BIDYADHAR SWAIN Vs. PADMANATH SINGH DEO

JUDGEMENT

(1.) THESE six second appeals arise out of appellate judgment of the Additional subordinate Judge of Berhampur affirming the judgment of the Munsif of Aska in six title suits (Title Suits Nos. 146/51, 147/51, 148/51, 11/53, 12/53: and 42/53)which were heard analogously in the two lower Courts and disposed of in one judgment. These second appeals were also heard analogously and will be dealt within one judgment.

(2.) THE appellants are all contesting defendants against whom a decree for eviction was passed by the trial court and confirmed on appeal. The suit lands appertain to survey No. 22/2 of village Olama within the former impartible estate of Dharakote in Ganjam district. The plaintiffs claimed the lands as the private (Hetta) lands of the Zamindar of Dharakote who granted ryoti pattas in their favour on 25-10-1947 after receiving valuable consideration. The contesting defendants, however, urged that the suit lands were not the Hetta lands of the Zamindar but were the ryoti (Jerayati) lands in the possession of the defendants and their ancestors for a period of forty years on payment of Rajbhag. The two lower Courts held that the suit lands were the Hetta lands of the zamindar as decided by the Deputy Director of Surveys and confirmed by the Board of revenue (Exts. 1 and 2 ). They further held that the Zamindar made a valid ryoti settlement with the plaintiffs on 25-10-47 and that the Settlement was made bona fide for valuable consideration and that therefore it would not be hit by the provisions of Section 3 of the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act of 1948. They rejected the defendants' contention that the pattas in favour of the plaintiffs were antedated. They also rejected the defendant's claim to have been in possession of the same as ryoti of the Zamindar for 40 years as alleged by them. These concurrent findings of the two lower courts were rightly not challenged in second appeal.

(3.) MR. Pal, on behalf of the appellants contended that the two lower courts committed a serious error of law in holding that the suits were not barred under article 47 of the Limitation Act. It appears that in the year 1935 there was a proceeding under Section 145 Cr. P. C. between Budhi Panigrahi and Krishna chandra Panigrahi (who were members of the 1st party) on the one hand and some of the defendants (who were members of the second party) on the other, in respect of the disputed property (Survey No. 22/2 of village Clama.)The decision of the Magistrate dated 20-12-35 (Ext. 3) was in favour of the second party who are now represented by the contesting defendants and other persons. Mr. Pal urged that under Article 47 of the Limitation Act a suit to set aside an order under Section 145 Cr. P. C. should have been brought within three years from the date of the order of the Magistrate but as the suits under appeal "were brought in 1951 they were clearly time-barred.