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Judgment
Biswajit Mohanty, J.—In this writ application, the petitioners have prayed for a declaration that they should be treated as deemed tenants under Section 8 of the Orissa Estates Abolition Act, 1951 with regard to properties in question. They have further prayed for a direction to the opposite parties to correct the R.O.R. and mutate the petitioners'' names in respect of the properties in question.
According to the learned counsel for the petitioners, the land in question, in respect of which the above noted prayers have been made, comprise an area of Ac.6.36 decimals situated at mouza Patia in the District of Khurda appertaining to Sabik Khata No. 270, Sabik Plot No. 51 corresponding to Hal Khata No. 491 and Hal Plot No. 320. According to the petitioners, the said properties stood recorded in the name of Raja Madhusudan Deb, the intermediary of Patia Estate as per G-Register No. 1322, Khewat No. 1/1 in the R.O.R. for the year, 1931 as per Annexure-1. Later, the entire Patia Estate was put to auction and it went to Raja of Kanika. On 17.5.1940, the Raja of Kanika, Ex-Intermediary, inducted Late Birabara Ray (father of petitioner No. 1) and Naba Kishore Ray (petitioner No. 2) as tenants in respect of the said land and put them in possession thereof. Accordingly, the Raja of Kanika, the intermediary, while accepting the above two persons as tenants issued Hata Patta (Annexure-2) in the names of Late Birabara Ray and petitioner No. 2. The said tenants on being inducted continued in peaceful possession of the said holding as tenants under the intermediary. According to learned counsel for the petitioners, the said tenants paid land revenue to the intermediary and obtained receipts thereof under Annexures-3 and 3/1 respectively. On vesting the Ex-intermediary submitted Jamabandi to the State Government in favour of the above persons as tenants in respect of earlier noted properties. Thus, the above persons became deemed tenants under the State of Orissa. Thereafter, in 1955, vide Annexure-4 the Tahasildar, Bhubaneswar accepted rent. According to the petitioners, this reflected that the State accepted Late Birabara Ray (father of petitioner No. 1) and Naba Kishore Ray (petitioner No. 2) as tenants confirming their possession and right of deemed tenancy under the Orissa Estates Abolition Act, 1951 (for short "the Act"). Later on, Misc. Case for mutation of names in the Jamabandi Register was filed and the land was duly mutated in the names of Late Birabara Ray (father of petitioner No. 1) and Naba Kishore Ray (petitioner No. 2) in the year 1963 and the same was reflected in the Jamabandi Register under Annexure-5. Thus, they continued in the peaceful possession of the said properties as deemed tenants under the State of Orissa and after the death of Birabara Ray, his son the petitioner No. 1 along with petitioner No. 2 are continuing in peaceful possession of the said properties as deemed tenants and have perfected their right, title and interest in such properties. A fraud was perpetrated on the petitioners behind their back during 1973-settlement operations and from the R.O.R. the names of the petitioners were omitted. After coming to know of such omission, they filed T.S. No. 61/192 of 2006/1994 which was finally disposed of by the court of learned 1st Additional Civil Judge (Sr. Divn.), Bhubaneswar. The petitioners as plaintiffs had filed the suit for the following reliefs:--
"i) A decree may be passed declaring the right, title, interest and possession of the plaintiffs over the suit land measuring Ac.6.36 decimals out of the total area of Ac.161.00 in mouza Patia covered under Khata No. 491 and Plot No. 320 as per sketch map of the year 1973-74 indicated in red-colour appertaining to Sabik Khata No. 270 and sabik plot No. 51 inter alia holding there in that the recording of the suit land in the Hal Settlement ROR is erroneous.
ii) A decree may be passed declaring the Hal Patta (ROR) of the Assistant Settlement Officer as illegal in amalgamating plot No. 51 covered under Khata No. 270 measuring an area of Ac.6.36 decimals of mouza Patia, in plot No. 320 of khata No. 491 out of total area measuring Ac.164.00 and also with a direction to Defendant No. 3 for correction of ROR and prepared separate khata for the suit land in favour of the plaintiff.
iii) A decree may also be passed directing the Defendant No. 4 namely the Tahasildar, Bhubaneswar to mutate the suit land in favour of the plaintiff and correct the ROR in their names.
iv) A decree may also be passed permanently injuncting Defendants No. 1 to 5, their men, agents, or any other person claiming through them from interfering in the peaceful possession of the plaintiffs over the suit land.
v) And to pass any order/orders giving any other relief/reliefs as the Hon''ble court deems fit and proper".
On 12.2.1999, according to the learned counsel for the petitioners, an ex-parte decree was passed in the said suit in their favour.
Thereafter, the petitioners preferred Mutation Case No. 3717 of 1999 before the Tahasildar, Bhubaneswar. On account of inaction by the authorities, the petitioners filed O.J.C. No. 9258 of 2001 and the same was disposed of on 9.8.2001 directing the Tahasildar, Bhubaneswar to make an effort to conclude the above proceeding within a period of three months. As the said authorities failed to carry out the above order of this Court, the petitioners filed O.J.C. No. 4085 of 2002 and according to learned counsel for the petitioners, this Court vide its order dated 23.4.2003 directed the opposite parties to carry out the mutation as ordered earlier by this Court within a period of one month. In the meantime, on 18.3.2002 an application was filed for setting aside the aforesaid ex-parte decree dated 12.2.1999. On 20.11.2003, the ex-parte decree was set aside and thereafter IDCO on its own motion was impleaded as a defendant and disclosed that the General Administration Department has leased out 100 acres of land in its favour including the properties in question. During pendency of T.S. No. 192 of 1994, on 3.12.2008, the present writ application was filed by the petitioners praying for declaration that they should be treated as deemed tenants under Section 8 of the Orissa Estates Abolition Act, 1951 and the authorities should be directed to correct the R.O.R. in their names.
Upon notice, opposite party No. 3 filed its reply. In the said reply opposite party No. 3 has taken the stand that an area measuring Ac.707.93 in village Patia including the case land has been sanctioned vide order No. 564 dated 24.1.1986 by the Collector, Puri. Accordingly, a lease deed dated 8.2.1986 was executed in favour of the IDCO under Annexure-A series. Opposite party No. 3 also submitted that the entire land including the land in question has been mutated in favour of IDCO and the IDCO has paid ground rent and cess regularly to the Government. In pursuance of the lease deed, the IDCO developed the area measuring Ac.707.93 in village Patia including Plot No. 320 measuring an area of Ac.100.00 and constructed roads thereon for development of Industrial Estate, Chandaka for establishment of industries. Plot No. 320 which includes the land in question was allotted in favour of 43 industrial units/institutions. Therefore, they resisted the claim and the prayer of the petitioners. With regard to T.S. No. 192 of 1994 filed by the petitioners, opposite party No. 3 disclosed that the said suit was dismissed on contest by judgment dated 13.3.2009 under Annexure-B wherein the learned court below has refused to accept Hata Patta on very many grounds. Further, during course of hearing, Mr. Mohanty, learned counsel for opposite party No. 3 brought to our notice that against the judgment dated 13.3.2009 passed in T.S. No. 61/192 of 2006/1994 by the learned 1st Additional Civil Judge (Sr.Divn.), Bhubaneswar both the petitioners filed R.F.A. No. 15/22 of 2009. The same was dismissed on 31.3.2011.
No rejoinder has been filed by the petitioners.
Heard learned counsel for the petitioners; Mr. Mohanty, learned counsel for opposite party No. 3 and Mr. P.C. Panda, learned Additional Government Advocate.
Learned counsel for the petitioners submitted that the petitioners'' right, title and interest cannot be extinguished by omission of their names from the R.O.R. They should be accepted as deemed tenants under Section 8 of the Act. As State has accepted rent as early as 1955 immediately after vesting and the Jamabandi Register having been duly corrected by the statutory authority, IDCO perpetrated fraud in obtaining the lease especially when the deemed tenants were continuing in peaceful possession by raising boundary walls. He also made it clear that dismissal of Title Suit would no way affect the present case as in the Title Suit, the petitioners did not seek any claim under any of the provisions of the Act and submitted that such a stand has been clearly reflected in the judgment under Annexure-B.
Per contra, Mr. Mohanty, learned counsel for the opposite party No. 3 submitted that Annexure-2 which was the foundation of the right as claimed by the petitioners was exhibited as Ext. 2 before the learned Civil Judge (Sr.Divn.), Bhubaneswar. The learned Civil Judge (Sr.Divn.), Bhubaneswar having rejected that document as inadmissible evidence on the ground of its non-registration and on the ground that the same having been not executed by Zamindar himself and further on the ground that the said document was/is a spurious document, the bottom of the petitioners'' case has been knocked out. In view of this, no relief should be granted to the petitioners in this writ application as lands covered by both the Title Suit and present writ application are the same. Further Mr. Mohanty, learned counsel for opposite party No. 3 as well as Mr. Panda, learned Additional Government Advocate pointed out that the writ application was highly belated and on that count the same should be dismissed. According to them the cause of action for making a claim arose in 1972-73, when names of the deemed tenants were omitted in the settlement operation. Thus, according to them writ application has been filed belatedly after 35 to 36 years. They also contended that 43 industrial units/institutions, which have been allotted plots by IDCO for industrial purpose, have not been made parties in the writ application, even though they were necessary parties. In such background also the writ application was liable to be dismissed.
A perusal of record reveals that as per the averments made in the writ application, the names of the deemed tenants were omitted during settlement operation-1973. So nothing prevented them for challenging such omission immediately thereafter in appropriate forum taking the plea of Section 8 of the Act, as has been done in the present writ application filed in 2008. Thus between occurrence of omission and filing of the present writ application more than three decades have elapsed. Filing of Title Suit No. 192 of 1994 cannot come to the aid of the petitioners as admittedly in that suit the petitioners have not sought relief under any provision of the Act. Thus, this writ application is grossly barred by limitation. Even conceeding for a moment but not admitting the petitioners'' version that when they learnt about such omission in the settlement operation, they immediately filed Title Suit No. 192 of 1994, then also nothing prevented them from filing appropriate application under Section 8 of Act as is being claimed now in the present writ application in the year 1994. If we take 1994 as a cut off year then also there exists no explanation to 14 years delay in filing such writ application. The Hon''ble Supreme Court in Chennai Metropolitan Water Supply and Sewerage Board and Others Vs. T.T. Murali Babu, has made it clear that a litigant cannot be allowed to approach the appropriate court at his leisure and pleasure. His conduct should not be like that of Kumbhakarna or Rip Van Winkle. Relying on the ratio of the said decision, we are of the opinion that this writ application is grossly time barred and should not be entertained. Additionally also, the writ application suffers from non-joinder of necessary parties as in the meantime, a number of industrial units/institutions have been allotted Plots from Plot No. 320, which includes the land in question for their industrial purpose. These units have not been made parties in the present case. In case the prayer of the petitioners as made in the writ application is accepted then the units/institutions those have come up on the area as claimed by the petitioners as their own would face serious trouble.
For all these reasons, we are not inclined to entertain this writ application and accordingly, the writ application is dismissed and the interim order granted earlier stands vacated. No costs.
P. Mohanty, J.
I agree.