Lord Lingaraj Bije, Bhubaneswar & Anr. Vs. Sh. Nityananda Mishara & Ors.
EmailAppeal: Civil Appeal No. 5256 of 1995
(Arising out of S.L.P.(C) No.3520 of 1992)
(Arising out of S.L.P.(C) No.3520 of 1992)
Petitioner: Lord Lingaraj Bije, Bhubaneswar & Anr.
Respondent: Sh. Nityananda Mishara & Ors.
Apeal: Civil Appeal No. 5256 of 1995
(Arising out of S.L.P.(C) No.3520 of 1992)
(Arising out of S.L.P.(C) No.3520 of 1992)
Judges: R.M. SAHAI G.T. NANAVATI, JJ.
Date of Judgment: Feb 05, 1995
Head Note:
RELIGIOUS ENDOWMENT
Orissa Hindu Religious Endowments Act, 1951
Section 25, 19, 68 read with Orissa Estate’s Abolition Act- Section 6 and 7-Rights of transferee- Land let out to original tenant, devolving upon widow on tenants death-In application for recovery of possession,said widow held to be occupancy tenant-Transfer by her to respondents – Their application under Orissa Estates Abolition Act, rejected – Further application by land lord for recovery under Section 25 on grounds that land was settled with it-High Court, however deciding the settlement in its favour to be contrary to law- Maintainability of subsequent application. Remedy available to transtrees. Held that applica-tion under Section 25 was maintainable as it can be filed against any person who is otherwise in unauthorized occupation. The respondents, however can approach the civil court and can establish that they or their predecessor had acquired occupancy tenancy rights. Land lord/appellant accordingly directed to approach the civil court.
Held:
But it cannot be disputed that the right of the respondent and his predecessor about the claim of occupancy rights had to be determined and adjudicated by some competent authority. It is not possible to shut out the respondent only because his application under Sections 6 and 7 was rejected. There was no adjudication on merits by the appellate authority,he only reason for dismissing the application was that the respondent being not an intermedi-ary was not entitled to approach for settlement under Sections 6 and 7 of the Act. If this bne so and the respondent can establisg that they or their predecessors acquired rights of ocupancy tenant then Section 8 of the Abolition Act and even the notifica-tion issued in 1994 may not be of any avail. Cibsudering these facts it appaears expedient to approach the Civil Court for aproipriate relief.(Para 4)
JUDGEMENT:
R.M. Sahai, J
1.This appeal is directed against order passed by the High Court in exercise of its writ jurisdiction quashing the order passed by the Commissioner of Endowments under Section 25 of the Orissa Hindu Religious Endowments Acts, 1951 (hereinafter referred to as ‘the Act’).
2.Facts in brief are that the land, originally,belonged to Lord Lingaraj, the appellant. It was let out, in 1937 before coming into force of the Act by the Trust Board,in favour of one Dr. Ramendu Ray. The land was agricultural waste land which was reclaimed by Dr. Ray and he continued in possession till his death. After his death his widow Bhibhati succeeded to the estate and paid rent to the Board. In 1970 an application was filed on behalf of the appellant under Section 68 of the Act for recovery of possession. It was allowed. The order was, however, set aside by the Commissioner on 7.5.1971 and it was held that she became occupancy tenant. One appears to have transferred the land in dispute in favour of respondents. They approached the Tahsildar under Sections 6 and 7 of the Orissa Estates Abolition Act (referred as ‘Abolition Act’) for being regarded as occupancy tenant. tenant. The application was rejected. In further appeal it was held that their application was not maintainable as provi-sions of Section 6 and 7 could be invoked only by a person with whom land has been settled as intermediate. The appellant there-after field another application under Section 25 of the Act for recovery of the property. It was alleged that after the enforce-ment of Abolition Act, land was settled with the intermediary that is, the appellant who leased it out to Bhibhati who alienat-ed it in favour of the respondent in contravention of Section 19 of the Act, therefore, the respondents were liable to ejectment. The application was allowed. The order was challenged by way of a not examine the question whether the proceedings under Sections 6 and 7 of the Abolition Act were in accordance with law and wheth-er the procedure provided under Section 8A was observed. The High Court felt that although different aspects of the case had not been examined and it would have been advisable to remand the matter to the Commissioner but the litigation having gone for number of years and the claim of the respondent having been firmly established it was not necessary to prolong it further. The High Court held that the lease was given in favour of Dr. Ray even before the Orissa Hindu Religious Endowments Act, 1939 had come into force. It was further held that in the earlier proceed-ings for eviction initiated by the appellant under Section 68 of the Act it was clearly held that Dr. Ray and after him his widow had acquired occupancy tenancy rights and this decision having become final as the appellant did not challenge it the possession of Bibhati was not unauthorised and she having been an occupancy tenant the entire proceedings by which the land was settled with appellant as intermediary was contrary to law.
3.Section 25 of the Act permits the trustee to file an applica-tion against a person who was otherwise in unauthorised occupa-tion. The application filed by the appellant,therefore,was main-tainable. But the respondent was not preluded in these proceed-ings from claiming that he had acquired rights and he was not in unauthorised occupation. It was also open to him to claim that his predecessor had a better title than the appellant and,there-fore,no order under Section 25 could have been passed. It is not necessary to say anything further as even though the High Court has held the earlier order passed by the Commissioner under Sec-tion 68 to be res judicata and the appellant is claiming that the respondents’ predecessor in interest lost her right and title once Abokutuib Act was enforced and the property was settled with th3 appellant under notification issued in 1974 under Sec-tion 7 of the Aboliton Act,m as the proceedings under Section 25 of the Act for eviction of the respondent are summary in nature. That is clear from sub-section (3) of Section 25 which permits an agrieved party to approach the Civil Court. Sri Sachar, learned senior counsel, however, vehemently argued that in view of the provisions in Abolition Act no suit could be filed in the Civil court as these matters were covered by Chapter II of the Aboli-tion Act. On the other hand Sri Rao,learned senior counsel for the respondent urged that the remand to the Commissioner would be delaying the matter as in view of the provisions of sub-section(3) of Section 25 the aggrieved party would still have a remedy to go to Civil Court. He,therefore,urged that the litiga-tion haing gone for quite long it twas approproate and expedient either to direct the Civil Court to decide the dispute or to dismiss the appeal and direct the apellant to approach the aproeal and direct the appellant to approach the appropriate court if he was aggrieved by order.
4. We have considered the rival submisions on the question of forum. There is undoubtedly difficulty in remanding the matter to the Commisioner as the might be faced with an order pased in 1971 in favour of the respoindent. Further the order passed by the appropriate authorities undner the Abolition Act may preclude him from entering into the question whether the respondent had ac-quird ocupancy rights. But it cannot be disputed that the right of the respondent and his predecessor about the claim of occupan-cy rights had to be determined and adjudicated by some competent authority. It is not possible to shut out the respondent only be-couse his aplication under Sections 6 and 7 was rejected. There was no adjudication on merits by the appellate authority. he oly reason for dismissiog the application was that the respondent being not not an intermediary was not entitled to approach for settlement under Secrtion 6 and 7 of the Act. If this bne so and the respondent can establisg that they or their predecessors acquired rights of ocupancy tenant then Section 8 of the Aboli-tion Act and even the notification issued in 1994 may not be of any avail. Cibsudering these facts it appaears expedient to approach the Civil Court for aproipriate relief.
5. In the result, this appeal fails and is dismissed. Even thoiugh it is not necessary to make any observation as the law itself is vlear,however,in order to obviate any techinical de-fect, the appelant is permitted to approach the Civil Court which shall decide the dispute between the parties unhindered by the Cpmmissioner in earliier proceeding under Section 68 of the Act or the procedidngs undner Sections 6 and 7 of the Abolition Act. There shall be no order as to costs.
1.This appeal is directed against order passed by the High Court in exercise of its writ jurisdiction quashing the order passed by the Commissioner of Endowments under Section 25 of the Orissa Hindu Religious Endowments Acts, 1951 (hereinafter referred to as ‘the Act’).
2.Facts in brief are that the land, originally,belonged to Lord Lingaraj, the appellant. It was let out, in 1937 before coming into force of the Act by the Trust Board,in favour of one Dr. Ramendu Ray. The land was agricultural waste land which was reclaimed by Dr. Ray and he continued in possession till his death. After his death his widow Bhibhati succeeded to the estate and paid rent to the Board. In 1970 an application was filed on behalf of the appellant under Section 68 of the Act for recovery of possession. It was allowed. The order was, however, set aside by the Commissioner on 7.5.1971 and it was held that she became occupancy tenant. One appears to have transferred the land in dispute in favour of respondents. They approached the Tahsildar under Sections 6 and 7 of the Orissa Estates Abolition Act (referred as ‘Abolition Act’) for being regarded as occupancy tenant. tenant. The application was rejected. In further appeal it was held that their application was not maintainable as provi-sions of Section 6 and 7 could be invoked only by a person with whom land has been settled as intermediate. The appellant there-after field another application under Section 25 of the Act for recovery of the property. It was alleged that after the enforce-ment of Abolition Act, land was settled with the intermediary that is, the appellant who leased it out to Bhibhati who alienat-ed it in favour of the respondent in contravention of Section 19 of the Act, therefore, the respondents were liable to ejectment. The application was allowed. The order was challenged by way of a not examine the question whether the proceedings under Sections 6 and 7 of the Abolition Act were in accordance with law and wheth-er the procedure provided under Section 8A was observed. The High Court felt that although different aspects of the case had not been examined and it would have been advisable to remand the matter to the Commissioner but the litigation having gone for number of years and the claim of the respondent having been firmly established it was not necessary to prolong it further. The High Court held that the lease was given in favour of Dr. Ray even before the Orissa Hindu Religious Endowments Act, 1939 had come into force. It was further held that in the earlier proceed-ings for eviction initiated by the appellant under Section 68 of the Act it was clearly held that Dr. Ray and after him his widow had acquired occupancy tenancy rights and this decision having become final as the appellant did not challenge it the possession of Bibhati was not unauthorised and she having been an occupancy tenant the entire proceedings by which the land was settled with appellant as intermediary was contrary to law.
3.Section 25 of the Act permits the trustee to file an applica-tion against a person who was otherwise in unauthorised occupa-tion. The application filed by the appellant,therefore,was main-tainable. But the respondent was not preluded in these proceed-ings from claiming that he had acquired rights and he was not in unauthorised occupation. It was also open to him to claim that his predecessor had a better title than the appellant and,there-fore,no order under Section 25 could have been passed. It is not necessary to say anything further as even though the High Court has held the earlier order passed by the Commissioner under Sec-tion 68 to be res judicata and the appellant is claiming that the respondents’ predecessor in interest lost her right and title once Abokutuib Act was enforced and the property was settled with th3 appellant under notification issued in 1974 under Sec-tion 7 of the Aboliton Act,m as the proceedings under Section 25 of the Act for eviction of the respondent are summary in nature. That is clear from sub-section (3) of Section 25 which permits an agrieved party to approach the Civil Court. Sri Sachar, learned senior counsel, however, vehemently argued that in view of the provisions in Abolition Act no suit could be filed in the Civil court as these matters were covered by Chapter II of the Aboli-tion Act. On the other hand Sri Rao,learned senior counsel for the respondent urged that the remand to the Commissioner would be delaying the matter as in view of the provisions of sub-section(3) of Section 25 the aggrieved party would still have a remedy to go to Civil Court. He,therefore,urged that the litiga-tion haing gone for quite long it twas approproate and expedient either to direct the Civil Court to decide the dispute or to dismiss the appeal and direct the apellant to approach the aproeal and direct the appellant to approach the appropriate court if he was aggrieved by order.
4. We have considered the rival submisions on the question of forum. There is undoubtedly difficulty in remanding the matter to the Commisioner as the might be faced with an order pased in 1971 in favour of the respoindent. Further the order passed by the appropriate authorities undner the Abolition Act may preclude him from entering into the question whether the respondent had ac-quird ocupancy rights. But it cannot be disputed that the right of the respondent and his predecessor about the claim of occupan-cy rights had to be determined and adjudicated by some competent authority. It is not possible to shut out the respondent only be-couse his aplication under Sections 6 and 7 was rejected. There was no adjudication on merits by the appellate authority. he oly reason for dismissiog the application was that the respondent being not not an intermediary was not entitled to approach for settlement under Secrtion 6 and 7 of the Act. If this bne so and the respondent can establisg that they or their predecessors acquired rights of ocupancy tenant then Section 8 of the Aboli-tion Act and even the notification issued in 1994 may not be of any avail. Cibsudering these facts it appaears expedient to approach the Civil Court for aproipriate relief.
5. In the result, this appeal fails and is dismissed. Even thoiugh it is not necessary to make any observation as the law itself is vlear,however,in order to obviate any techinical de-fect, the appelant is permitted to approach the Civil Court which shall decide the dispute between the parties unhindered by the Cpmmissioner in earliier proceeding under Section 68 of the Act or the procedidngs undner Sections 6 and 7 of the Abolition Act. There shall be no order as to costs.
