NATA PADHAN Vs. BANCHHA BARAL

JUDGEMENT

(1.) THE material facts may be stated in chronological order to bring out the points of controversy into bold relief. On 14-4-1950 defendants 1 to 3 filed an application under the Orissa Tenants Protection Act in Misc. Case No. 3 of 50-51 alleging that they were bhag tenants under late Gopal Satapathy and were in possession of the disputed lands on 1-9-1947. On 9-5-50 Gopal Satapathy executed a registered sale deed (Ex, 6) in favour of Biswanath Mohapatra (defendant-4) in respect of the disputed lands. On 13-5-1950 defendant-4 executed a Patta (Ex, 4) inducting the plaintiffs as bhag tenants for cultivating the disputed lands for one year. A proceeding Under Section 145, Cr. P. C. was started between the plaintiffs and defendants 1 to 3 in Misc. Case 4/51. Preliminary order was passed on 6-1-51. On 17-1-51 Misc. Case No. 3/50-51 was decided against defendants 1 to 3 by the trial court. By an order (Ex. A) dated 5-3-51 Misc. Appeal No. 205/1950-51 filed by defendants 1 to 3 against the order of the O. T. P. Collector dated 17-1-51 was allowed. On 10-3-53 final order in Misc. Case No. 4 of 1950-51 Under Section 145, cr. P. C. was passed. The substantive part of this order (Ex. 2) may be quoted--I, therefore, find the first party Banchchaha Barah to be in possession of the land on the relevant date and two months prior to and declare him to be in such possession and order that his possession shall not be disturbed until he is evicted in due course of law. I also hereby prohibit the second party members not to interfere with such possession of the first party until they get him evicted from the land. This order shall of course be subject to the order of the Hon'ble High Court which may be passed in revision matter pending before it. An application by defendants 1 to 3 tor appointment of receiver against gopal Satapathy in O. S. 82/53 in the Court of the Munsif, Puri, was dismissed by an order (Ex. 3) dated 20-12-54. Again Misc. Case No. 143 of 1951 Under Section 145, Cr. P. C. was started between the parties, but the proceeding Under Section 145 (1) was cancelled in view of the fact that there was an order in the previous proceeding Under Section 145. Cr. P. C. On 11-5-56 Gopal Satapathy's revision to the Board of revenue against the appellate order (Ex. A) in the O. T. P Act case was dismissed as per order (Ex. C ). On 11-9-57 O. S. 82/53 filed by the defendants against Gopal Satapathy about their Bhagchasi right was dismissed for default in the presence of the plaintiffs. On 19-11-58 the present suit was filed. Plaintiffs asked for declaration of their right of occupancy and for confirmation of possession. Defendants contested the suit claiming that they are bhag tenants in respect of the disputed land and are all through in possession and that the plaintiffs have neither title nor possession. The courts below decreed the plaintiffs' suit. Against the confirming judgment the second appeal has been filed.

(2.) THE concurrent findings are--

(3.) THE finding that the transfer by Gopal Satapathy in favour of defendant-4 is genuine and not benami is a pure finding of fact and cannot be assailed in second appeal. The transfer included both the landlord's and tenant's interests. By then the O. T. P. Act case, filed by defendants 1 to 3 against Gopal Satapathy, was pending. The question for consideration is whether the tenant's interest in the disputed lands would be transferred to the prejudice of defendants 1 to 3. In other words, whether it would be hit by the doctrine of lis pen-dens under Section 52 of the Transfer of Property Act. This section enacts that during the pendency in any court of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which mav be made there except under the authority of the Court and such terms as it may impose. The principle of this section is fully applicable to a proceeding pending before the revenue or Rent Court. The proceedings started by defendants 1 to 3 against gopal Satapathy were not collusive. Therein the right to immoveable properly was directly and specifically in question. Defendants 1 to 3 claimed non-evictability from the disputed lands under Orissa Tenants Protec-lion Act (hereinafter referred to as the Act ). The transfer was valid as between the parties thereto, but the tenants' interests cannot be transferred so as to affect the rights of defendants 1 to 3 under the final order to be passed in the proceedings under the Act. The plain language of the section supports the aforesaid conclusion. The legal (position is also well settled on authority: see AIR 1956 S. C. 593, Nagubai v. B. Shamrao. To recall the facts, the trial Court in the proceedings under the Act dismissed the application filed by defendants 1 to 3. But the order was set aside in appeal on 53-1951. Gopal Satapathy's revision to the Board of Revenue against the appellate order of the A. D. M. in the case under the Act was dismissed on 11-5-56. The purchase by defendant-4 of the tenants' interests would be governed by the doctrine of lis pendens. The Board of Revenue held that on 1-9-1947 defendants 1 to 3 were tenants under Gopal Satapathy. Defendant-4 being bound by such order, defendants 1 to 3 would be tenants under him. Two questions arise for consideration at this stage-