STATE OF ORISSA Vs. SANATAN SINGH AND ANR.

JUDGEMENT

(1.) SHORN of unnecessary details, the facts involved in this suit are that plot No. 28 with an area -18 -75 acres, plot No. 27 -102 -95 acres and plot No. 33 -30 -30 acres belonged to the Raja of Kanika who was the landlord. Plot Nos. 27 and 33 have been recorded as river in the settlement khatian (ext. A) and in the partition decree (ext., 2) as Tandi patha, Bali and water. Plot No. 28 is recorded as Pala, and in the partition decree as Tandi patha. Plot No. 28 is recorded as the Nijchas land of the ex -proprietors while plot Nos. 27 and 33 have been recorded as Anabadi land Plaintiff claims to have come upon this land before 194::5. Plaintiff's case is that he cultivated about 44 acres of land out of plot Nos. 27 and 33 in the year 1951 on payment of rent and he was reclaiming the other lands where Tandi grass was being grown. The estate vested some time in 1952 or 1953. His further case is that for one year after the vesting he held the land under the Anchal on payment of rent. Next year it was put to auction and Defendant No. 2 was the highest bidder. Plaintiff asked for a declaration of his right of occupancy and for a, permanent injunction to restrain the Defendants from interfering with his possession.

(2.) THE findings of the learned Subordinate Judge are somewhat confused in view of the fact that he did not appreciate the legal position involved in this suit. Essentially his findings are that in respect of the undemarcated 44 acres in plot Nos. 27 and 33, Plaintiff has acquired right of non -occupancy. In respect of the other land Plaintiff has a temporary tenancy right. What is the nature and character of that right the learned Judge does not determine. He merely tenders certain advice to the Collector as to how Plaintiff would be dealt with regard to those lands. This is hardly what a civil Court should do which is concerned with the determination of rights in precise terms. It is, therefore, necessary to examine the entire law on the point and ascertain what exactly is the nature of the right which the Plaintiff has in the disputed lands.

(3.) IN paragraph 15 of his judgment the learned Subordinate Judge has come to a conclusion that Plaintiff is a settled raiyat of the village. As a raiyat, he held the disputed land. Admittedly, the disputed lands constitute Char lands. The law on the point is found in Section 234 of the Orissa Tenancy Act. The relevant portions of this section run thus: