ORISSA HIGH COURT, CUTTACK.

ORISSA HIGH COURT, CUTTACK.
W.P. (C) No. 7203 of 2010
In the matter of an application under Articles 226 and 227 of the Constitution of
India.
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Sukadev Nayak
…
Petitioner
…
Opp. Parties
Versus
Tahsildar, Niali and another
For Petitioner
:
For Opp. Parties :
M/s. Braja Mohan Biswal and G.S. Biswal.
Mr. S. Mishra, Addl. Govt. Advocate
(for O.P. No.1)
M/s. M.R. Panda & P.C.Moharana
(for O.P. No.2)
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PRESENT:
THE HONOURABLE MR. JUSTICE C.R. DASH
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Date of Judgment
:
28.03.2014
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C.R. Dash, J.
Tahsildar, Niali (opp. party no.1) vide composite order dated
29.10.2009 passed in O.L.R. Case No.67 of 1988 rejected the petition for
amendment filed by the petitioner and the objection to the Amin’s report filed by
the petitioner. Aforesaid order is impugned in this writ petition.
2.
The petitioner filed O.L.R. Case No.67 of 1988 before the
Tahsildar, Niali (opp. party no.1) to declare him as a ‘Raiyat’ in respect of Hal
Settlement Plot No.3395 measuring Ac.0.04 decimals under Khata No.136 of
mouza Pubakhanda. After taking evidence in the case and after hearing the
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parties, the Tahsildar, Niali (opp. party no.1) on 28.02.1990 allowed the petition
of the petitioner declaring him as a ‘Raiyat’ in respect of the aforesaid land.
Opposite party no.2 filed O.L.R. Appeal No.1 of 1991 before the Sub-Collector,
Sadar, Cuttack challenging the aforesaid order passed by the Tahsildar. The
Sub-Collector, vide order dated 30.05.1992 confirmed the order of the Tahsildar
and dismissed the appeal. Opposite party no.2 thereafter carried the matter in
O.L.R. Revision No.13 of 1992 to the Court of the A.D.M., Cuttack. Learned
A.D.M., Cuttack on 02.07.1998 dismissed the said revision and confirmed the
orders of the Tahsildar, Niali and Sub-Collector, Cuttack Sadar. Opposite party
no.2 was obliged to move this Court in O.J.C. No.12303 of 1998. This Court
while remitting back the matter to the Tahsildar, Niali (opp. party no.1) for
disposal afresh, observed thus :“Heard learned counsel for the parties at length.
Perused the materials available on record. Section 10 of
the OLR Act deals with settlement of dwelling houses of
agricultural labourers and the said section stipulates that
provisions of Section 9 of the OLR Act shall mutatis and
mutandis apply to the proceeding initiated under Section 10
of the Act. According to Mr. Kar, opposite party no.5 is an
agricultural labourer and he has constructed the dwelling
house over the portion of the property on being permitted
to do so by Bira Mohapatra. But then according to Section
9 of the OLR Act every person who is a tenant in respect of
any land but has no permanent and heritable rights in
respect of any site on which his dwelling house or farm
stands, shall have the right for settlement. Thus the
prerequisites for granting any order of settlement under
Section 9 of the OLR Act in favour of agricultural labourer
is that it should be conclusively held that he was in
cultivating possession of some other lands. In the absence
of such finding an order under Section 9 read with Section
10 of OLR Act cannot be passed. This aspect of law was
not kept in mind by the court below while deciding the
case. Law is well settled that an agricultural labourer while
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claiming right in consonance with Section 9 and 10 of OLR
Act has to first establish that he is a tenant in respect of
some land other than the site on which dwelling house or
firm house stands.”
After remand, the matter was taken up afresh. The petitioner on
28.07.2007 filed an amendment petition purported to be one under Order 6, Rule
17, C.P.C. praying therein for insertion of Hal Plot No.71 measuring an area of
Ac.0.35 decimals under Hal Khata No.246 of village Majhikhanda claiming
himself to be the recorded Khata owner and showing himself to be in cultivating
possession over the said land along with the co-sharers. Further, the petitioner
sought for amendment of the name of the recorded tenant of Hal Plot No.3395
under Hal Khata No.136 measuring an area of Ac.0.12 decimals of village
Pubakhanda, as ‘Bira Mohapatra’ by stating that said Bira Mohapatra had given
permission to the petitioner for construction of a dwelling house over the
aforesaid disputed land.
3.
Opposite party no.2 filed objection to such petition for amendment.
4.
In course of the earlier proceeding in O.L.R. Case No.67 of 1988,
Amin’s report was obtained.
After remand, further order was passed for
deputation of an Amin to enquire and the report of the Amin was obtained. In
the earlier Amin’s Report there was mention about existence of a thatched
house on the disputed plot. In the recent Amin’s Report there is no mention
about existence of any thatched house.
Objection was filed by the petitioner so far as acceptance of the
recent Amin’s Report is concerned on the ground that measurement has not
been taken properly and presence of the petitioner at the time of spot enquiry
has been shown by obtaining his L.T.I. on the report fraudulently.
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5.
Learned Tahsildar, Niali (opp. party no.1), vide the impugned
order rejected the amendment petition as well as the objection so far as the
recent Amin’s Report is concerned.
6.
Learned counsel for the petitioner submits that the petitioner being
an illiterate and ignorant of the requirements of the pleadings had not averred
about ‘cultivating possession’ over some other land, i.e. Hal Plot No.71
measuring Ac.0.35 decimals under Hal Khata No.246 of village Majhikhanda and
had also not taken the averments that the recorded tenant of Hal Plot No.3395
namely Bira Mohapatra had given him permission for construction of a dwelling
house over the disputed plot no.3395 under Hal Khata No.136. The amendment
sought for will not change the nature of the suit, rather the amendment, if
allowed, would entitle the petitioner to establish his right in accordance with the
requirement of Sections 9 and 10 of the O.L.R. Act. So far as rejection of the
Objection filed regarding acceptance of the recent Amin’s Report is concerned, it
is submitted by learned counsel for the petitioner that in the earlier report of the
Amin submitted in the case, there is clear mention regarding existence of a
thatched house over the disputed land in question, but the recent Amin’s report
is totally silent about the same, and therefore the said report should be rejected.
It is further alleged that in the recent Amin’s report L.T.I. of the petitioner has
been obtained fraudulently though he was not present at the time of spot enquiry
by the Amin.
7.
Learned counsel for the opposite party no.2 on the other hand
submits that the original petition in O.L.R. Case No.67 of 1988 is there on record
since 1988. Though the matter was brought up to the High Court through
different forums, at no point of time assertion regarding “cultivable possession”
of the petitioner along with his co-sharers over Hal Plot No.71 under Hal Khata
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No.246 of village Majhikhanda was raised. Further, initially O.L.R. Case No.67
of 1988 was filed by the petitioner against the Hal recorded tenant Bhagabat
Sahoo (opp. party no.2) and insertion of the name of Bira Mohapatra, from
whom the petitioner is asserted to have obtained permission for construction of
the house over the disputed land, subsequently by way of amendment is only an
after-thought keeping in view the observation of this Court in O.J.C. No.12303 of
1998 while remitting back the matter.
8.
So far as the recent Amin’s report is concerned, it is submitted by
learned counsel for opposite party no.2 that there might be a thatched house on
the disputed plot at the time of earlier Amin’s visit in the year 1989, but so far as
the recent Amin’s report is concerned, there being no mention about existence
of a thatched house, the recent report of the Amin cannot be thrown over board
on that score alone, when the enquiry by the Amin has been made in presence
of the petitioner and other gentries of the village. Opposite party no.2 has filed
counter affidavit taking the aforesaid stand.
9.
Opposite party no.1 has also filed counter affidavit taking a stand
that the petitioner having sought for amendment after a lapse of about 22 years
and having sought to introduce new facts, the petition for amendment has been
rightly rejected. On the Amin’s report, it is asserted by opposite party no.1 that
the Amin having given his report describing the disputed plot with all particulars,
such report cannot be rejected on the bald assertion of the petitioner.
10.
Perusal of the materials on record and submissions advanced by
learned counsels for the parties would show that Bira Mohapatra was not in
picture so far as grant of permission to the petitioner for construction of a
dwelling house over the disputed plot is concerned, when the petition under
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Sections 9 and 10 of the OLR Act was initially filed in 1988. As per the R.O.R.
published by the Settlement Authorities in the year 1986, the disputed land, i.e.
Hal Plot No.3395 measuring Ac.0.12 decimals under Hal Khata No.136 of village
Pubakhanda stands recorded in the name of Bhagabat Sahoo (opp. party no.2).
Subsequently, after twenty-two years however the petitioner sought to insert the
name of Bira Mohapatra by way of amendment to keep the petition in line with
the observation made by this Court while remitting back the matter in O.J.C.
No.12303 of 1998.
Fact of cultivating possession of the petitioner along with his cosharers over Hal Plot No.71 under Hal Khata No.246 of village Majhikhanda was
also sought to be inserted by way of amendment to keep the petition in line with
the observation made by this Court in the aforesaid writ petition (O.J.C.). The
petitioner, in order to get the benefit of Sections 9 and 10 of the O.L.R. Act, has
to show that he is in cultivating possession of some other land besides the land /
site on which his dwelling house and farm stand, as observed by this Court in
the aforesaid O.J.C.
After remand, only the petitioner having sought for
amendment as aforesaid, such an action by the petitioner must be held to be
after-thought. Further, the petitioner must be held to have tried to fill up the
lacunae in his case by taking a clue from the observation of this Court in the
aforesaid O.J.C. If the amendment would have been allowed, the same would
have certainly changed the nature and character of the entire lis. It would have
introduced new facts, which are not there in the original petition and which was
not raised for about 22 years, though the case travelled up to this Court through
different forums.
11.
In view of such fact, I do not find any infirmity in the order of the
Tahsildar, Niali (opp. party no.1) so far as rejection of the amendment petition is
concerned.
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12.
So far as the recent Amin’s report is concerned, learned counsel
for the petitioner submits that learned Tahsildar at least should have given an
opportunity to the petitioner to cross-examine the Amin, as the petitioner himself
disputes his presence at the time of spot enquiry. I find some force in such
assertion of the learned counsel for the petitioner. It has been specifically
asserted that the L.T.I. of the petitioner was obtained on the Amin’s report
fraudulently though he was not present at the spot at the time of enquiry.
Further it is alleged that though there is existence of a thatched house on the
disputed plot, there is no mention about existence of that thatched house in the
recent Amin’s report.
13.
Taking into consideration the nature of objection, it would have
been proper if learned Tahsildar, Niali would have allowed the petitioner to
cross-examine the Amin before acceptance of his report. In view of such fact,
the order of the Tahsildar in rejecting the objection filed by the petitioner on the
Amin’s report is quashed and learned Tahsildar, Niali (opp. party no.1) is
directed to give opportunity to all the parties concerned including the present
petitioner to cross-examine the Amin before acceptance of his recent report.
The writ petition is accordingly disposed of.
……………………
C.R. Dash, J.
Orissa High Court, Cuttack.
The 28th day of March, 2014.
S.K. Parida, Secy.

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