GOPAL CHANDRA DEUTTA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is a Plaintiff's second appeal against the reversing judgment of the lower appellate court arising out of suit brought by the Plaintiff for a declaration that he is not liable to pay the amount for which the Defendant, that is, the State Government of Orissa, had issued a certificate for realisation of the dues as land revenue. The case is coming from the Sambalpur area and the subject matter is in respect of some forest area of Barmunda. The case is that Coupes Nos. 35 and 36 were put up for auction sale by the forest authorities and were knocked down in favour of the present Plaintiff No. 28 -8 -51, the Plaintiff being the highest bidder for Rs. 800/ -. Accordingly a contract, was signed between the parties in accordance with law and it was duly sanctioned by the higher authority of the Forest Department on 11 -9 -1951. The contract was in respect of 74 acres of forest area for removal of timbers. The Plaintiff's assertion is that he had not taken delivery of possession and on 20 -11 -1951 he found that many of the trees of the area had been removed. He further asserts that in fact 23 acres of the forest area, leased out to him, were made completely clean by removal of the timbers standing thereon. This position is not denied by the Defendant. As the Plaintiff did not take delivery of possession the Defendant cancelled the lease and brought certificate proceedings (Case No. 4/6 -86 of 1952 -53) for realisation of Rs. 822/15/ -. It is after this that the present suit has been brought by the Plaintiff pleading non -liability on the ground that it was mandatory on the part of the Defendant under the provisions of Rule 12 of the Forest Contract rules to identify the area before the Plaintiff could take delivery of possession. There was therefore a breach of the contract on the part of Defendant and the Plaintiff is therefore not liable. The defence was assertion of the liability of the Plaintiff on account of the breach of the contract by the Plaintiff himself in not having taken delivery of possession.

(2.) THE lower appellate Court has not only dismissed the Plaintiffs suit on merits but also on a preliminary ground of law which goes to the root of the Plaintiff's case to maintain the suits. In order to appreciate the preliminary point on the basis of which the suit has been dismissed, we shall have to refer to the provisions of two sections of the Central Provinces Land Revenue Act (Act 18 of 1881). I mar note that there is no dispute over the position by Mr. Dasgupta, appearing on behalf of the Plaintiff -appellate, that the amount for which certificate proceedings were started is realisable as land revenue. The two relevant sections are 114 and 152 of the Act. Section 152(a) and (b)(10) which are relevant for the purpose run as follows:

(3.) MR . Dasgupta has drawn my attention the two relevant provisions of Code of Civil Procedure regarding pleadings. I will first refer to Order 8, Rule 2 runs as follows: