Orissa High Court
RSA--18/2005 (12 Apr, 2017)
PRESENT: THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing: 06.04.2017 & Date of Judgment:12.04.2017
Dr.A.K.RATH, J.
This is an appeal by the plaintiff.
2. The dispute pertains to a big tank having an area of Ac.36.68 dec. of land appertaining to C.S. Holding No.184, Khata Nos.1106, 1107, 1264, 1265, 1302 and 1306 of mouza Sikabahanga in the district of Bolangir.
3. The case of the plaintiff is that his great grandfather Pati Sai alias Patel was the Gountia (Thikadar) of village Sikabahenga. Thereafter his grandson Hari Sai (Patel) and after him, his son Dharamsingh Patel was the Gountia of the village till the year 1950. The village was originally a forest. Pati Sai had cleared the forest and settled there. He reclaimed some waste lands and excavated a tank. He was using the water of the tank for irrigation of his land. He was also carrying on pisciculture. On 27.11.1822, the then Superintendent of Patna-State had granted protected status to him over the tank due to his long possession and improvement made over it. In 1894 the tank was recorded in the name of Pati Gountia in Jalamagna khata. During the settlement of the year 1916, the same was recorded in the name of Hari Sai Patel. While the mater stood thus, during the settlement of the year 1936, all the tanks and tanks of Patna-State, whether private or public, were recorded in the name of Patna-State in Jalchar khata. In spite of the same, Hari Sai Patel remained in possession of the same. There was discontentment amongst the subjects of Patna-State due to inclusion of all the water tanks of the State in Jalachar khata. The King of Patna-State issued a proclamation that inclusion of water tanks in Government Jalchar khata would not affect the right of its owner. He invited objection from the persons who had interest on those tanks. Accordingly, Hari Sai Patel filed a petition before the Sub-Divisional Officer, Revenue of the then Patna-State claiming his ownership and fishery right over the suit tank. After merger of Patna-State with the Union of India, the said case was transferred to the Superintendent of Land Records and renumbered as Fishery Case No.25 of 1950. The Superintendent of Land Records by order dated 14.3.50/14.9.51 issued Patta of the suit tank in favour of Hari Sai. After Hari Sai his son Dharamsingh Patel became the owner of the tank. The Government of Orissa transferred the same to Saunthpur Gram Panchayat and, thereafter to the Irrigation Department of the Government of Orissa. The transfer was not lawful and binding on him. The defendants have no semblance of right, title, interest and possession over the tank. On 1.7.1994, the defendants objected the plaintiff and his father to do pisciculture. After issuing notice to the Collector, Bolangir under section 80 of the c.p.c. and the Sarpanch of Saunthpur Gram Panchayat under section 138 of the orissa gram panchayat act, he instituted the suit for declaration of right, title and interest over the suit tank, confirmation of his possession with right of pisciculture over it, in alternate delivery possession of the same to him evicting the defendants and permanent injunction restraining the defendants from entering into the tank.
4. The State of Orissa, defendant no.1 contested the suit without filing the written statement. The defendant no.2 filed a written statement denying the assertions made in the plaint. According to defendant no.2, the plaintiff has no right, title, interest and possession over the suit tank. The lands, which were in possession of Dharamsingh Patel as Thikadar of the village, had been settled in his name as raiyat after abolition of Thakidari system. The Sub-Divisional Officer, Bolangir had transferred the suit tank to Saunthpur Gram Panchayat on 27.5.1962. Since then the Gram Panchayat is exercising its ownership over it. Village Sikabahanga was under Chhatamakhana Gram Panchayat for a certain period. Dharamsingh Patel, father of the plaintiff, was the Sarpanch of Chhatamakhana Gram Panchayat in the year 1967-68. He had maintained the suit tank on behalf of the Gram Panchayat. The plaintiff and his relatives had taken lease of the suit tank from Chhatamakhana Gram Panchayat in the year 1970-71, 1972-73 and 1974-75 respectively. From the year 1991, the suit tank is under the direct supervision of the Minor Irrigation Department of the Government of Orissa and the same is reserved for public purpose. The Minor Irrigation Department has spent a huge amount of money for its maintenance. No notice had been issued to the defendants before institution of the suit.
5. Stemming on the pleadings of the parties, the learned trial court struck eleven issues. To substantiate the case, the plaintiff had examined three witnesses and on his behalf, nineteen documents had been exhibited. The defendants had examined two witnesses and on their behalf, seven documents had been exhibited. The learned trial court, on a thread bare analysis of the evidence on record, both oral and documentary, and on an anatomy of the pleadings, came to hold that father of the plaintiff and the plaintiff had not exercised their rights of fishery over the suit tank after its transfer to Chhatamakhana G.P. in the year 1962 and latter to Saunthpur Gram Panchayat except taking lease of the same for the year 1974-75. The other persons had taken lease of the tank from the Panchayat annually in between the year 1967 to 1994. It further held that the plaintiff and his ancestors were neither in possession of the suit tank nor had exercised fishery right over it in between 1950-95. Held so, the learned trial court dismissed the suit. The unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned District Judge, Bolangir, which was subsequently transferred to the court of the learned Addl. District Judge, (FTC), Bolangir and renumbered as Title Appeal No.27/49 of 2000-02. The said appeal was dismissed.
6. The Second Appeal was admitted on 1.12.2006 on the following substantial questions of law:
1. When defendants do not claim any right over the suit tank on the basis of adverse possession, whether findings of the learned courts below that the suit is barred by Article 64 and 65 of Limitation Act is sustainable in the eye of law ?
2. When both the courts below have not discarded the most important and material documentary evidences like Ext.2 to Ext.7 and Ext.12, Ext.13, Ext.14 & 14(A) and Ext.15 which show that land record, Superintendent has conferred fishery right on the father of the plaintiff, whether dismissal of the suit for declaration of the fishery right of the plaintiff on the ground that plaintiff is not in possession of the suit tank is illegal, perverse and is not sustainable in the eye of law ?
3. When defendants do not plead and prove that from which date they possessed the suit tank adversely to the interest of plaintiff, whether findings of both Courts below that fishery right of the plaintiff has been extinguished can be sustained in the eye of law ?
4. Whether findings of the Court below that defendant no.1 is in possession of the suit land cannot be sustained in the eye of law when the defendant no.1 has failed to produce and prove so called lease deed on the basis of which he claims to be in possession of the suit tank ?
7. Heard Mr.Budhiram Das, learned Advocate for the appellant and Mr.Swayambhu Mishra, learned Additional Standing Counsel for respondent no.1.
8. Mr.Das, learned Advocate for the appellant submitted that the great grandfather of the plaintiff was the Gountia of the village. He excavated the suit tank. He was using the water of the said tank for irrigation of his agricultural land. He was rearing fish on the tank. After him, his grandson Hari Sai Patel and thereafter his son Dharmsingh Patel became the Gountia of the village. The then Supt. of Patna-State had granted protected status to Pati Gountia over the said tank. In 1894 settlement, the suit tank was recorded in the name of Pati Gountia in Jalamagna khata. The same was also recorded in the name of Hari Sai Patel in settlement year 1916. However, in the settlement of the year 1936, the same was recorded in the name of Patna-State in Jalachar khata, but then Hari Sai Patel remained in possession of the same. When the King of Patna- State issued a proclamation inviting objection from the persons, who had interest over the tank, Hari Sai Patel filed a petition on 21.2.1942 before the Sub-Divisional Officer, Revenue, Patna-State claiming his ownership and fishery right over the suit tank. After merger of the Patna-State with the Union of India by order dated 14.3.50/14.9.51, the Suptd. of Land Records issued patta in favour of Hari Sai Patel. After Hari Sai Patel, his son Dharmasingh Patel became the owner of the said tank. He further submitted that notwithstanding transfer of land in favour of Saunthapur Gram Panchayat and therafter Irrigation Department, the plaintiff has unfettered right to carry on pisciculture over the land.
9. Per contra, Mr.Mishra, learned Additional Standing Counsel for respondent no.1 submitted that Gountia system in the State has been abolished. After abolition of Gountia system, the State of Orissa became the paramount owner of the suit tank. The lands, which were in khas possession of the Gountia, had been settled in his name. Neither the ancestors of the plaintiff nor the plaintiff was in possession of the suit tank. The suit tank was transferred by the State in favour of Saunthapur Gram Panchayat. The father of the plaintiff was Sarpanch of Chhatamakhana Gram Panchayat in the year 1967-68 and had maintained the suit tank on behalf of the said Gram Panchayat. The plaintiff and his relatives had taken lease of the suit tank from Chhatamakhana Gram Panchayat in the year 1970-71, 1972-73 and 1974-75. Since 1991 the suit tank is under the direct supervision of Minor Irrigation Department of Orissa.
10. In Gangadhar Sai and others Vrs. The Collector, Bolangir and others (S.A.No.90 of 1994 disposed of on 3.3.2017), the question arose as to whether right to catch and carry away the fish is a profit or benefit arising out of land is immovable property within the meaning and ambit of the Transfer of Property Act, and its sale has to be by means of a registered instrument in case its value exceeds Rs.100/-.
11. This Court held : Ananda Behera and another v. State of Orissa and another, AIR 1956 SC 17 is a locus classicus on the subject. The dispute pertained to fishery rights of the plaintiffs over a portion of Chilka lake. The estate was vested in the State of Orissa under the Orissa Estates Abolition Act. Long before vesting of the estate, the petitioners had entered into contracts with the ex proprietor Raja of Parikud and had obtained from the latter, on payment of heavy sums, licences for catching and appropriating all the fish from the fisheries detailed in the schedule of the petition. The State of Orissa refused to recognise the licenses and were about to re- auction the rights. At this juncture, the petitioner had approached the apex Court under article 32 of the constitution of indiaon the ground that their fundamental rights enshrined under Articles 19(1)(f) and 31 (I) were infringed. The question arose before the apex Court as to whether the petitioners had acquired any rights or interests in "property" by their several "purchases". The Constitution Bench of the apex Court held that the lake is immoveable property. After promulgation of the Orissa Estate Abolition Act, it vested in the State of Orissa. Right to catch and carry away fish in specific sections of the lake over a specified future period amounts to licence to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a profit a prendre which has been regarded as a benefit that arises out of the land and, as such, is immoveable property. If profit a prendre is regarded as tangible immoveable property and the property value is more than Rs.100/- it requires registration under section 54 of the transfer of property act. The same view was followed in the Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh and others, AIR 1977 SC 2149. The apex Court in uncertain terms held that the right to catch and carry away the fish being a 'profit a prendre' i.e. a profit or benefit arising out of the land, it has to be regarded as immovable property within the meaning of the Transfer of Property Act, read in the light of section 3 (26) of the general clauses act. If a 'profit a prendre' is tangible immovable property, its sale has to be by means of a registered instrument in case its value exceeds Rs.100/- because of section 54 of the transfer of property act. If it is intangible, its sale is required to be effected by a registered instrument whatever its value. Therefore, in either of the two situations, the grant of the 'profit a prendre' has to be by means of a registered instrument. Accordingly, the transaction of sale of the right to catch and carry away the fish if not effected by means of a registered instrument would pass no title or interest.
12. The ratio in the case of Gangadhar Sai (supra) applies with full force to the facts of this case.
13. The dispute pertains to the plaintiffs claim over the suit tank, the value of which, by no stretch of imagination is less than Rs.100/-. Right to catch and carry away the fish is a profit a prendre. The same is construed to be immovable property within the meaning and ambit of the Transfer of Property Act, 1982. Its sale has to be by means of a registered instrument in case its value exceeds Rs.100/- Since no registered instrument has been executed, the plaintiffs have no rights over the tank in question. Further the Gountia system in the State has been abolished. The tank vested in the State free from all encumbrances. The State of Orissa is the paramount owner of the tank.
14. Resultantly, the appeal fails and is dismissed. No costs.
15. Before parting with the case, it is apt to refer to a decision of the apex Court in the case of Jagpal Singh and others Vrs. State of Punjab and others (2011) 11 SCC 396. The apex Court has expressed its concern over the public utility on lands in villages used for centuries used for the common benefit of the villagers of the village and held thus:-
2.Since time immemorial there have been common lands inhering in the village communities in India, variously called gram sabha land, gram panchayat land, (in many North Indian States), shamlat deh (in Punjab etc.), mandaveli and poramboke land (in South India), Kalam, Maidan, etc., depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village such as ponds for various purposes e.g. for their cattle to drink and bathe, for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyards, etc. These lands stood vested through local laws in the State, which handed over their management to Gram Sabhas/Gram Panchayats. They were generally treated as inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of this land to landless labourers and members of the scheduled castes/tribes, but this was only to be done in exceptional cases.
3.The protection of commons rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, in Chigurupati Venkata Subbayya vs. Paladuge Anjayya, 1972(1) SCC 521 (529) this Court observed : "23. It is true that the suit lands in view of section 3 of the estates abolition act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away.. The rights of the community over the suit lands were not created by the principal or any other landholder. Hence those rights cannot be said to have been abrogated by section 3(c) of the estates abolition act."
2.Since time immemorial there have been common lands inhering in the village communities in India, variously called gram sabha land, gram panchayat land, (in many North Indian States), shamlat deh (in Punjab etc.), mandaveli and poramboke land (in South India), Kalam, Maidan, etc., depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village such as ponds for various purposes e.g. for their cattle to drink and bathe, for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyards, etc. These lands stood vested through local laws in the State, which handed over their management to Gram Sabhas/Gram Panchayats. They were generally treated as inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of this land to landless labourers and members of the scheduled castes/tribes, but this was only to be done in exceptional cases.
3.The protection of commons rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, in Chigurupati Venkata Subbayya vs. Paladuge Anjayya, 1972(1) SCC 521 (529) this Court observed : "23. It is true that the suit lands in view of section 3 of the estates abolition act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away.. The rights of the community over the suit lands were not created by the principal or any other landholder. Hence those rights cannot be said to have been abrogated by section 3(c) of the estates abolition act."
4. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs. Held so, the apex Court issued the following directions:-
23. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/ Poramboke/ Shamlat land and these must be restored to the Gram Sabha/ Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land. ....
Dr.A.K.Rath, J. Orissa High Court, Cuttack. The 12th April, 2017/CRB.
Dr.A.K.Rath, J. Orissa High Court, Cuttack. The 12th April, 2017/CRB.
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