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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NOS. 1812-1815 OF 2010

STATE OF ORISSA & ANR. ...   APPELLANT (S)

VERSUS

FAKIR CHARAN SETHI  ... RESPONDENT (S) (DEAD THROUGH LRS) & ORS.

J U D G M E N T

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.   

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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  

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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  

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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  

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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  

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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.  

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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  

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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  

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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

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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  

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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  

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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  

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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  

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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  

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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  

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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.  

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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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