STATE OF ORISSA Vs. FAKIR CH. SETHY

JUDGEMENT

(1.) We have jointly heard FA No. 10 of 2001 and three other Writ Petitions i.e. W.P. 7437 of 2008, W.P. 7962 of 2008 and 8874 of 2008. The details of the suit against the decree of which FA had arisen is given below. The Plaintiffs in that suit are the sons of the person called Nidhi Sethi. In order to protect the decree, they have filed W.P. 7962 of 2008 ft W.P. 8874 of 2008. Their prayer in those Writ Petitions are that as they are entitled to the suit land, the allotment of the same or part of it by the State Govt. in favour of the Petitioner in W.P. 7437 of 2008 is illegal that it is to be cancelled; that the attempt made thereon to make construction is to be prevented and the allotment itself is to be quashed. On the contrary, the Petitioner in W.P. 7434 of 2008 prayed that the land never belonged to the Petitioners in the other Writ Petitions who are plaintiffs in the suit, that the settlement records in their favour shall be quashed as illegal and direction shall be passed to make use of the disputed land for public purpose.

(2.) IN all these matters, the issue is as to whether the disputed land belongs to the Govt. to be rightly allotted to the Petitioner in 7434 of 2008 or it belongs to the Respondents in FA, so that Govt. may not interfere. These are concerned with disputed questions of law and fact &, therefore, whatever result that is arrived in FA may flow to the Writ Petitions. Now we will deal with the FA first.

(3.) THE Respondents -Plaintiff had filed the suit for declaration of right of occupancy and for confirmation of possession. Their contention in the plaint are as follows: (a) That the plaintiffs are Scheduled Caste persons. The suit property belongs to the estate of patia & its proprietor Kanika Raja. The father of the Plaintiff Nidhi Sethi was serving as Dhobi in the estate of Kanika Raja. Tenancy right was created in suit land for the service rendered as Dhobi. On 14.3.1942, Nidhi was delivered with an extent of Ac.44.16 of land with clear demarcation out of Ac.75 Plot No. 292 of Khata No. 393. Nidhi acquired the right to hold the land. He reclaimed the land'& brought it for cultivation. The plaintiffs are the successors of Nidhi. (b) On & from the date of induction, the said Nidhi held the land under the proprietor & the contract was to pay rent for the land. Nidhi continued to possess as tenant under the inter -mediary & also paid rent to the Govt. Thus, Nidhi became a settled raiyat & got occupancy right by the operation of provisions of Orissa Estate Abolition Act (herein after referred to as the 'Act'). (c) In 1964, settlement operation was started that was finalized in 1974. During 1967 Nidhi died & Plaintiffs could not take appropriate steps to record their name & as a result, the entire sabik plot along with area of Plaintiffs were wrongly recorded in the name of the Govt. Nidhi's right cannot be extinguished & was heritable. Govt. is entitled only to claim arrears of the rent. (d) After publication of 1974 ROR when Plaintiff tendered the rent, Rl did not accept it. Non -payment of rent by Plaintiff cannot be a ground to cancel his occupancy right. (e) In the 1988 settlement also the officers copied the ROT of 1974 recording the name of Govt. except identifying the suit area as a separate holding with a note of possession of plaintiffs family. Due to Intervention of Defendant Nos. 3 & 4 in 1990, proceedings under Section 144 Cr.P.C was initiated, wherein it was found that possession of Plot No. 1950 was handed to NCC Directorate. Although aforesaid Defendant Nos. 3 & 4 could raise boundary wall over a portion of the suit property during the pendency of the above proceedings, Plaintiff still continued in possession by residing in the premises. But the above Defendants with the assistance of the Govt. were trying to raise building. Therefore, the suit is filed for declaration of occupancy right of Plaintiff & injunction.