land with an area -of 16.48 acres appertaining to Sabik Khata No. 242 corresponding to Hal Khata No, 379 situated in mouza Budhibar described in greater detail in the plaint schedule originally belonged to Sk. Akbar Mohammed, Jagirdar and proprietor of the estate which vested in the State Government in 1963 by virtue of the provisions of the Orissa Estates Abolition Act. While Sk. Akbar Mohammed was in possession of the suit land included in his Anabadi holding as Nij -chas, he leased out the same in favour of the plaintiff by virtue of an unregistered deed of lease on 10 -4 -1935 on receipt of Salami of Rs. 1648/ - and on an annual rent of Rs. 16.50 and delivered possession thereof. Since then the plaintiff has been in possession of the suit land on his own right as an occupancy raiyat by raising paddy crops and vegetables thereon. After vesting of the estate with the State Government Ms status as above has been recognised and recorded in public records including the records of the current settlement He approached the Tahasildar of Chilika to accept rents from him. But the Tahasildar instead of accepting rents initiated encroachment case No. 1 of 1970 -71 against him and despite objections charged a penalty of Rs. 800/ -. Being aggrieved by the procedure adopted by the Tahasildar, the plaintiff served notice on the defendants Under Section 80 of the Code of Civil Procedure ('Code' for short) and then instituted the suit for declara - tion that he is a raiyat under the defendants in respect of the suit land and for confirmation of possession in respect thereof.

(3.) THE only relevant Issue No. 4 framed by the learned Munsif was whether the plaintiff has right, title and interest in the suit land. In answering this issue, the learned Munsif held that the unregistered deed of lease (Ext. 1) was granted in favour of the plaintiff on 10 -4 -1935, but by virtue of it the plaintiff did not acquire any title as it was an invalid document. On the date of execution of the lease the lessor had no right to grant the lease in respect of the suit land because, he was no longer the proprietor of the Anabadi holding. On the date of the lease the proprietors were the Choudhury family of Bhingarpur. Nij -chas lands follow the proprietory interest and after vesting of the estate they vested with the State Government. The plaintiff did not acquire occupancy right by adverse possession. He, however, proved his continuous possession of the suit land since the date of lease in the year 19.15 In view of the aforesaid findings the learned Munsif held that the plaintiff did not prove his title in respect of the suit land and so he dismissed the suit. The learned Munsif held that the plaintiff did not prove his title in respect of the suit land and so he dismissed the suit. The learned Subordinate Judge who heard the appeal held that the plaintiff did not set up a case of acquisition of title as an occupancy raiyat by adverse possession. He was not a raiyat under the proprietors, namely, the Choudhury family of Bhingarpur. It was not proved that the suit land was the Mij -chas land of the proprietors. Even if the plaintiff adversely possessed the suit land against the Choudhury family of Bhingarpur since 1935 till 1963, as a consequence of vesting of the estate with the State Government in 1963 he did not mature his title by adverse possession as against the State Government and so he was a rank trespasser. He did not differ with regard to the finding or possession, but as he agreed with the learned Munsif that the plaintiff did not prove his title, he dismissed the appeal,