A.S.N. Murty vs The State of Orissa

Narasimham, C.J.—This is an appeal from the judgment of the Subordinate Judge of Berhampur dismissing the Plaintiff''s suit for recovery of possession of 8.48 acres of land in survey No. 7 of village Balkrishnapur of Chatrapur Taluq and for grant of a patta for the same and for other consequential reliefs.

Village Balkrishnapur is one of the ryotwari villages within Chatrapur Taluq of Ganjam district. It is admitted that survey No. 7 of that village having an area of 8.48 acres was originally Banjar (waste) land belonging to Government. In 1907 one Mr. R. Pantulu filed a suit against Government (O.S. No. 67 of 1907) in the court of the District Munsif, Berhampur alleging that he was granted an assignment of the aforesaid plot along with some other plots by the revenue authorities in January, 1898 on the basis of his application (Darkhasta) and that after such assignment he was in cultivation possession of the same paying cist (land revenue) to Government. In that suit, the father of the Plaintiff named A. Sitharamayya Pantulu (who was one of the Prominent lawyers of Chatrapur) was impleaded as Defendant No. 2 and it was alleged that at his instigation the assignment of the plot with R. Pantulu was cancelled. Hence, the Plaintiff in that suit prayed for grant of patta to him, recovery of possession and other consequential reliefs. Government as Defendant No. 1 contested that suit (see Ext. 12) mainly on the ground that as the plot was within half a mile of Chatrapur railway station, the assignment of the same in favour of R. Pantulu by the Deputy Tahsildar was invalid, having been made in direct contravention of the rules made by Government regarding assignment of lands in ryotwari villages. Plaintiff''s father also in his written statement as Defendant No. 2 (Ext. 11) supported this contention of Government and stated in paras 3 and 9 as follows:

3 The grant of plaint land to the Plaintiff peranently under the ordinary Darkhast rules was quite unauthorised as the land is within half a mile of the Chatrapur railway station.

Plaintiff acquired no valid title to the grant land and the action of the 1st Defendant in cancelling the grant and granting the same to adjoining patta-holders of the village is therefore legal and valid.

It will be noticed that, though this Defendant asserted that after cancellation of the assignment, the disputed plot was settled with the adjoining patta-holders, nevertheless in para 3 of his written statement he said that under the Darkhast rules, an assignments permanently of the plot with the Plaintiff was unauthorised as it was within half a mile of Chatrapur railway station. Thus, if paras 3 and 9 of the Plaintiff''s father''s written statement in that litigation (Ext. 11) be read together, the reasonable inference Seems to be that as the plot was within half a mile of Chatrapur railway station, there could be no permanent assignment of the land, though it was granted on a temporary basis to the adjoining patta-holders. The judgment of the Munsif of Berhampur was delivered on 5th March, 1908 (Ext. 13). He disposed of the litigation on the simple point that as the plot was found to be within half a mile of Chatrapur railway station, the assignment of the same with the Plaintiff by the Deputy Tahsildar was unauthorised and invalid. He did not give any finding of the assertion of the Plaintiff''s father in that suit (Defendant No. 2) that after cancellation of R. Pantulu''s assignment the disputed plot was granted to the adjacent patta-holders.

In this litigation, however, the Plaintiff'' has slightly improved upon his father''s claim in that litigation (Ext. 11) by saying that this plot was permanently assigned to his father in 1904 and that, consequently, he became a Pattadar that is, a ryot under Government. Thus, the Plaintiff has staked his entire claim on the assertion that in 1904 the disputed plot was actually assigned to the Plaintiff''s father who thereby became a pattadar ryot. If the story of assignment be believed, it is obvious that the Plaintiff must succeed in this litigation. It is well settled that in ryotwari areas, the ryot has a permanent heritable transferable right and that right cannot be extinguished by Government except in accordance with law.

In March, 1947, the then, Additional Collector of Ganjam directed issue of a patta in respect of the disputed plot in the name of the Plaintiff (Ext. 8), but the Member, Board of Revenue by his order dated 16th August, 1951 (Ext. C) set aside this order of the Additional District Collector and directed that the matter should be further enquired into. Thereupon the succeeding Additional District Collector, Mr. N.M. Dutt by his Order dated 18th June, 1952 (Ext. A) fully discussed the history of the case and submitted a report to the Board of Revenue for necessary orders. He was of opinion that it was not satisfactorily proved that there was any assignment of the disputed plot with the Plaintiff''s father. The matter went up to Government who by Revenue Department letter No. 1668/R.I. 160/56 dated 22nd September, 1956 directed that the Plaintiff being only a Sivai Jamadar should deposit the market value of the property, namely, Rs. 1,530/- per acre if he wanted assignment of the plot. As the said sum was not deposited, the revenue officials were directed to take steps for his eviction (see Ext. E). Accordingly steps were taken for his eviction under the Orissa Prevention of Land Encroachment Act, 1953. Notices under Sections 6 and 7 of that Act were issued and the eviction order was passed on 24th May, 1957 (see Ext. J)). The Plaintiff filed an appeal to the Revenue Divisional Commissioner, who however dismissed the appeal on 13th December, 1958 (see Ext. B). It is admitted by the Plaintiff that he was actually dispossessed on 30th June, 1957.

The defence of the Government of Orissa was that the disputed land was never assigned to the Plaintiff''s father at any time, but it was admitted that he was in unauthorised occupation of the suit land and paying Sivai Jama (Toram assessment). It is alleged that no patta was ever issued to him and that in respect of unauthorised occupation of Government land, Government were justified in evicting him under the Encroachment Act when he refused to pay the value of the land at the market rate as fixed by Government.

Thus, the essential point in controversy between the parties is whether the Plaintiff''s father became a ryot of the disputed land by virtue of a valid assignment made to him in 1904 or else whether his admitted possession of the land for a long time was unauthorised. The relief asked by the Plaintiff also makes it absolutely clear that this is a simple suit for eviction after a declaration of the Plaintiff''s title as ryot (Pattadar). The Plaintiff must therefore prove his title and cannot merely ask for recovery of possession on the ground that he was dispossessed. The Defendant is Government who are admittedly the true owner of the land prior to its assignment either with Rayanna Pantulu in 1898 or with the Plaintiff''s father in 1904 as alleged. Hence, the main issue in this litigation was issue No. 7 which was as follows:

Whether the Plaintiff''s father and after him the Plaintiff were in possession of the suit land as ryot paying land revenue to the Government or whether thy were in unauthorised occupation of the suit land paying toram assessment to the Government?

Before discussing the evidence adduced, by the Plaintiff, I may briefly refer to the Board''s Standing Order in force in Ganjam district dealing with assignment and assessment of lands at the disposal of Government in ryotwari areas. B.S.O. No. 15 deals with the subject. Anyone may apply for assignment of lands at the disposal of Government and there are detailed instructions for the disposal of such applications. But as regards lands in the vicinity of the railway station, Clause (viii) of para 35 of the said B.S.O. is as follows:

(viii) Land situated within half a mile of a railway station should not be assigned on darkest except with the previous sanction of the Collector, which should be obtained in each case. The Collector should not accord sanction unless the Railway authorities agree to the grant. This does not, however, prevent the temporary assignment of such land for purposes of cultivation, which may be made by the Divisional officer without reference to the railway authorities...Temporary assignment will be subject to the express condition that no buildings of any kind shall be erectly by the grantee on the and that notice without payment of compensation save for standing crops.

B.S.O. No. 26 deals with unauthorised occupation of Government land and para. 6 of that B.S.O. contains detailed instructions in dealing with cases in which only temporary occupation was permitted.

The Plaintiff has frankly admitted in his deposition that he has absolutely no documentary evidence to show that the disputed plot was assigned to his father as Pattadar.

"There is no document or record to show the settlement of the suit lands by the Government with my father. I have not filed any cist receipts in respect of the suit lands."

Thus, his story of valid assignment in 1904 must be held to have been not proved by any evidence whatsoever. On the other hand, the pleadings in the judgment of the previous litigation (Exts. 10, 11 and 12 of 1907-1908 in O.S. No. 67/1907) show that such an assignment in favour of the Plaintiff''s father was highly improbable. Rayaina Pantulu''s claim to the plot was resisted both by Government and by the Plaintiff''s father on the ground that the plot was within half a mile from the Chatrapur railway station. I have already shown that under B.S.O. No. 15, para 35(viii) such lands could not be assigned permanently except with the consent of the railway authorities, though there may be temporary assignments. When the Collector and the Plaintiff''s father successfully challenged the assignment of the plot with Rayanna Pantulu in 1907-1908 on this very ground, it is difficult to believe that the Plaintiff''s father would have been permanently assigned this land by the Collector in 1904. The Plaintiff''s father did not make any such specific claim in his written statement (Ext. 11 dated 17-6-1907). In the subsequent Revision Settlement of this village of 1911 (see Ext. 15), this plot was not recorded in the name of A. Sitharamayya Pantulu (Plaintiff''s father), though other plots were so recorded. The lower court and the Revenue Divisional Commissioner committed a mistake in saying that the settlement entry has presumptive evidence of correctness under the provisions of the Madras Estate Land Act which has no application to ryotwari areas of Ganjam district. Though there may not be a statutory presumption of correctness in respect of settlement entries made in ryotwari villages, nevertheless, an entry made after an elaborate enquiry by higher revenue officials has considerable evidentiary value especially when it is supported by the probabilities mentioned above and the pleading of the Plaintiff''s own father in Ext. 11. I must therefore hold that the disputed plot was never assigned to the Plaintiff''s father as Pattadar.

The subsequent entry in the revenue records does not in any way improve the Plaintiff''s claim. Thus, in the village account of Balkrishnapur (Ex. 4(a) dated 27- 12-1921) the Plaintiff''s father was shown as the person in possession of the disputed plot for the purpose of irrigation. It is admitted that water rate was collected from him, but this would not necessarily show bat he must have become the Pattadar. Appendix 1, Chapter I of the B.S.O. shows that water-cess is levied from the actual cultivator irrespective of his status. He may be a ryot or he may be a Sivai Jamadar or he may be a person holding a temporary patta. Hence, merely from the entry in Ext. 4(a), it cannot be held that the Plaintiff''s father was Pattadar of the plot. The same observations apply to Ext. 4(b) which is a village account paper dated 27-11-1925. Similarly, in Ext. 4 dated 30-11-1925 showing details of payment of water-tax in the village, it is expressly stated in Col. 3 that the Plaintiff''s father was merely holding a temporary patta. This only conforms to the instructions contained in B.S.O. No. 15, para 35(viii) which permits issue of temporary assignments only where the land is situated within half a mile from the railway station. In Ext. 14 which is accounts No. 2 of the village dated 26-11-1940, the disputed plot was recorded in the name of the Plaintiff''s father as padar banjar temporary patta. The Additional District Collector in his order (Ext. A) has observed that the subordinate revenue officials in collusion with the Plaintiff''s father recorded the words temporary patta in Exts. 14 and 4. There is, however no evidence of such collusion and in any case, there is nothing improbable if the Plaintiff''s father had obtained temporary assessment in view of what I have stated above. There is nothing inconsistent in a temporary patta-holder remaining in unauthorised occupation after the expiry of the term. This seems to be contemplated in B.S.O. No. 26 para 6 mentioned above.

There is another important document which may also be noticed. It is Ext. 3 dated 17-3-1927 showing that the Revenue Divisional Officer remitted the penal water rate levied on that Plaintiff''s father in 1927. This would show that the Revenue officials considered the occupation of the land by the Plaintiff''s father the to be unauthorised and first levied penal rate, though it was subsequently remitted on the representation of the Plaintiff''s father. This would support the Government''s contention that the land was in unauthorised occupation.

Thus, it is found that the documents relied on by the Plaintiff himself show dearly that, though his father was in possession for a fairly long time at any rate from 1921, such possession was not on the basis of a permanent patta. Temporary pattas were granted to him sometime in 1925 and again in 1946 but such a patta did not confer any right and Government could dispossess him with one month''s notice. The Plaintiff, therefore has absolutely no title to the land so as to justify this Court in decreeing his claim for eviction.

Releasing this difficulty, Mr. Row for the Appellant urged that without discussing any question of title, the Plaintiff should be given a decree for recovery of possession on the basis of his admitted long possession of the property. It is true at on the basis of mere possessory title recovery of possession is sometimes granted to a party wrongfully dispossessed u/s 9 of the Specific Relief Act. But here, the suit was not brought on that basis. Moreover, it is well settled that no suit on the basis of possessory title can lie against Government who are admittedly the true owner of the property. This question has been set at rest by several Madras decisions. I need only refer to the Privy Council decision in Secretay of State for India v. Chellikani Rama Rao ILR Mad 617 where their Lordships overruled the previous Madras view, and held that mere long continued possession for any length of time unless it clearly amounts to adverse possession for 60 years will not suffice in a suit against Government In AIR 1932 46 (Privy Council) the scope of the Madras Land Encroachment Act, 1905 was explained as follows:

General and sweeping enactments have certainly the effect that in future where there is a contest as to the right of water, the Opponent of the Government will be put to prove his title. He will not be able, as he otherwise would have been when attacked by the Government to put them to prove their title.

This follows from the language of Section 2 of the Madras Land Encroachment Act, 1905 which says that all lands wherever situated shall be the property of Government save in so far as the same are the property of any of the persons specified in the section. This decision of the Privy Council and the language of that Act were noticed in Secretary of State Vs. Alex Pinto and Others, where the learned Judge quoted the following observation of Varadachariar, J, in a Full Bench decision:

It may also be conceded that what is commonly spoken of as ''possessory title'' founded on the mere fact of possession, cannot prevail against Government because a possessory title can avail only against persons who are not true owners, and under the Madras Act 3 of 1905 Government must be presumed to be the owner until a title is established in another.

Under the Orissa Prevention of Land Encroachment Act, 1953 also, the language of Section 2(a) is almost idental with the language of Section 2(1) of the Madras Land Encroachment Act, 1905 and, consequently, the aforesaid decisions would apply with full force. Hence, the Plaintiff cannot claim recovery of possession merely on the basis of long continued possession as against the Government who are the true owner.

A petition was filed for add using additional evidence u/s Order 41, Rule 27, Code of Civil Procedure. This petition must be rejected as no satisfactory reason was given as to why these documents were not proved in the lower court. Another petition was also filed for framing new issues on the main question as to whether eviction wag properly done under the provisions of the Orissa Prvention of Land Encroachmen Act. I am not satisfied that this is a fit case for framing a fresh issue on this point especially when as already pointed out, even if the Plaintiff succeeds in showing that the procedural provisions of the Orissa Prevention of Land Encroachment Act were not properly complied with, he cannot succeed in getting recovery of possession from Government unless he can prove his title. He cannot rely on mere possession for some years.

I may now refer to two decisions cited by Mr. Ranga Row for the Appellant. In Pothukutchi Appa Rao and Others Vs. Secretary of State for India in Council, it was held that where a tank bed was in the possession of certain persons from whom Government collected cess under the provisions of the Madras Local Board''s Act but refrained from collecting assessment, nevertheless, the collection of cess would amount to an admission of the title of the person in possession of the same. The collection of the cess under the Madras Local Board''s Act may not be the same as the collection of water rate from a person in unauthorized occupation of Government land. I have already shown that under Appendix I, Chapter I of B.S.O. even a Sivai Jamadar who is actually cultivating the land and taking water from a Government source is bound to pay water rate. The mere payment of water rate does not show that he is a ryot. Moreover, in that judgment, the learned Judges believed the evidence of the Plaintiffs regarding their title to the tank bed on the basis of a pre-British grant which was confirmed in the subsequent Inam settlement. Thus, the right of the Plaintiffs was based not on mere possessory title for less than 60 years, but based on valid grants obtained more than a century ago. This decision is thus of no help to the Plaintiff. Mr. Row then relied on Ravipudi Abbayya Vs. State of Andhra Pradesh and Others, . But that decision, I think is distinguishable fundamentally on facts. There, though the Plaintiff did not prove possession for full 60 years, nevertheless he proved possession for a long period and also produced cist receipts granted by Government for nearly 30 years. Hence the learned Judge held that the collection of cist which is land revenue normally payable by a Pattadar coupled with long possession without any attempt on the part of Government to levy any penal assessment leads to an inference that Government recognised the Plaintiff as Pattadar. Here, however, the Plaintiff has not proved even one cist receipt. On the other hand, Ext. 3 shows that penalty first imposed, though it was subsequently remitted. In the aforesaid Andhra Pradesh decision also, the learned Judge cited with approval he observations of Ramesam, J. in AIR 1925 SC 1021 to the effect that mere unauthorised occupation, by a Sivai Jamadar for any length of time will not amount to condonation of the act of trespass or the recognition of any right or any undertaking on the part of Government permit the occupation for his future.

To sum up, therefore, the Plaintiff has failed to prove valid assignment of the disputed land in favour of his father as Pattadar. He has also not proved a single cist receipt to show that he paid normal revenue assessment on the plot The documents produced by him, namely, water rate receipts (Ext. 4 series) and No. 2 account (Ext. 14) and order of the Revenue Divisional Officer (Ext. 3) all show that the Plaintiff''s father''s possession was unauthorised, though he had temporary pattas for some periods. On the Plaintiff''s own case, his father''s possession first, commenced in 1904 and the Plaintiff was dispossessed by Government in 1957 prior to the expiry of sixty years and hence no plea of acquisition of title by advrse possession was set up at any time. The land is admittedly within half a mile of the railway station and permanent assignment of such land is highly improbable. Plaintiff''s suit must therefore fail The appeal is dismissed with costs.