ORISSA HIGH COURT : CUTTACK R.F.A. No.333 OF 200.From a judgment and decree dated 12.07.2007 and 25.07.2007 respectively passed by Shri P.C. Patra, learned Civil Judge (Senior Division), Nayagarh in Money Suit No.97 of 1993 – III. -----------State of Orissa & others …… Appellants -versusSabitamayee Singh & others For Appellants : …… Respondents Advocate General and Addl. Standing Counsel. For Respondents : M/s. Milan Kanungo, D.Pradhan, Y.Mohanty, S.K.Mishra, A.Pattanaik, B. Pattanaik, S.N. Das, S.Nanda & B.B.Panda. -----------------Decided on 24.07.2013 ------------------PRESENT: THE HONOURABLE MR. JUSTICE M. M. DAS -------------------------------------------------------------------------------------M.M. DAS, J.This appeal has been filed by the State of Orissa and others assailing the judgment dated 12.7.2007 and decree dated 25.7.2007 respectively passed in Money Suit No.97 of 1993-III by the learned Civil Judge (Senior Division), Nayagarh dismissing the said suit filed by the appellants as plaintiffs”
2. It is necessary to trace out the history of the litigation in order to appreciate the facts involved in this appeal, which are as follows:The suit schedule properties were recorded as Nizdakhal lands in 1932 Settlement in the name of Raja of Nayagarh. On 25.12.1947 and 30.12.1947, in a proceeding, the Raja settled the suit properties with late Rani Saubhagyamanjari. On 18.10.1976 and 8.12.1978, notifications under sections 4(1), 6 (1) and 7 of the Land Acquisition Act (for short, ‘the Act’) were issued to acquire the suit lands, upon which Land Acquisition Case Nos. 111 and 112 of 1978 were initiated by the Land Acquisition Officer, who awarded compensation @ Rs. 10,000/- per acre in his award under section 11 of the Act. Since the suit lands were recorded in the name of Rani Saubhagyamanjari Devi, the amount of compensation was received by her with protest for which two references were made under section 18 of the Act, being M.J.C. Nos. 26 and 27 of 1982. The references were answered by the referral court against which the State-appellants preferred F.A. Nos. 151 and 163 of 1987 before this Court. This Court, while deciding F.A. No.151 of 1987, held thus:“In the background, it is to be considered whether claimant had any interest on the land. L.A. Collector had treated the claimant to be the owner of the land acquired and offered her compensation. It is No.open to him No.to question that claimant had no interest in the land. In case, there would have been contest before him with regard to interest, matter might have been different. Accordingly, we are No.inclined to accept the submission of the learned Advocate General that the claimant is No.3 entitled to any compensation within the scope of the provisions of the Act. For the purpose of this appeal, we shall have to proceed with the appeal treating that claimant is the owner of the land, as accepted by the L.A. Collector. In case, the State Government challenges title of the claimant, it is open to it to approach the appropriate forum for the said purpose”.. F.A. No.163 of 1987 was also allowed in the light of the above judgment. Against the judgment dated 14.3.1990 passed in F.A. No.151 of 1987 by this Court, the State approached the Hon’ble Supreme Court in SLP (Civil) No.11932 of 1990, which was ultimately dismissed.
3. Thereafter, the appellants filed a Suit, being M.S. No.97 of 1993-III with the following prayers:“(a) Pass a decree to the effect that the plaintiffs, being the owners-in-possession since 1948, the payment of compensation amount detailed to late Rani Soubhagya Manjari Devi, was a wrong payment and the defendants are liable to refund the scheduled amount and decree may direct the defendants to pay the same within the time specified by the Court, failing which, the plaintiffs are entitled to realize the same through the process of the Court; (b) Cost of the suit may be decreed against the defendants; (c) The plaintiffs may be given such other reliefs to which they may be entitled to under the law and the circumstances of the cases”.. By order dated 8.2.2006 passed by the learned trial court on an application for amendment of the plaint, the plaint was drastically amended. The prayer portion of the plaint was amended and the prayers made in the amended plaint are as follows:- 4 “(a) Pass a decree that the defendants are liable to refund the schedule amount to the plaintiffs within the time specified by the Court; (b) Costs of the suit may be decreed against the defendants; (d) The plaintiffs may be given such other reliefs to which they may be entitled to under the law and the circumstances of the cases”..
4. merger of The plaintiffs have pleaded in the plaint that when State was completed on 1.1.1948 vide notification dated 23.12.1947 published by the Government of India, by virtue of the said notification, the properties described in the schedule of the plaint of the Nayagarh State became the properties of the State of Orissa. On 14.12.1947, an agreement was executed between the GoverNo.General of India and the Ruling Chief, i.e., Raja of Nayagarh that the Raja shall be entitled to full ownership, use and enjoyment of all private properties belonging to him on the said date of agreement. The Raja will furnish an inventory of all immovable properties, securities and cash balance held by him before 01.01.1948 and as such, the Raja furnished an inventory in the year 1947 to the Ministry of State Department, New Delhi. It is specifically pleaded that the agreement dated 14.12.1947, which was in the custody of the Government of India is No.available. The plaintiffs further pleaded in the plaint that as per Clause – 2 of the Memorandum of Inventory, it was clearly mentioned that such properties, which have been converted to private properties 5 by some of the rulers after the date of agreement dated 14.12.1947 and before 1st January, 1948, by unilateral executive action canNo.be deemed to be their private properties. The plaintiffs alleged in the plaint that the then Ruler of Nayagarh State, in derogation of such agreement, settled the scheduled properties with late Rani Soubhagyamanjari Devi of Nayagarh on 25.12.1947 and 30.12.1947 illegally and arbitrarily and, as such, the preparation/correction of ROR/Jamabandi in the name of Rani Saubhagyamanjari Devi of Nayagarh is void and illegal and confers no title in her favour. The further pleading of the plaintiffs is that in spite of the aforesaid illegal recording of the land in the name of the Rani, the property described in the Schedule – A of the plaint was transferred to the Agriculture Department on 01.06.1948 whereon District Agricultural Office and other ancillary offices are functioning and, as such, the State Government is in complete and full possession of the whole of the said properties. Therefore, neither the defendants No.their predecessors-in-interest have ever exercised any act of possession or ownership but demanded compensation illegally by taking advantage of illegal record, for which the State authority, under bona fide mistake, acquired the said land by initiating proceeding and issuing appropriate notification under the Act. The plaintiffs have specifically admitted in the paint that by virtue of the said land acquisition proceeding, which was initiated 6 by mistake, the compensation amount was paid to the Rani, who received it under protest, for which a reference under Section 18 of the Act was made to the civil court, Nayagarh, which was registered as M.J.C. No.26/82 in respect of mouza- Nayagarh and M.J.C. No.27/82 in respect of other Mouza. Accordingly, both the M.J.Cs. were disposed of enhancing the compensation amount awarded in land acquisition proceedings and thereafter, the State – appellants preferred First Appeal No.151/1987 and 163/1987 before this Hon’ble Court. Both the First Appeals were heard analogously and disposed of on 14.03.1990. It is specifically admitted by the plaintiffs that during pendency of the aforesaid First Appeal, the State Government raised the question that the properties did No.belong to the claimant – Rani, who was No.in possession of the properties, but this Court did No.go into the question raised by the State in view of the scope of the appeal. Therefore, the learned Advocate General gave opinion in 1991 vide Ext.11 to file a suit for recovery of compensation amount from the late Rani Saubhagyamanjari Devi. Hence, the suit was filed in the year 1993 on the ground that the L.A. Proceeding in respect of the said properties was an act without jurisdiction and invalid in the eye of law and the money paid to late Rani being public money and paid under bona fide mistake, the plaintiffs are entitled to recover the same 7 from the defendants, who are the successors-in-interest of the late Rani. Though the plaintiffs originally prayed for a decree to declare that they are owner in possession of the scheduled property since 1995 and the compensation amount to Rani was a wrong payment and the defendants are liable to refund the same, subsequently, the plaintiffs have deleted such reliefs by simply praying for recovery of the schedule amount of Rs.4, 80,084. 29 paise.
5. The defendants – respondents, in their written statement, pleaded that the suit is No.maintainable being barred by limitation and the plaintiffs are estopped from saying that Rani Saubhagyamanjari Devi was No.the owner of the schedule property since the said question has been decided at various forums/stages that Rani is the owner of the schedule properties till acquisition of the land in the year 1976 inasmuch as land revenue has been paid regularly to the Government and the compensation amount has also been paid after making full enquiry by the concerned authority in the land acquisition proceeding, in which due proclamation was issued inviting objection admitting that advance possession of the suit land was taken on 01.06.1948 with consent of the Rani admitting ownership and possession of the Rani. The respondents have specifically denied in paragraphs – 2 & 3 of the written statement about any execution of an agreement 8 dated 15.12.1947 by S. Sultan Ahamed under instruction of Raja Sri Krushna Chandra Singh Mandhata of Nayagarh and the Ruling Chief of Nayagarh was neither a party to the agreement No.he had signed any such agreement. As such, the alleged contents of the agreement have no effect on the action taken by the Ruling Chief of Nayagarh in settling the land with Rani Saubhagyamanjari Devi, which was much prior to the alleged date of agreement dated 15.12.1947. The defendants specifically pleaded that the act of settlement of the land in favour of Rani was an act of the State and such act of the State canNo.be challenged in any court of law and, as such, the assertion of the plaintiffs that such settlement does No.confer any title in favour of Rani is false and fabricated. The defendants specifically relied upon the admission of the plaintiffs about the advance possession of the suit lands given to the Agriculture Department on 01.06.1968 by the Rani and has paid interest from the said date in the land acquisition proceeding on proper enquiry and passing appropriate order pursuant to the notification under Section 4 (1) of L.A. Act published in the year 1976 by Gazette Notification. The defendants have categorically denied that the plaintiffs had/have any cause of action to bring the suit or reason to call upon the defendants for refunding the amount received by the Rani. Accordingly, the defendants pleaded that the settlement and 9 transfer of the property in favour of the Rani was valid and canNo.be questioned in any court of law, as the said settlement of land was an act of the State by the Ruling Chief of Nayagarh. Apart from the aforesaid pleading, the defendants have specifically challenged the introduction of averments made in paragraph – 4 of the paint on the ground of admission made in the original plaint that the suit property was a farm and the possession thereof was taken from the Rani on 01.06.1948 and there from the State is in possession of the property and No.prior to 01.06.1948. The defendants specifically pleaded that in view of aforesaid admission of the plaintiffs, No.they are stopped from raising any question in respect of the properties with regard to title of the Rani. The defendants stated that since there was no cause of action, which arose on 10.10.1992 as stated in the plaint, to file the suit against the payment of compensation, which was paid to the Rani in the Land Acquisition Proceeding, the suit is liable to be dismissed on ground of limitation alone.
6. The learned trial court, considering the pleading of the parties, framed as many as fifteen issues for determination, which runs as follows :(I) Is the suit legally maintainable ?. (II) Whether the plaintiffs have any cause of action to bring the suit ?. 10 (III) Whether the plaintiffs are stopped from challenging the ownership of rights of late Saubhagyamanjari Devi, mother of the defendant No.1 for the suit lands ?. (IV) Whether the suit is barred by law of limitation ?. (V) Whether the defendants are liable to return the suit amount ?. (VI) Whether any Sultan Ahmed was the Legal Advisor of Nayagarh State and whether the Ruler of Nayagarh instructed him to enter into an alleged agreement dated 15.12.1947 ?. (VII) Whether orders passed by the Ruling Chief of Nayagarh, being the Act of the State can be challenged in this suit ?. (VIII) Whether in the present suit, any declaration can be given as claimed ?. (IX) To what relief ?. Additional Issues (X) Whether the Raja of Nayagarh entered into any agreement with the GoverNo.General of India ?. (XI) Whether the Raja of Nayagarh furnished inventory of the private property in 1947 ?. an 11 (XII) Whether any memorandum was prepared on the inventors furnished by the Rulers of Princely States ?. (XIII) Whether properties Saubhagyaanjari settled in favour Devi on of Rani 25.12.1947 and 30.12.1947 is valid and legal ?. (XIV) Whether for efficient management, the property was transferred to the Agricultural Department on 01.06.1948 ?. (XV) Whether the State Government was No.the owner in possession of the properties prior to 1.06.1948 ?.
7. In order to substantiate the case, the plaintiffs have examined as many as four witnesses, such as, P.W.1- MaNo.Kumar Jena, the then Junior Clerk of the Land Acquisition Officer, P.W.2 – Gadadhar Subudhi, Clerk of Land Acquisition Officer, Nayagarh, P.W.3 – Bidyadhar Acharya, Additional Tahasildar, Nayagarh and P.W.4 – Sudhansu Kumar Panda, who are the officers of the State whereas, the respondent No.2 examined himself on behalf of all the defendants as D.W.1 in order to establish the case of the defendants. Both the parties have exhibited series of documents for the purpose of their cases”
8. The learned trial court, considering the evidence of the parties, dismissed the suit on contest against the plaintiffs by coming to the following findings:(a) The settlement of the suit lands in favour of Rani by Raja of Nayagarh was valid, legal and binding, (b) The initiation of Land Acquisition proceeding under the notification to acquire the lands of the subjects by the State and awarding compensation in favour of the affected persons whose lands were acquired and subsequently filing the suit for recovery of the compensation from the awardee, certainly estopped the State from challenging the right and ownership of the persons whose lands the State has already acquired after due enquiry and verification of the documents of the ownership. (c) The agreement dated 14/15.12.1947 having No.been produced or proved by the plaintiff wherefrom the conditions of the agreement could have been ascertained, a mere filing of Ext. 6, the memorandum and Ext. 4, the inventory, which allegedly emanated from the terms and conditions agreed upon in the 13 so-called agreement dated 14/15.12.1947, which has remained un-proved; the Court is hesitant to give a finding that consequent to the agreement dated 14/15.12.1947 entered into between the Raja of Nayagarh and the GoverNo.General of India, the Ext. 6 was published and the memorandum of inventory of private property of the Ruler was published. (d) From the averments made by the defendants in their written statement and the documents like Exts. B, C, D, E, G and H and the documents Exts. 10 and 10/a filed by the plaintiffs, it is clearly seen that for establishing a Government Agricultural Farm at Nayagarh, the suit lands were acquired by the plaintiffs from Rani and for the purpose, advance possession was taken from 1.6.1948. Hence, there can be no hesitation on the part of the court to give a finding that for requirement of the plaintiffs for establishment of a farm by the Agricultural Department, the suit lands were acquired by the plaintiffs from the Rani of Nayagarh, i.e., Saubhagyamanjari Devi on 1.6.1948 and the 14 State Government was No.the owner in possession of the suit properties.
9. With regard to the question of limitation, the learned trial court returned the findings in paragraph – 27 of the judgment, which are as follows:“27. Having gone into the submissions raised and advanced on the issues, I find that the fate of the relief in the suit solely depends on the fact of a declaration of the title in respect to the suit properties. It is also found that there is no prayer for any such declaration and the court even if goes to give such a finding though No.prayed for; the filing of the suit by the plaintiffs squarely hit under the provisions of Limitation Act. Hence, when the bringing of the suit by the plaintiffs is barred by the provisions of law, whether incidental relief, the plaintiffs would have been entitled to, also is to be answered negatively. Because, there is various causes of action advanced by the plaintiff and the last cause of action pleaded by the plaintiff is a vague plea, as because, the cause of action is a bundle of facts, which led a party to file a suit. In the present suit, as discussed earlier the cause of action dates back to the year 1948/49 or 1979 and the plaintiffs though had made a prayer for a declaration basing on Ext. 11 in apprehending the failure of the suit, have amended the prayer subsequently only to give rise to a valid cause of action. But, in simply filing a suit for recovery of compensation by the State and in resorting to the Ext. 11, the plaintiffs have intentionally overlooked that such a relief dates back to the year 1979 at best which has also No.been reached to a finality due to the pendency of the cases being remanded by the Hon’ble Court as pleaded. Hence, the raising of the plea that due to bona fide mistake the plaintiffs have paid compensation to the defendants and acquiescing to the orders of a competent authority in a legal proceeding, i.e., L.A. proceedings; the subsequent filing of this suit to enforce the right mistakenly or erroneously exercised, does No.clad the plaintiffs, the attire of a valid cause of action and claim. Because, it is the maxim of law that “In Pari delicto potior est conditio defendenties”. that is “ A person who himself has committed wrong canNo.be permitted to enforce a right which resulted due to his own action”.. Also because in the present suit, the plaintiffs have fought at 15 different stages and at none of the stages, they have challenged the ownership of the Rani of Nayagarh and rather have remained contended with the Status of the Rani by No.challenging or correcting the Record of Rights even though those lands have been acquired by the State. Hence, for the legal bars as discussed, the answer of the issues by the court will be negative against the plaintiffs. This observation of mine also leads to a conclusion that, the suit is filed on an invalid cause of action for which too, the suit is No.at all maintainable. Therefore, while answering the issues involved in the present finding, I also hold that all the five issues are to be answered negatively.”
10. Before this Court, the learned Advocate General advanced various arguments on the question of right, title and interest of the State over the suit properties and submitted that since the notifications under the Land Acquisition Act were issued by mistake and the awarded amount was paid to the Rani by mistake, the State has a right to recover the said amount.
11. Mr. Kanungo, learned counsel for the respondents, on the contrary, submitted that the learned trail court on a thread bare discussion of all the materials produced before him has rightly arrived at the findings that the suit is based on a mistaken cause of action and is also barred by time.
12. On considering the rival submissions, this Court feels it appropriate that the question with regard to the limitation in filing the suit is vital, on which the dismissal or the success of the suit depends.
13. As stated earlier, on materials produced, the learned trial court has found that possession of the suit lands was taken by 16 the State on 1.6.1948 and the land acquisition notifications were issued in 1976. It is well known that unless a land belongs to a subject, the State Government for acquiring such land will No.issue a notification under section 4 of the Act, more so, if the property belongs to the State, question of issuing a notification under section 4 of the Act does No.arise. Provisions under the Act clearly show that the Land Acquisition Collector before passing the award under section 11 of the Act has to cause an enquiry with regard to the ownership of the land. Such enquiry was conducted before passing of the award by the Land Acquisition Collector, who is the plaintiff no.3. The learned trial court, therefore, rightly came to the conclusion that the State is estopped from challenging the title of Rani. Further, as concluded by the learned trial court, since possession of the land was taken on 1.6.1948 from Rani, for the purpose of establishing an Agricultural Farm, a suit in the year 1996 could No.have been filed even for declaration of the title of the State over the suit land which is much beyond 30 years. As a matter of fact, the present suit was No.also one for declaration that the State is the owner of the suit properties for which, opportunity was granted by this Court in its earlier judgment passed in the First Appeals preferred by the State against the award passed under section 18 of the Act.
14. Further, assuming that the period of 30 years is the period of limitation for filing the suit by the State – appellants with a 17 prayer for recovery of the amount paid to Rani, from the defendants, it is seen that such claim of the plaintiffs – appellants squarely depends on the question of title over the land acquired, alleged to be by mistake. Since there was no prayer for declaration of such title, and, as a matter of fact, the learned court below rightly has come to the conclusion that Rani was the title holder of the land, from whom, possession was taken on 1.6.1948 as well as it is seen that Rani has been recorded as the tenant and the State collected land revenue for the said lands from her, this Court finds no infirmity in the conclusion of the learned trial court in holding that the suit is barred by law of limitation.
15. In view of the above findings, this Court is of the view that answering the other issues raised in this appeal become academic inasmuch as this Court finds no error in the findings of the learned trial court on the other issues.
16. In the result, the RFA being devoid of merit stands dismissed, but in the circumstances without cost of this appeal. ……………………… M. M. DAS, J.18 Orissa High Court, Cuttack. July 24th ,2013/Biswal