DWARKA NATH BIDYADHAR Vs. DAMBARUDHAR MAHAPATRA

JUDGEMENT

(1.) These three appeals arise put of three suits which were, by consent of parties, heard together and disposed of by the same judgment. The undisputed facts may be thus shortly stated.

(2.) The appellant is the proprietor of Killah Ambo in the district of Balasore in Orissa. In this killah the right of primogeniture prevails, the estate being impartible and descending on the death of the proprietor to his nearest male heir. The respondents are the agnates of the proprietor, who is the appellant before us, and whose ancestors assigned the lands in suit, subject to a "light tribute" equivalent to the Government revenue, to the ancestors of the respondents in lieu of maintenance. The respondents in Section A. Nos. 1181 and 1182 base their title on two ancient sanads of the year 1812, while the respondent in the remaining appeal bases his title on a rafanama filed in 1886 in a Civil Appeal between his father and the present appellant's grandfather.

(3.) Orissa, it is well known, has not been permanently settled. At the last settlement in 1897 the Settlement Officer treated the "light tribute" as rent, and increased it considerably. Thereafter the appellant sued the respondents for arrears of rent as tenants on the basis of the new settlement, and he obtained exparte decrees against them in the years 1903 and 1904. The respondents then instituted these suits in the Court of the Subordinate Judge for declarations that the rent decrees had been fraudulently obtained and ought to be set aside, and that they were liable to pay, presumably as proprietors, only a proportion of the Government revenue. They also prayed for an injunction restraining the appellant from executing his fraudulent decrees; but it appears that, after the institution of the suits, the decrees were in fact executed, and this prayer, therefore, became in fructuous and was ignored. The Subordinate Judge has found that the "light tribute" payable by the respondents is not rent, that the relationship of landlord and tenant has never existed between the appellant and the respondents, and that, therefore, the Settlement Officer was incompetent to assess any rent on the lands in suit. He has accordingly given the respondents a declaration to the effect that they are entitled to hold the lands granted to their ancestors by a former proprietor of the killah in lieu of maintenance on payment to the appellant of a proportionate share of the Government revenue These decrees have been affirmed by the learned District Judge, and the proprietor has now appealed to this Court.