STATE OF ORISSA Vs. KISHORE CHANDRA SAHU

JUDGEMENT

(1.) This is an appeal by the State of Orissa against the judgment of the subordinate Judge, Dhenkanal, dated 31-8-56 dismissing their appeal on the ground of limitation. The plaintiff filed a suit for a declaration that certain Government Notification was illegal, ultra vires and that he is entitled to the disputed land which was granted to him by the Ex-Ruler of Athamallik under a patta, Ext. 1. According to him, it was in pursuance of an order of the Ruler dated 10-8-1947, to sell out certain Katcha houses which had become uneconomical to the State and by virtue ot the proceeding dated 5-11-1947, a patta, Ext. 1 was executed and was handed over to the plaintiff on 3-1-1948. Page 2 of 3 In the meantime the Athmallik State had been integrated into the Province of Orissa on 1-1-1948. In the meantime after the Patta was executed in favour of the plaintiff he remained in possession of the house and the land which was Order 11 acre in extent and made certain improvements. The Sub-Divisional officer of Athmallik served a notice on the plaintiff on 18-7-1949 to surrender the site along with the house. The plaintiff eventually surrendered possession of the land and the house on 7-8-1949, and filed a suit on 13-5-1953.

(2.) Defendant No. 1 was the State of Orissa to the suit and the pro forma defendant was one Dasarathi Sahu. The 1st defendant that is the State of Orissa, did not file any written statement although time had been granted by the trial Court. Consequently the suit was heard ex parte and an ex parte order was passed on 1-4-1954 and the decree was drawn up on 9-4-1954. The trial Court by this order decreed the plaintiffs suit and directed the defendant 1, the State of Orissa, to deliver possession of the suit properties within three months. Against this decision of the trial judge an appeal was filed by the State of Orissa which was numbered as Title Appeal No. 11 of 1954. In appeal two contentions were raised by the State: (1) That the trial Judge had no jurisdiction to take cognizance of the suit in view of the Government Notification No. 12989-States dated 29-6-1949 and (2) that the action of the State Government in issuing the said notification and annulling the commitments made by the Ruler of Athmallik was an act of State and as such is not justiciable in a Municipal Court. It was however, contended on behalf of the plaintiff that the grant of land made by the Ruler of Athmallik which was an independent State under the paramountcy o the British Crown before the integration of the said state with the Province of Orissa cannot be revoked as an act of State by the Government of Orissa and that the Notification of the Government of Orissa annulling the grant was invalid.

(3.) The appellate Court on a careful analysis of the position in law came to the conclusion that the, Civil Court had no jurisdiction and as such the decree passed by the trial Judge ought to have been set aside. He, however, was confronted with another difficulty and that was in regard to the question of limitation in filing the appeal itself before the appellate Court. The lower appellate Court held that the appeal was barred by limitation and accordingly dismissed it though on merits' he found in favour of the appellant. It is against this decision that the present second appeal has been filed by the State.