MANI CHARAN SWAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) KA schedule land consists of 0. 08 acre out of C. S. plot No. 816 recorded as gochar in Anabadi Khata No. 501 of village Juna in the district of Cuttack. Kha schedule land consists of 0. 05 acre out of C. S. plot No. 738 recorded as Rasta in sarbasadharan Khata No. 193 of village Purusottampur in the district of Cuttack. Both the plots are contiguous. They are also contiguous to the house and homestead of the plaintiff. Plaintiff's case is that he is in possession of those two plots of lands from 1940 onwards and has acquired title of an occupancy tenant by 11-52. He has been in possession all through. He wants declaration of title, confirmation of possession and for permanent injunction. The State of Orissa, the Khasmahal Tahasildar, Marsaghai and the S. D. O. , Kendrapara, are defendants 1 to 3 respectively. Defen-dents 4 and 5 are villagers of Juna and defendants 6 and 7 are villagers of Puru-sottampur. The villagers of Juna and Purusottampur were sued under Order 1, Rule 8, Civil Procedure Code. Defendant 5 is dead, but that does not affect the case. The cases of the defendants are identical. Their case is that the disputed Ka and Kha schedule lands are Gochar and Rasta in respect of which no occupancy right can accrue and that the plaintiff came into possession of the same 7 or 8 years prior to the suit. The trial Court decreed the suit confirming possession of the plaintiff and issued a permanent injunction. Against the trial Court's decree, defendants 1 to 3 filed one first appeal and the rest of the defendants filed another appeal before the lower appellate Court. Both the appeals were allowed and the suit was dismissed. The lower appellate Court held that by virtue of Section 55 of the Orissa Tenancy Act the plaintiff could not acquire any occupancy right and Section 251, O. T. Act, was a bar to accrual of any right. It further held that the plaintiff was in possession of ka schedule land from 21-2-43 as per Ex. 7. With regard to Kha Schedule land its finding is that the plaintiff failed to prove adverse possession. Against the two appellate decrees arising out of the same judgment, plaintiff has filed two second appeals.

(2.) MR. Swain assails the conclusions of the lower appellate Court as being contrary to law. After having heard him fully I am clearly of opinion that the finding of the learned Sub-Judge regarding Kha Schedule land cannot be assailed. Plaintiff has failed to prove acquisition of title by adverse possession against Kujang estate for more than 12 years prior to the vesting on 27-11-52. The suit with regard to Kha schedule land was rightly dismissed.

(3.) WITH regard to Ka schedule property it may be pointed out that the learned subordinate Judge made a confusion in constituting "rajasarkar" in the settlement entry as meaning or referring to Government. The word "rajasarkar" there refers lo Kujang estate and not to the Government. There was no pleading that the disputed land belonged to the Government before vesting in 1952. The admitted case of the parties was that before 1952 both Ka and Kha schedule lands belonged to the Kugang estate. Section 55 (c) of the O. T. Act says that no occupancy right shall be acquired in lands recorded as belonging to the Government. As the lands belonged to the Ku. jang estate, there was no bar to accrual of occupancy right by prescription before 1952. The learned Subordinate Judge should not have allowed himself to be confused by raising imaginary contentions having no relevance to the materials on record. Similarly there was no pleading with reference to Section 251 of the O. T. Act. The ingredients referred to in that section must be proved before it is invoked. Any argument on the basis of this section was therefore inadmissible. The conclusion of the learned Sub-Judge that Sections 55 and 251 were obstacles to the accrual of occupancy right by the plaintiff by prescription was erroneous.