Gopinath Panda and Others vs Secretary to Government of Orissa, Revenue Department and Others

R.N. Misra, J.—Plaintiffs have carried this appeal against the reversing judgment and decree of the learned Additional District Judge of Cuttack in a suit for declaration that they have occupancy right over the ''A'' and ''B'' schedule lands and for confirmation of their possession.

The disputed property is recorded under C. S. Holding No. 660 of village Dharina (Schedule-A) and C. S. Holding No. 229 of village Alarpur (Schedule-B). The property shown in schedule-A is the side cutting land of river Suk Paika while the other land is to be side cutting land of the Taladanda Canal. These lands were being leased out by the authorities of the Works Department for annual cultivation. Exts. 1, 2 and 3 series show such annual leases to have been taken for a period of about sixty years by the Plaintiffs and their predecessors-in-interest. Plaintiffs maintained that they were occupancy tenants of the village and had acquired occupancy right in the property in dispute.

The Defendants pleaded that Plaintiffs were temporary leases and, therefore, the claim for acquisition of occupancy right was untenable in law. Reliance was placed on Section 55(c) of the Orissa Tenancy Act.

The trial Court rejected the plea u/s 55(c) of the Orissa Tenancy Act on the finding that the property was not being used for any of the purposes indicated therein. It also found that though the lands had been once set apart for use as side cutting lands, the said character has been lost on account of disuse for ages. It found that the Defendants had failed to establish the requirements of Section 55(c) of the Tenancy Act. It recorded a finding that the Plaintiffs were settled raiyats of the village and being in continuous possession of these lands for over sixty years have acquired occupancy right. On these findings, the suit was decreed.

Before the lower appellate Court, many of the factual aspects were not assailed, but reliance was placed both on Section 55(c) of the Tenancy Act as also on the provisions of Orissa Act 10 of 1951 (The Orissa Government Lands Bar to Acquisition of the right of Occupancy Act, 1950) in Support of the plea that no occupancy right could be acquired in the disputed property. On that score, the learned Appellate Judge vacated the decree of the trial Court and dismissed the suit. Plaintiffs are, therefore, in appeal before this Court.

I am inclined to agree with Mr. Pal that Section 55(C) of the Tenancy Act will have no application. That section, as far as relevant, provides:

Notwithstanding anything contained in Chapter V, a right of occupancy shall not be acquired 10, nor shall anything contained in Chapter VI apply to:

(a)....

(b)....

(c) land recorded or demarcated as belonging to the Government or to any Local Authority which is used for any public work, such as a road, canal or embankment, or is required for the repair or maintenance of the same, while such land continues to be so used or required.

Indisputably the finding is that the land is not being used for the purpose for several years now. Therefore, Section 55(c) of the Tenancy Act will have no application. Similarly the lower appellate Court was not justified in placing reliance on the provisions of Orissa Act 10 of 1951. Section 2 of that. Act, as amended by Orissa Act 8 of 1963 provides:

Bar to Acquisition of the right of occupancy in certain Government lands:

Notwithstanding anything contained in any tenancy laws for the time being in force in the State of Orissa, a right of occupancy shall not, unless it is specifically conferred, accrue in respect of the following classes of lands, namely:

(a) lands, reclaimed at the cost of the State Government ;

(b) lands acquired under the Land Acquisition Act, 1894 or under any other law relating to acquisition of land; and

(c) lands in the occupation of the Central or any State Government leased out temporarily by such Government. ..

According to Mr. Pal for the Appellants, the provisions of this statute are not retrospective and if rights had been acquired prior to the coming into operation of the statute, this Act does not intend to interfere with such rights. Learned Additional Standing Counsel does not dispute this submission. Therefore, the two grounds relying mainly on which the learned Appellate Judge had reversed the decree of the trial Court are not sustainable.

If the matter ended here, the appeal had to be allowed. The learned Additional Standing Counsel, however, contends that acquisition of occupancy right can only be by a statutory process and Plaintiffs could not acquire such status as they were not raiyats in respect of the disputed land at any time.

There is a categorical finding that Plaintiffs are settled raiyats in respect of other lands as provided in Section 23 of the Tenancy Act. Section 24(1) of the Act provides:

Every person who is a settled raiyat of a village within the meaning of Section 23 shall have a right of occupancy in all land for the time being held by him as a raiyat in that village.

"Raiyat" has been defined u/s 5(2) of the Tenancy Act to mean:

.... Primarily a person who has acquired a right to hold land ,for the purpose of cultivating it by himself, or by members of his family, or by hired servants, or with the aid of partners, and includes also the successors in-interest of person who have acquired such a right.

Explanation....

The question was examined at some length by a Bench of this Court in the case of State of Orissa represented by the Collector, Puri v. Narendra Kumar Routray and Anr. 1972 (1) C.W.R. 381, to which I was a party. Relying upon several reported precedents, it has been held by the Division Bench In that case that unless the incidences of a raiyati status are found; a raiyati right cannot be assumed. The Interest created under the several documents relied upon by the Plaintiffs is that of an annual leases with precarious rights. In fact, the terms of the lease vide Exts. 1. to 3 clearly indicate that even during the currency of the lease, the lessor could reenter. There is no heritability as the leases are for a year only. In the Circumstances, the Plaintiffs were not enjoying the disputed property as raiyats at any time and that being so, the question of acquisition of occupancy right by them does not arise.

Mr. Pal on the other hand contends that even though the leases were annual, there has been continuity of possession for almost sixty years and in view of the higher rights conferred on temporary tenants, the Plaintiffs can be taken to be the raiyats of the disputed property. I am afraid, Mr. Pal''s submission cannot be accepted. Since reliance is being placed on Section 24(1) of the Tenancy Act for conferment of the right claimed in the suit, and ''raiyati'' being a term defined by statute, Plaintiffs must satisfy the requirements of that term and if they fail to prove the same, the permanent right cannot be acquired by them.

In the circumstances, for reasons different from those which have been accepted by the lower appellate Court, I must uphold the decision of the learned Appellate Judge and dismiss this appeal. The net result, therefore, is that Plaintiffs'' action has to be dismissed. Parties are, however, directed to bear their own costs throughout.

Appeal dismissed.