(SUPREME COURT OF INDIA)
Sudhangshu Mohan Deb (Dead) by LRs.
Vs
Niroda Sundari Debidhup and Others
HON'BLE JUSTICE BRIJESH KUMAR AND HON'BLE JUSTICE ARUN KUMAR
20/02/2004
Civil Appeal Nos. 5112-5113 of 1997
JUDGMENT
The Order of the Court is as follows
Hon'ble Justice Arun Kumar
This litigation has a chequered history. Land comprised in Jot No. 145 standing
in the name of one Sonatan Dhopi was acquired by the then Maharaja of Tripura
in the year 1347 T.E. corresponding to 1937 A.D. for a public purpose viz.
construction of motor stand and pathway etc. It was found that the acquired
land was in excess of the requirement, therefore, the excess land was decided
to be settled in favour of tenants. One Dhirendrajit Singh Roy (predecessor of
the appellant) and Jagabandhu Dhopi, who is said to be nephew of original owner
Sonatan Dhopi, (predecessor of the respondents) were the applicants for
settlement of the excess land. Application of Jagabandhu Dhopi was rejected
while that of Dhirandrajit Singh Roy was accepted and registered patta granting
Takshishi Taluki rights in his favour was executed. In the year 1949 Jagbandhu
Dhopi, however encroached upon the land, subject matter of the patta which led
Dhirandrajit Singh Roy to file a suit for eviction being Miscellaneous Case No.
141 of 1956 in the Court of District Magistrate-cum-Collector. During the
pendencey of the suit Dhirendrajit Singh Roy sold the suit land to Sudhangshu
Mohan Deb (since deceased and represented by LRs), the appellant herein, on 10th
December, 1957. The name of the appellant was duly substituted in place of
Dhirendrajit Singh Roy in the eviction suit. Vide order dated 27th June, 1958
the District Magistrate directed the SDO to arrange delivery of possession of
portion of the suit land which was vacant to the plaintiff and for the rest the
appellant was directed to move civil court for recovery of possession. Dhopi
preferred an appeal against the said order before the Chief Commissioner. The
Chief Commissioner directed appellant to file a civil suit for the relief of
possession of the suit land. On 30th June, 1959 the appellant filed Title Suit
No. 47 of 1962 for declaration of Takshishi Taluki right and for recovery of
possession. The said suit was decreed on 25th March, 1963. The appeal filed by
Dhopi against the decree was dismissed on 28th April, 1965. Dhopi filed second
appeal before the Judicial Commissioner. However on 28th May, 1965, the
appellant took possession of the suit land in execution of the decree that was
passed in his favour.
2. On 25th October, 1961 the Tripura Land Revenue and Land
Reforms Act, 1960 (hereinafter referred to as the "Act") was
notified. The said Act came into force with effect from 14th November, 1961.
The Judicial Commissioner allowed the appeal filed by Dhopi on 12th April, 1971
holding that in view of the Act, the land in question vested in the Government
and the appellant had lost his right to seek its possession. The Act contained
provision in Sections 134 and 135 which had the effect of vesting all estates
situated in a notified area in the Government free from all encumbrances. All
right, title and interest of every intermediary in such estates got
extinguished as a result of the statutory provision. In the appeal the present
appellant had moved an application under Order 41 Rule 27 to bring on record by
way of additional evidence the fact that after the vesting of the land in the
Government, provisional khatiyan had been granted by the Government in his
favour with respect to the suit land. The said application was, however,
rejected on the ground that khatiyan was still provisional and was yet to be
finalised. Section 136 of the Act entitled an intermediary to retain possession
of the vested land subject to payment of land revenue directly to the
Government. The Section is reproduced as under:
Section 136: (1) Notwithstanding anything contained in Sections 134 and 135,
an intermediary shall, subject to the provisions of sub-section (2), be
entitled to retain with effect from the vesting date,-
(a) homesteads, building and structures together with the appurtenant thereto
in the possession of the inter-mediary other than buildings vested in the
Government under Section 235;
(b) lands under the personal cultivation of the intermediary;
(c) lands in which permanent rights have not already accrued to a tenant under
any custom, agreement or law and which have been leased by an intermediary who,
both at the commencement of the lease and on the vesting date, was a person
under disability; *
(d) lands held by the intermediary as mortgagor which are subject to
usufructuary mortgage and are under the personal cultivation of the mortgagee;
(e) lands comprised in orchards or used for the purpose of live-stock breeding,
poultry, farming, or dairy forming, which are in the occupation of the
intermediary;
(f) so much of the lands comprised in a tea garden, mill, factory or workshop
as in the opinion of the State Government is required for such tea garden,
mill, factory or workshop.
2. An intermediary who is entitled to retain possession of any land under
sub-section (1) shall hold such land directly under the Government from the
vesting date as a raiyat therefor or as a non-agricultural tenant thereof, as
the case may be and be liable to pay therefore land revenue at full rate
applicable to similar lands in the locality." *
The appellant appears to have applied for fresh patta in pursuance of the said
provision. Provisional khatiyan was granted in his favour. This was contested
by Dhopi. However, the khatiyan was finalised in favour of appellant and it was
duly published in 1974.
3. The appellant filed Title Suit No. 13 of 1980 on 13th March, 1980 for
declaration of his title to the land and confirmation of possession in his
favour and injunction. It was placed in the suit that khatiyan had been
finalised in plaintiff's favour after contest and the plaintiff was paying land
revenue to the Government for the suit land. Thus the plaintiff (appellant
herein) pleaded that there was a fresh settlement of the suit land in his
favour which entitled him to retain possession of the land. This new settlement
by the Government was after vesting of the land in the Government in pursuance
of Sections 134/135 of the Act. The final khatiyan had been granted on 22nd
June, 1974. In view of the final khatiyan being granted in favour of the
plaintiff, the plaintiff claimed that he had a valid right to possession of the
suit land. Sonatan Dhopi had also filed an independent suit under Section 144
of the Code of Civil Procedure for restitution of possession of the suit land
to him in view of the decree in execution whereof he was dispossessed having
been set aside. Both the suits were clubbed together. The Trial Court on 11th
August, 1992 decreed the suit filed by the plaintiff i.e. present appellant
while the suit of the defendant-respondent for restitution of possession was
dismissed. The judgment and decree of the trial Court was set aside by the
lower appellate Court by its judgment dated 10th June, 1993. The suit for
possession filed by the appellant was dismissed while the suit for restitution
of possession filed by the respondent judgment debtor was decreed. The present
appellant filed a second appeal against said judgment which was dismissed by
the High Court by its impugned judgment dated 27th August, 1996. The present
appeal has been filed in this background.
4. The learned counsel for the appellant has contended that the present appeals
can be decided on the basis of subsequent events in view of which the previous
litigation has lost all relevance.
5. For this purpose our attention has been drawn to Sections 134 and 135 of the
Act. They are reproduced as under:
"Section 134: (1) As soon as may be after the commencement of this Act,
the State Government may, by notification in the Official Gazette, declare
that, with effect from the date specified in the notification (herein after
referred to as the vesting date), all estates situated in any area or areas and
all rights, title and interest of every intermediary in such estates shall vest
in the Government free from all encumbrances.
(2) Every notification under sub-section (1) shall also be published in such
other manner as may be prescribed.
(3) The publication of a notification in the manner provided in sub-sections
(1) and (2) shall be conclusive evidence of the notice of declaration to the
intermediaries whose interests are affected by such notification.
Section 135: Notwithstanding anything contained in any law for the time being
in force or any agreement or contract, express or implied, with effect from the
vesting date-
(a) each estate to which the notification relates and all rights, title and
interest of intermediaries in such estate shall vest in the Government free from
all encumbrances, including-
(i)) rights in hats, bazaars, ferries, forests, wastelands, abadi sits,
fisheries, tolls and other interests;
(ii) rights in any building other than a dwelling house or in any part of such
building, used primarily as office of cutcherry for collection of rent;
(b) all grants and confirmation of title to the estate and rights therein made
in favour of an intermediary shall cease and determine;
(c) any building used for educational or charitable purposes and held by the
intermediary shall vest in the Government for those educational or charitable
purposes;
(d) subject to the other provisions of this Act, every tenant holding any land
under an intermediary shall hold the same directly under the Government as a
raiyat thereof or as a non-agricultural tenant thereof, as the case may be and
shall be liable to pay to the Government land revenue equal to the rent payable
by him to the intermediary on the vesting date, subject to a maximum of the
value of one-eighth of the gross produce which value shall be determined in the
manner prescribed: *
Provided that the tenant shall become the owner of any building or structure
constructed on such land at the expense of the intermediary on payment of such
compensation to the intermediary as is equivalent to its market value on the
vesting date, which value shall be determined in accordance with the rules made
in this behalf;
(e) all arrears of land revenue, local rates, cesses and other dues lawfully
payable to the Government by the intermediary on the vesting date in respect of
the estate shall without prejudice to any other mode of recovery be recoverable
by deduction from the compensation payable to the intermediary;
(f) all rents and other dues in respect of the estate for any period after the
vesting date which, but for this Act, would be payable to an intermediary shall
be payable to the Government and any payment made in contravention of this
clause shall not be valid discharging of the person liable to pay the same;
(g) where under any agreement or contract made before the vesting date, any
rent, cess, local rate or other dues for any period after the said date has
been paid to or compounded or released by an intermediary, the same shall,
notwithstanding such agreement or contract, be recoverable by the Government
from the intermediary, and may, without prejudice to any other mode or
recovery, be realised by deduction from the compensation payable to the
intermediary." *
In Sections 134 and 135, word 'intermediary' has been used. The said word is
defined in Section 133 as under:
"Section 133:
(a)........
(b)........
(c) "intermediary" means a person who holds in an estate the right,
title or interest of a talukdar and includes-
(i) a person who holds land either revenue-free or at a concessional rate.
(ii) A tenure holder.
(d)........
(e)........ *
6. From a perusal of the above provisions, it will be seen that all estates in
a notified area vest in the Government free from all encumbrances. All right,
title and interest of every intermediary in the estates stands extinguished.
After the notified date, no one except the State Government is left with any
right, title or interest in the subject lands. Once the lands vested in the
State Government, the State Government is free to deal with the same in any
manner it decides. This may include a decision on the part of the State
Government to grant tenancy rights with respect to the lands or any portion
thereof in favour of any party on payment of land revenue. It appears that in 1968
the appellant applied for grant to right as a 'Raiyat' or as a non-agricultural
tenant for the land in suit on payment of land revenue under Section 136(2) of
the Act. The State Government granted the right as a 'raiyat' in favour of the
appellant which was evidenced by a "khatiyan" (entry in the revenue
records showing tenancy) in appellant's favour. The khatiyan was initially
granted on a provisional basis which was after contest finalised in favour of
the appellant in 1974. The revenue entry was published in the revenue records
which is evidenced by the khatiyan. The effect of grant of khatiyan in favour
of the appellant is that his possession of the lands is under the Government
and is with the consent of the Government and he is paying land revenue to the
Government for the same. In other words the appellant gets a fresh right to
possession of the land as a tenant. Section 43 of the Act conveys the
consequence of publication of khatiyan. The said Section is reproduced as
under:
"Section 43:
(1) when a record to rights has been prepared, the survey officer shall
published a draft of the record in such manner and for such period as may be
prescribed and shall receive and consider by objections which may be made
during the period of such publication, to any entry therein or to any omission
therefrom.
(2) When all objections have been considered and disposed of in accordance with
the rules made in this behalf, the survey officer shall cause the record to be
finally published in the prescribed manner.
(3) Every entry in the record of rights as finally published shall, until the
contrary is proved, be presumed to be correct." *
7. It will be seen from the above provision that once a khatiyan is finalised
and it publication takes place, it is presumed to be correct until the contrary
is proved. The final khatiyan stands published in favour of the appellant which
gives the appellant right to remain in possession of the suit land. This is a
fresh right created in favour of the appellant by the State Government in whom
the entire land had vested by virtue of Sections 134 and 135 of the Act.
8. On the basis of these facts, it is submitted that the appellant's right to
possession of land is legal, valid and justified while the respondents have no
right whatsoever to seek possession of the land. On promulgation of the 1960
Act, both parties lost the right to possession of the suit lands. The right to
possession of the lands had been subsequently conferred on the appellant by the
State Government. So far as the respondents are concerned, there is nothing
which entitles them to seek possession of the lands.
9. In response to the above argument, the learned counsel for the respondents
submitted that in view of provisions of Section 144 of the Code of Civil
Procedure, the respondents were entitled to restitution of possession of the
lands. The respondents had been dispossessed from the suit lands in execution
of a decree which then existed in favour of the appellant. The decree was set
aside in appeal. As a consequence thereof, the respondents were entitled to be
restored possession of the lands. Even if the respondents were unauthorised
occupants of the lands, since they were dispossessed in execution of a decree
which had been set aside on appeal, they were entitled to restoration of the
possession. In our view this argument does not hold good in facts of the
present case. In normal course it may be correct to say that possession
obtained in execution of a decree has to be restored to the party dispossessed,
on the decree being set aside. But the present case is different. Here a
statute has intervened. The 1960 Act contains a vesting provision as a result
whereof the land in suit automatically vested in the State Government. The
statute has taken away the right of possession of the lands of the party who
was earlier in possession of the lands. The statutory provision has such a
salutory effect that even if somebody was in actual possession of the land on
the date of promulgation of the statute, he/she would lose the right to
possession and would have to hand over the possession to the State Government.
Therefore, the respondents do not have any right to ask for possession of the
lands. #
10. Next the learned counsel for the respondents argued that the point regarding
finalisation of khatiyan in favour of the appellant was taken before the
Judicial Commissioner in the previous litigation. The Judicial Commissioner did
not entertain this plea of the present appellant. The decision of the Judicial
Commissioner has become final which debars the appellant from raising the same
plea again in the present litigation. In other words, the plea of res judicata
is sought to be raised with respect to the claim of the appellant based on
grant of khatiyan in his favour. The learned counsel for the respondents
concedes that the appellant had applied for the fresh khatiyan in 1968.
Admittedly, the fresh khatiyan was finalised in favour of the appellant in 1974
when the same was published in accordance with Section 43 of the Act. We have
carefully considered this argument. In our view the plea of res judicata raised
by the learned counsel for the respondents is totally misconceived. The appeal
before the Judicial Commissioner was decided on 12th April, 1971. At that time,
the khatiyan in favour of appellant was only provisional and therefore the
Judicial Commissioner had refused to entertain the plea based on the grant of
fresh khatiyan in favour of the present appellant. There was no adjudication on
the basis of khatiyan in the previous litigation. In the meanwhile, the
khatiyan has been finalised in favour of the present appellant which happened
in 1974. Therefore, the question of plea regarding grant of fresh khatiyan
being barred by principles of res judicata does not arise. #
11. The learned counsel for the respondents also contended that the
finalisation of khatiyan in favour of the appellants was wrong as it was
contrary to rules. Therefore the same should not be taken into consideration. This
contention again, in our view, is devoid of any merit. The respondents cannot
challenge the khatiyan in favour of the appellant in the present proceedings.
They have to seek remedy, in available, elsewhere. The khatiyan was finalised
in favour of appellant after contest. So long as the khatiyan exists, it is
final in view of Section 43 of the Act. A reference was made to an order dated
22nd February, 1992 passed by the Director of Settlement and Land Records,
Government of Tripura, wherein it is observed that the suit land was liable to
be transferred in the khatiyan of the Tripura Government. It was argued that
the said order casts a shadow on the plea or grant of fresh khatiyan in favour
of the appellant. We are informed that the officer passing the said order has
himself stayed the order and the stay order is continuing. Apart from this, we
are of the view that the said officer is an officer of the State Government.
The State Government could cancel the khatiyan. It has done nothing to cancel
the khatiyan. No value can be attached to the order of the Director of
Settlement and Land Records. The argument is devoid of any force. #
12. We note from the plaint of the suit which has given rise to the present
appeals that the grant of fresh khatiyan in favour of the appellant has been
duly pleaded. The plaintiff-appellant has based the relief in the suit on that
plea. Yet we find that there is no issue on the question of legality and force
of the khatiyan. The respondents who had contested the suit all through did not
even claim an issue on this aspect. Therefore, it is too late in the day to
argue that the khatiyan finalised in favour of the appellant in 1974 has no
strength or value. #
13. Thus, we find no merit in any of the submissions made by the learned
counsel for the respondents. The claim of the appellant based in finalisation
of khatiyan in his favour in 1974 is fully justified. As a result of the 1960
Act, the land in question had vested in the State Government free of all
encumbrances. The State Government was free to deal with the land in any manner
it chose to do. On application of the appellant the State Government granted
khatiyan in favour of the appellant with respect of the suit lands. The
khatiyan thus confers legal and valid right on the appellant to remain in
possession of the suit lands. The appeals are accordingly allowed. The impugned
judgment and decree of the High Court confirming that of the lower appellate
court are hereby set aside. The suit of the plaintiff-appellant stands decreed.
The suit for restitution of possession of lands filed by predecessor of
respondent stands dismissed. The parties are left to bear their respective
costs. #