The appellant- State in its written statement before the
learned trial court as well as in the appeal before the High Court
had raised a specific plea of forgery and fabrication of the
documents relied upon by the plaintiffs.
The affidavits of the
Tehsildar, Cuttack and Bhubaneswar Circle filed before the High
Court specifically deal with aforesaid issue. The appellant State had
filed an application under Order 41 Rule 27 of the Code of Civil
Procedure for leave to bring the same on record.
The said
application was rejected and all objections brushed aside by
holding that the burden to prove the forgery alleged has not been
satisfactorily discharged by the State.
It is our considered view
that the matter required a deeper probe and investigation and did
not call for a summary rejection. That apart in State of Orissa &
Ors. Vs. Harapriya Bisoi (supra) the issue with regard to validity
of a Hatapatta similar to
Ext. 1 was found to be the subject
matter of an ongoing criminal investigation. All these required the
elimination of even slightest of doubt with regard to the
authenticity of the relied upon documents. The effect of fraud on
judicial orders has also been exhaustively considered in State of
Orissa & Ors. Vs. Harapriya Bisoi (supra) and it will not be
necessary to reiterate the views expressed therein except to say
that on the slightest of doubt or even prima facie proof of fraud,
the matter must be thoroughly investigated by the court to arrive
at the truth. Judicial order must be based on strong foundational
facts free from any doubt as regards the correctness and
authenticity thereof. In the light of the facts noticed by us the High
Court, in our considered view, ought to have investigated the
matter a little further instead of summarily holding the objections
of the State to be mere claims or assertions of fraud without legal
proof.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1812-1815 OF 2010
STATE OF ORISSA & ANR.
VERSUS
FAKIR CHARAN SETHI
(DEAD THROUGH LRS) & ORS.
Date;OCTOBER 09, 2014.
Citation; AIR 2015 SC246
RANJAN GOGOI, J.1.
Civil Appeal No. 1812 of 2010 arising from the common
judgment and order dated 30.7.2009 passed by the High Court of
Orissa in F.A.No.10 of 2001 affirming the decree dated 29.7.2000
passed by the learned Trial Court may be conveniently treated as
the main appeal for consideration.
In that event the fate of the
connected appeals would stand determined by the outcome of the
aforesaid Civil Appeal i.e. C.A. No.1812 of 2010.
2.
The respondents 1 and 2, as plaintiffs, instituted Title Suit
No.620 of 1998 in the Court of learned Civil Judge, (Senior Division)
Bhubaneswar seeking a declaration of occupancy rights in their
favour as well as for affirmation of their possession as tenants in
respect of the suit land. A further direction to the defendants 1
and 2 (appellants) to accept rent from the plaintiffs and a
permanent restraint against interference in the possession of the
plaintiffs over the suit land was also sought in the suit filed.
3.
The short case of the plaintiffs(respondents) before the
learned Trial Court was to the effect that their father Nidhi Sethi
who served under the Ex-ruler of Kanika Raja as a washer man was
granted lease of the suit land measuring 4.16 acres covered under
Sabik Plot No.292 appertaining to holding No.303 situated in Mouza
Chandrasekharpur. According to the plaintiffs, the aforesaid land
was leased to their father on 14.2.1942; possession of the land was
delivered and rent paid by their father as tenant was accepted by
the Ex-ruler. The plaintiffs further claimed that an unregistered
Hatapatta (lease agreement) (Ext.1) was also granted by the Ex-
proprietor in favour of the plaintiffs’ father. It was the case of the
plaintiffs that since the date of the lease their father and thereafter
the plaintiffs had been in possession of the suit land using the
same for residential as well as agricultural purposes.
4.
It was the further case of the plaintiffs, as stated in the plaint,
that the intermediary interest in the estate including the suit land
stood abolished and vested in the State Government sometime in
the year 1954 under the provisions of the Orissa Estate Abolition
Act, 1951 (hereinafter referred to as ‘the Abolition Act’). According
to the plaintiffs, even thereafter, their father had paid rent to the
State Government through the Tehsildar and had continued to be
in possession of the suit land. It was also the case of the plaintiff
that their father had died in the year 1967, whereafter, the
plaintiffs
continued
to
remain
in
possession.
Furthermore,
according to the plaintiffs, in the Record of Rights published in the
year 1974 upon completion of settlement operation the land was
shown as Government land; the said entry was on account of fact
that the plaintiffs were living outside Orissa.
In the Record of
Rights pursuant to 1988 settlement the State Government was
shown as the owner of the suit land with a note of forcible
possession of the same by the plaintiffs against the remarks
column. While the matter was situated, the defendants 3 and 4 in
the suit i.e. Director of NCC and Defence Estate Officer attempted
to trespass into the suit land. The suit in question was therefore
filed seeking the reliefs earlier noticed.
5.
The defendants 1 and 2 filed a joint written statement
pleading, inter alia, that the claim of the lease in favour of the
father of the appellant with effect from 14.2.1942 and the
execution of the Hatapatta (Ext.1) was untouched. The Hatapatta
and the supporting rent receipts issued by the Ex-ruler (Ext.2
series), according to the defendants, were forged and fabricated
documents. The claim of possession of the father of the plaintiffs
and thereafter of the plaintiffs over the suit land was vehemently
contested by the State in the written statement filed. The State
also contended that the entries in the Record of Rights after
conclusion of the settlement operation in the year 1974 which did
not disclose any interest of the plaintiffs over the suit land were not
challenged by the plaintiffs in any forum. According to the State,
the entry of forcible possession of the plaintiffs in the remarks
column of the Record of Rights pursuant to the 1988 settlement
operation is a forged and fabricated entry. The certified copy of
the tenancy roll (Ex.4) prepared by the intermediary and submitted
by the Government, after the vesting, showing the name of the
plaintiffs therein as well as the tenancy ledger (Ex.5) were also
contended to be forged.
6.
The learned trial court framed as many as five issues for trial,
out of which issues D and E were considered to be of primary
importance. The aforesaid two issues framed were as follows :
“D –Did the plaintiff’s father acquire occupancy right over the
suit land being a tenant under the ex-proprietor ?
E –Are the plaintiffs and their father in continuous possession
of the suit land since 1942?”
7.
The
learned
Trial
Court
accepted
the
credibility
and
authenticity of the Hatapatta (Ext.1); rent receipts issued by the
Ex-ruler (Ext.2 series); rent receipts granted by the Tehsildar after
the vesting of the land in the State Government (Ext.3); certified
copy of the Rent Roll (Ex.4) prepared by the Ex-proprietor and
submitted to the Government at the time of vesting; the certified
copy of the tenancy ledger (Ext. 5) prepared by the Tehsildar,
Cuttack on 31.3.1981.
That apart, a host of other documents
exhibited by the plaintiffs, particularly, the reports of the different
authorities (Exts.9, 11 and 12) to show the possession of the
plaintiffs as well as the certificates of such possession issued by
the Tehsildar, Bhubaneswar (Ext.14); receipts granted by the
Bhubaneswar
Municipal
Corporation
(Ext.15
series);
Driving
Licence (Ext. 17), Bank Pass Book (Ext.18); Ration Card (Ext.19);
Telephone Bills (Ext.20 series) were taken into account by the
learned Trial Court to record its finding of possession in favour of
the plaintiffs.
8.
The continuous possession of the plaintiffs since the year
1942 as found by the learned trial court was understood to have
satisfied the requirement under Section 8 of the Abolition Act
entitling the plaintiffs to be recognized as tenants under the State
Government, and, therefore, to the reliefs sought in the suit. The
claim of the State with regard to the doubtful authenticity of the
documents relied upon by the plaintiffs were understood by the
learned trial court to be unsubstantiated and unverified claims and,
therefore, unworthy of any credence. It is on the aforesaid broad
basis that the plaintiff suit was decreed by the learned trial court.
6
Page 6
9.
Against the decree dated 29.7.2000 passed by the learned
trial court, the State of Orissa filed an appeal i.e. F.A.No.10 of 2001
before the High Court. During the pendency of the appeal before
the High Court, the land was allotted to one Bombay Cardio
Vascular Surgical Pvt. Ltd. (respondent No.2 in C.A.No.1814 of
2010). The aforesaid allotment was made subject to the result of
F.A.No.10 of 2001. The said allotment and the alleged assertion of
right on the basis thereof by the allottee came to be challenged by
the first respondent/plaintiff in W.P.Nos.7962 and 8874 of 2008. A
Public Interest Litigation registered as W.P.No.7434 of 2008 was
also filed before the High Court challenging the ‘grant’ of the land
in favour of the plaintiffs and the entries with regard to their
possession made in the Record of Rights of the year 1988. The
aforesaid writ petitions along with F.A.No.10 of 2001 were heard
analogously and were disposed of by the common order of the
High Court dated 30.7.2009.
10. The High Court on hearing the appeal against the decree
(F.A.No.10 of 2001) upheld the findings of the learned trial court by
reiterating the same on reconsideration of the evidence and
materials on record. What however would require specific notice is
7
Page 7
that before the High Court, the appellant-State had filed two
affidavits of the Tehsildar Bhubaneswar and Cuttack Tehsil
respectively to show that Exts.4 and 5, (issued in 1981-1982) relied
upon by the learned trial court, could not have been issued by the
Tehsildar, Cuttack inasmuch as Village Chandrasekharpur (where
the suit land is situated) was under the jurisdiction of Cuttack
District till bifurcation in the year 1970 and thereafter the said
village became a part of Bhubaneswar Tehsil. As per Government’s
Notification all records pertaining to village Chandrasekharpur are
not available in the Cuttack Tehsil. The authority of the Tehsildar,
Cuttack to issue Ext. 4 and 5 in the years 1981-82 when village
Chandrasekharpur became a part of Bhubaneswar Tehsil was
specifically questioned in the aforesaid two affidavits. In so far as
Ext. 3 series (rent receipts) issued by the Tehsildar is concerned,
lack of authenticity of the same was reiterated by the Tehsildar,
Cuttack in his affidavit filed in the High Court specifically
contending that the same was “not genuine” and could not have
been granted in accordance with law i.e. under the law.
11. Before us, Shri Tushar Mehta, learned ASG has contended that
the Hatapatta being an unregistered instrument cannot be
8
Page 8
construed as a legally valid instrument of lease. Even if the said
document i.e. Ext.1 is to be accepted, the rent receipts (Ext.2
series) are entry passes for collection of different forest produce
inasmuch as in the Record of Rights published since the year 1931,
indisputably, the land is described as “Jhati Jungle” or forest land.
What is of significance is the further argument of Shri Mehta that
the said land being “Jhati Jungle” or forest land and the status of
the land being Anabadi (unfit for cultivation) possession of the
plaintiffs’ father of the suit land on the date of vesting i.e. 1954
even if is accepted (though the same has been vehemently
denied), the said possession will not enure to the benefit of the
plaintiffs inasmuch as the possession contemplated by Section 8 of
the Abolition Act must be for purposes of cultivation and the
holding of the land must be in the status of a raiyat. In this regard,
reliance has been placed on the decision of this Court in State of
Orissa & Ors. Vs. Harapriya Bisoi1.
According to Shri Mehta,
there is no legal much less acceptable evidence and no finding
whatsoever of such possession in favour of the plaintiffs has been
recalled by the learned trial court. Pointing out the relevant
paragraphs (paras 34 to 36) of the report in State of Orissa &
1
2009 (12) SCC 378
9
Page 9
Ors. Vs. Harapriya Bisoi (supra) Shri Mehta has contended that
the pendency of a criminal investigation in respect of the Hatapatta
issued in the said case, has been noticed by this Court.
The
Hatapatta (Ext. 1) issued to the father of the plaintiffs, as claimed,
are in circumstances similar to the present case. By pointing out
the averments in the written statement filed by the State before
the learned trial court and the affidavits of the Tehsildar, Cuttack
and Bhubaneswar Tehsil before the High Court,
Shri Mehta has
submitted that there is grave doubt with regard to the authenticity
of the documents relied on by the learned trial court as well as by
the High Court in support of the impugned findings. Shri Mehta has
also pointed out that the other documents (Exts.9 to 20) would at
best go to show the possession of the plaintiffs after the date of
vesting which is not at all relevant for deciding the entitlement of
the plaintiffs as claimed in the suit.
12. In reply, Shri Jaideep Gupta, learned senior counsel appearing
on behalf of respondent Nos. 1 and 2 has taken us through the
pleadings in the plaint and the relevant part of the evidence of
PWs.1 and 2 to show that what was pleaded and proved by the
evidence brought by the plaintiffs is the continuous possession of
10
Page 10
the plaintiffs or their predecessors and cultivation of a part of suit
land by them since the year 1942. On the said basis it is urged that
the statutory protection available to the plaintiffs under Section
8(1) of the Abolition Act was rightly accorded by the learned trial
court and affirmed by the High Court in appeal. It is contended that
the objections taken with regard to the authenticity of some of the
documents brought on record by the plaintiffs are belated as the
said documents were allowed to be exhibited in the trial without
any objection from the State. The criminal investigation does not
pertain to the Hatapatta issued to the plaintiffs father (Ext.1). It is,
therefore, contended that there is no basis for interference.
13. It will not be necessary to go into the various contentious
issues arising from the weighty arguments advanced by the
learned counsels for the parties as, according to us, the
controversies arising are capable of being resolved within a narrow
compass.
In State of Orissa & Ors. Vs. Harapriya Bisoi
(supra), it has been held by this Court that possession of a tenant
under an intermediary on the date of vesting of the land under the
Abolition Act so as to give the tenant the benefit of continuity of
tenure under Section 8(1) of the said Act would have to be in the
11
Page 11
status of a raiyat actually cultivating the land. The definition of
Raiyat contained in Section 2(n) and the provisions of Section 5(2)
of the Orissa Tenancy Act, 1913 were at length considered by this
Court to come to the aforesaid conclusion which may be noticed by
a specific reference to the relevant paragraphs of the report in
State of Orissa & Ors. Vs. Harapriya Bisoi (supra):-
“26. By virtue of Section 8, any person who immediately
before the vesting of an estate in the State Government was
in possession of any holding as a tenant under an
intermediary, would on and from the date of the vesting, be
deemed to be a tenant of the State Government. The words
“holding as a tenant” mean the “raiyat” and not any other
class of tenant: reference in this regard may be drawn to the
definition of “holding” in the Orissa Tenancy Act, 1913:
“3. (8) ‘holding’ means a parcel or parcels of land held by
a raiyat and forming the subject of a separate tenancy;”
Section 8 thus confers protection only on the “raiyat” i.e. the
actual tiller of the soil.
27. Significantly, a “lease” and “lessee” on the one hand
are defined separately from the “raiyat” under the Act. Thus,
the mere execution of a lease by the intermediary in favour
of a person would not confer the status of a “raiyat” on the
lessee nor would protect the possession of such lessee
under Section 8. In fact, a “lease” would amount to a
transfer of an interest of the intermediary in the land to the
lessee. In such a situation, far from being a tenant protected
under Section 8, the lessee would in fact step into the shoes
12
Page 12
of the intermediary with his interest being liable for
confiscation and his entitlement limited to compensation
from the State.
28. On the other hand, for protection under Section 8,
one has to be a raiyat cultivating the land directly and
having the rights of occupancy under the tenancy laws of
the State. Thus, a “lessee” who is not actually cultivating the
land i.e. who is not a “raiyat”, would not be within the
protection of Section 8 of the Act. Section 2(h) of the Act in
its residuary part states that “intermediary” would cover all
owners or holders of interest in land between the raiyat and
the State.”
In Para 30 of the aforesaid report, on similar facts, the claim
of cultivation of the land recorded as Anabadi and jhati jungle i.e.
forest land in the said case was negatived by this Court on the
plain logic that such a claim of cultivation can have no basis when
the land is described in the Revenue records as ‘Jhati Jungle’ and
also as Anabadi i.e. uncultivable.
14. In the present case even though the evidence of PW1 and 2
may indicate that the suit land was cultivated by the plaintiffs, in
the light of views expressed by this Court in para 30 of the report
in the State of Orissa & Ors. Vs. Harapriya Biso (supra), the
aforesaid evidence, without further details, has to be construed as
13
Page 13
wholly unacceptable proof of cultivation of the suit land by the
plaintiffs’ predecessors on the date of vesting of the land under the
provisions of the Abolition Act.
It must be made clear that what is
relevant under Section 8(1) of the Abolition Act to confer the
benefit of continuity of tenure to the tenant is possession as well as
cultivation of the land as on the date of vesting. Therefore what
was required to be established by the plaintiffs in the present case
is cultivation by the predecessors of the plaintiffs in the year 1954
when the land had vested in the State notwithstanding the status
of the land as shown in the Record of Rights. No specific evidence
in this regard has been laid by the plaintiff (PW1) except a bald and
ominous claim that the land was cultivated by his father.
If the
plaintiffs had failed to prove possession and cultivation as on the
date of vesting, as we are inclined to hold, the same, irrespective
of any other question, will disentitle the plaintiffs to the reliefs
sought in the suit.
15. The appellant- State in its written statement before the
learned trial court as well as in the appeal before the High Court
had raised a specific plea of forgery and fabrication of the
documents relied upon by the plaintiffs.
The affidavits of the
Tehsildar, Cuttack and Bhubaneswar Circle filed before the High
Court specifically deal with aforesaid issue. The appellant State had
filed an application under Order 41 Rule 27 of the Code of Civil
Procedure for leave to bring the same on record.
The said
application was rejected and all objections brushed aside by
holding that the burden to prove the forgery alleged has not been
satisfactorily discharged by the State.
It is our considered view
that the matter required a deeper probe and investigation and did
not call for a summary rejection. That apart in State of Orissa &
Ors. Vs. Harapriya Bisoi (supra) the issue with regard to validity
of a Hatapatta similar to
Ext. 1 was found to be the subject
matter of an ongoing criminal investigation. All these required the
elimination of even slightest of doubt with regard to the
authenticity of the relied upon documents. The effect of fraud on
judicial orders has also been exhaustively considered in State of
Orissa & Ors. Vs. Harapriya Bisoi (supra) and it will not be
necessary to reiterate the views expressed therein except to say
that on the slightest of doubt or even prima facie proof of fraud,
the matter must be thoroughly investigated by the court to arrive
at the truth. Judicial order must be based on strong foundational
facts free from any doubt as regards the correctness and
authenticity thereof. In the light of the facts noticed by us the High
Court, in our considered view, ought to have investigated the
matter a little further instead of summarily holding the objections
of the State to be mere claims or assertions of fraud without legal
proof.
16. However, in view of our conclusions on the issue of possession
of the plaintiffs’ predecessors on the date of vesting of the land
under the Abolition Act and the continuity of the tenure claimed by
the plaintiffs after such vesting under Section 8(1) of the Abolition
Act the plaintiffs’ suit is liable to be dismissed and the decree
granting relief to the plaintiffs is required to be reversed.
We,
therefore, set aside the judgment and order dated 29.7.2000
passed by the High Court in F.A.No.10 of 2001 and allow Civil
Appeal No. 1812/2010 challenging the said order. The remaining
civil appeals shall stand decided accordingly.
Specifically, the
orders passed by the High Court in Writ Petition Nos. 7434 and
7962 of 2008 are set aside whereas Writ Petition No. 8874/2008
shall stand disposed on in terms of the order passed in Civil Appeal
No. 1812/2008.
17. All the appeals shall stand decided in the above terms.
..............................J.
[RANJAN GOGOI]
..............................J.
[R.K.AGRAWAL
NEW DELHI,
OCTOBER 09, 2014.
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