A.S. Naidu, J.
1. Lisin the these two First Appeals commenced as long back as in the year 1969. These two First Appeals are also pending since last more than two decades. We felt that any more delay in disposal of the Appeals would virtually cause denial of justice. The Appeals were taken up for hearing in spite of some preliminary objections and are heard at length. As both the First Appeals involve common facts and are out of one judgment, the same are disposed of by this common judgment.
2. Bereft of all necessary details, the short facts which are necessary for effectual adjudication of the two Appeals are stated herein below :
Admittedly, the lands in dispute appertaining to Survey Nos. 123/1, 121/4 and 78/2 under Patta No. 148, situated at village Adduapada in Badakhemindi Tahasil were part and parcel of the Intermediary estate of Sri Ramachandra Deo, Ex-Intermediary of Badakhemindi. On promulgation of the Orissa Estates Abolition Act (hereinafter referred to as 'the OEA Act') the Estate of Badakhemindi vested with the State Government free from all encumbrances with effect from June 1st, 1953. After the lands were settled in favour of the Ex-Intermediary, he alienated the same in favour of 27 persons by means of a registered sale deed. In the year 1968, inter se dispute for possession over the disputed lands cropped up between the parties, which culminated in initiation of a proceeding under Section 145, Cr. P.C. registered as Misc. Case No. 259 of 1968 in the Court of the Sub-Divisional Magistrate, Berhampur. The said case was partly allowed in favour of the members of First party and partly in favour of the members of Second party, inasmuch as the members of the First party were held to be in possession of two plots and the members of the Second party were held to be in possession in respect of three plots. Being aggrieved by the said order, the members of the First party, (27 in number), filed Title Suit No. 39 of 1969 in the Court of the then Subordinate Judge, Berhampur as plaintiffs against 126 defendants who were members of the Second party, inter alia, praying for declaration of their title in respect of the suit scheduled lands for recovery of possession and for realisation of a sum of Rs. 2,700/- lying in deposit in the Court of the Magistrate, First Class, Berhampur as well as for other ancillary reliefs.
The members of the second party (numbering 126) who are defendants in T.S. No. 39 of the 1969 also filed a separate suit, which was registered as T.S.No. 43 Of 1969 as plaintiffs impleading 27 First party members (who are plaintiffs in T.S. No. 39 of 1969) as defendants, inter alia, praying for declaration of their right, title and interest over the entire suit scheduled properties and for other ancillary reliefs.
The plaintiffs in T.S. No. 39 of 1969 averred in their plaint that the lands in dispute, comprising of cultivable lands and Mango topes, were private or 'Hetta' lands of the Ex-Intermediary of Badakhemindi, and were in his Khas possession. In the settlement records also the said lands stood recorded as the private lands of Rama Chandra Deo, the Ex-Intermediary. After promulgation of the O. E. A. Act in 1953, the concerned authorities after observing all paraphernalia settled the lands in favour of the Ex-Intermediary. For meeting certain legal expenses, the Ex- Intermediary Sri Rama Chandra Deo, alienated the disputed lands along with some other lands appertaining to Survey Nos. 122/4 and 48/4 (which are not subject matter of the suit) to the 26 plaintiffs for a consideration of Rs. 15,000/- under a registered sale deed dated August 13, 1968 and delivered possession of the same. It is averred that die plaintiffs from the date of their purchase, were in cultivating possession of the land and were enjoying the same exclusively as rightful owners thereof and exercised various rights. The defendants, Ujala Rout and four others wanted to purchase the lands from Ramachandra Deo. Ex-Intermediary, but as the said Ex-Intermediary did not agree to sell the lands to them and sold the same to plaintiffs, they became enraged and out of frustration, instigated other defendants (villagers) and trespassed upon the suit land with an intention to harass and cause loss to the plaintiffs who were bona fide purchasers for value and were in possession. The plaintiffs, had not other way but to initiate a proceeding under Section 145, Cr. P.C. After disposal of the said proceeding, they filed the aforesaid suit.
3. All the defendants filed a joint written statement, repudiating the averments made in each paragraph of the plaint. It is averred that the suit lands were never private or 'Hetta' lands of the Ex- Intermediary, but the same were the rayati lands of the village. The Ex-Jamindar being an influential person, managed to get the lands recorded as his private lands in the Record of Rights prepared by the Settlement authorities. After vesting of the estate under the provisions of the O.E.A. Act, the O.E.A. Collector ordered settlement of the lands in favour of Ex-Intermediary, on the basis of the Record of Rights, presuming the lands to be private lands. The said settlement did not confer any right, as the O.E.A. Collector was incapable of converting the rayati lands into private lands and further, the essential paraphernalias, like, inviting objections, conducting local enquiry, etc. were not sacrosanctly followed. The defendants were all along in de facto possession of the lands as Rayats and were contributing the usufructs of the said lands for improvement of the U.P. School. It is averred that the defendants being the occupancy Rayats in possession for a continuous and uninterrupted period, acquired valid right and perfected their title and as such, the suit is not maintainable and is liable to be dismissed.
4. At the cost of repetition, it is once again reiterated that the defendants of T.S. No. 39 of 1969 are the plaintiffs of T.S. No. 43 of 1969 and the averments made in their plaint are virtually repetition of the averments made in written statement filed by them in T.S. No. 39 of 1969. Similarly, the plaintiffs of T.S. No. 39 of 1969 are the defendants of T.S. No. 43 of 1969 and their written statement is in the same light as their plaint in T. S. No. 39 of 1969.
5. On the basis of the inter se pleadings, the trial Court framed as many as 9 issue and heard both the suits analogously. The plaintiffs of T.S. No. 39 of 1969 to substantiate their case, examined four witnesses and exhibited four documents. The plaintiffs of T.S. No. 43 of 1969, who are defendants in T. S. No. 39 of 1969 examined only two witnesses and exhibited six documents.
6. The trial Court after discussion of the inter se pleadings and after going through the records, and after hearing the counsel for the parties, by the impugned judgment arrived at the following findings :
(a) The suit lands were private lands of Ex-landlord and cannot be held to be rayati lands as defined under Section 3(16) of the Madras Estate Land Act, 1908.
(b) Declaration made under Section 144. Cr.P.C. relates to possession of the parties two months prior to institution of the proceeding. From the documents and other materials, it is apparent that 'Hetta' lands were enjoyed by the Ex-landlord and the same were sold to the plaintiffs. The plaintiffs were in actual possession of the lands and the defendants forcibly trespassed over a portion, for which the proceeding under Section 144. Cr.P.C. was initiated.
(c) The defendants never possessed the lands on any right whatsoever.
(d) Clerical mistakes in the order sheet of the proceeding initiated under the provisions of the Orissa Estate Abolition Act no way affects the merits of the case and the Ex-landlord's right and title have been confirmed by the Collector on the strength of amending provisions of the O.E.A. Act.
(e) The plaintiffs acquired title under the registered sale deed executed by the Ex-intermediary.
(f) The defendants are mere trespassers and they are liable to be evicted from the land.
7. On the basis of the aforesaid finding, the trial Court, by a common judgment decreed T.S. No. 39 of 1969 and dismissed T.S. No. 43 of 1969. It is pertinent to mention here that some of the defendants expired at the inception of the suit. It is found that in the decree, the names of the defendants who had expired during the pendency of the suit did not find place. Thus, no decree has been passed against any dead person.
8. The appellants filed First Appeal No. 33 of the 1972 in this Court challenging the judgment and decree passed in T.S. No. 39 of 1969. However, they filed Title Appeal No. 19 of 1972 in the Court, of the District Judge, Ganjam challenging the judgment and decree passed in T. S. No. 43 of 1969, though .both the suits were disposed of by a common judgment. Subsequently, in view of the pendency of F.A. No. 33 of 1972 in this Court, Title Appeal No. 19 of 1972 was directed to be transferred from the Court of the District Judge, Ganjam to this Court and the same was registered as First Appeal No. 37 of 1973.
9. Mr. R. K. Mohapatra, learned Senior Advocate and Mr. Budhadev Routray, learned counsel for the appellants at the outset contended that both the First Appeals had abated as some of the defendants who expired during the pendency of the suit were not substituted. The suit being one for joint tort-feasor, abatement against even one defendant would amount to abatement of the entire suit.
At the other hand, the learned counsel for the respondents submitted that neither the suit nor the appeal has abated. The learned counsel also supported the trial Court judgment and submitted that no interference by this Court is called for.
10. After hearing learned counsel for the appellants, we scrutinised the records of the trial Court. The fact that some of the defendants have expired during the pendency of the suit, was brought to the notice of the trial Court as would be evident from the order No. 53 dated 29.6.1971 passed in T.S. No. 39 of 1969. Subsequent orders reveal that the names of the aforesaid defendants were exonerated from the record. The legal representatives were also not brought on record as additional plaintiffs in T.S. No. 43 of 1969. Apart from the said fact, in view of the inter se pleadings, we are satisfied that this case is squarely covered under Order 22 Rule 4 of the Code of Civil Procedure. The plaintiffs in T. S. No. 39 of 1969 are defendants in T.S. No. 43 of 1969 and similarly, the plaintiffs of T.S. No. 43 of 1969 are defendants in T. S. No. 39 of 1969. Both the suits were tried analogously and all the parties were before the Court. In both the cases joint written statement was filed by all the defendants. Thus, there is no question of prejudice being caused to any of the parties. Even otherwise, in view of common defence of all the defendants, the principle of substantive representation can also be extended to the present case. Further, it is noted that no decree has been passed against the defendants who expired during the pendency of the suit. Thus, neither there is any chance of conflicting decree nor the decree as passed would become ineffective in absence of substitution. The decision relied upon by the learned counsel for the appellants in the case of Sukadev Prusty v. Gokhei Prusty and Ors., 61 (1986), C.L.T. 453, was a suit for partition and has no application to the facts of the present case. Even in the said decision, it has been held that Order 22, Rule 4, C.P.C. gives discretion to the Court to exempt the plaintiffs from the necessity of substituting the legal representatives of the deceased defendants who failed to appear and contest the suit at the hearing.
A cumulative reading of the written statement in T.S. No. 39 of 1969 and plaint in T.S. No. 43 of 1969 clearly reveals that the suit was prosecuted by the defendants not for their own interest, but for the interest of the village school.
Further, the defendants in T. S. No. 39 of 1969 in paragraphs- 9 of the written statement, have pleaded as follows :
'That the parties are the resident of Addupada which is a big village. The village has an U.P.School and the defendants being in de facto possession of the suit land, were contributing profits of the suit land for improvement of the school. Besides the suit land, the defendants are also in cultivable possession of some Government lands, the profits of which are also used for the said purpose.'
Thus, it would be evident that the claim of the defendants- appellants on the suit land is in the representative capacity of the villagers of village Addupada and not in their individual capacity. In view of the nature of the pleadings, in both the suits, we are also satisfied that death of some of the defendants who are plaintiffs in the analogous suit and are contesting on common pleadings more or less in representative capacity, would not abate the suit. Hence, there is no force in the submission made by Mr. Routray that on the death of any of the defendants, the entire suit shall abate. Further, within the span of last thirty years, many of the parties have expired. It is revealed from the order sheet that most of them have been substituted except two respondents and one appellant i.e. Respondent No. 22 (b) and 66 and Appellant No. 34. In view of the discussions made above, non-substitution of these parties shall also not abate the appeals.
We, therefore, have no hesitation to hold that neither the suits nor appeals abate have virtue of death of the defendants which occurred during the pendency of the suit or parties during the pendency of these First Appeals and it is a fit case in which the discretion under Order 22, Rule 4, C.P.C. should be exercised and the appeals should be heard and disposed of on merits. The preliminary objection raised is answered accordingly.
11. The next contention of the learned counsel for the appellants is that the status of the disputed lands being 'ryoti' under the provisions of the O.E.A. Act, the same do not vest with the State and the rights of the tenants is protected under Section 8(1) of the said Act. Thus, the settlement of the lands in favour of the Ex-intermediary treating the same to be private lands, is contrary to law and the order of settlement being ab initio void, the trial Court should have ignored the same. The learned counsel for the appellants, to substantiate the said contention, relied upon the definition of 'Ryoti lands' in Section 3(16) of the Madras Estates Land Act, 1908 which reads as follows :
'Section 3 (16) : Ryoti land.
The definition of ryoti land includes every land that can be cultivated other than those specially excepted under the section. The excepted items are :
(1) Private lands;
(2) beds and bunds of tanks and of supply, drainage, surplus or irrigation channels;
(3) communal lands such as threshing-floor, cattle-stands, village-sites and other lands set apart for the common use of the villagers;
(4) Service inams pre-settlement and post-settlement provided that in the case of post-settlement service inams they are wholly rent-free.
In addition to the items excepted above, there are other exceptions.
(2) They are :
(1) waste lands let out for pasturage of cattle:
(2) land reserved bonafideby a landholder for raising a garden or tope or for forest.
Private lands are defined under Section 3 (1).'
12. Admittedly, the suit lands are mango topes or Padia lands. A portion of the land has been reclaimed and cultivated. Before vesting, the Ex-intermediary claims to be in exclusive possession and enjoying the fruits of the mango tope. Section 6 (2) of the Madras Estates Land Act specifically stipulates that the lands reserved bona fide by the landlord for raising garden or tope or forest, shall not itself confer upon the person permitted to occupy, a permanent, right of occupancy nor shall such land, by reason only of such temporary cultivation become a Ryoti land.
In the present case, the defendants have totally failed to adduce an iota of evidence, either oral or documentary, to prove that at. any time, before the Estate vested with the State Government, they possessed the lands or cultivated the same. At the other hand, the evidence of D.W. 1 clearly reveals that, the defendants have forcibly occupied the land without enquiring about the ownership. P.W.3, the Revenue Inspector of the area has deposed that the lands are situated near his office and the same were possessed by Raja and that it was never cultivated by Rayats. The Raja was enjoying the mango fruits prior to the vesting. The yidence of P.W.4, another R.I. who conducted inquiry and submitied report to the Collector, is that, the lands were 'Khas' lands of the Raja. It further reveals from the pleadings of both the parties that the disputed lands stood recorded as private lands of the .Ex- intermediary prior to vesting. In consonance with Section 13 of the Orissa Survey and Settlement Act, 1958, the entries in the settlement records shall be presumed to be correct. This proposition of law also finds support from a decision of this Court in the case of Kishore Chandra Das and Anr. v. Gouranga Das and Ors., 62 (1986) CLT 322 = 1986 (I) OLR 393.
It is evident from the pleadings and evidence on record that the entry made in the Record of Rights, recording the disputed lands to be private lands of Ex-intermediary was made prior to vesting of the Estate. The said recording has not been challenged at any point of time. Thus, the said entry shall be presumed to be correct.
13. Section 3(15) of the Madras Estates Land Act defines 'Ryot' as follows :
'Ryot' means a person who holds for the purpose of agriculture ryoti land in an estate on condition of paying to the landholder the rent which is legally due upon it.'
Not a single rent receipt nor a scrap of paper has been produced by the defendants-appellants indicating their induction as tenants or payment of rent to the Ex-landholder. A cumulative assessment of the evidence, both oral and documentary, leads to an irresistible conclusion that the Appellants were not Rayats in respect of the disputed lands nor did they cultivate the same or pay any rent to the Ex-Jamindar. We, therefore, have no hesitation to agree with the finding of the trial Court to the effect that the suit lands were the private lands and that the Ex-intermediary was in Khas possession of the same before vesting. The said finding is, accordingly, confirmed.
14. The learned counsel for the appellants next contended that the settlement made in favour of the Ex-intermediary after vesting suffers from the vice of non-observance of mandatory requirements and the order passed by the O.E.A. Collector in C.P. No. 9 of 1969 is illegal, contrary to law and did not confer any right upon the Ex-intermediary. It is further contended that publication of notice inviting objection, which is mandatorily required under the O.E.A. Act, having not been made in accordance with Rules, the order passed by the O.E.A. authority settling the lands in favour of the Ex-intermediary did not confer any right on him, as has been held in the case of Krupasindhu Mishra (and after him) Biranchi Prasan Misra and Anr. v. Gobinda Chandra Misra and Ors., 50 (1980) CUT 393 (F.B.).
15. Admittedly, the estate of Badakhemendi, where the disputed lands are situated, vested with the State Government free from all encumbrances 'by virtue of a notification issued under Section 3 of the O.E.A. Act with effect from 1.6.1953. The plaintiffs have specifically pleaded that immediately after vesting of the estate of Badakhemendi, the Collector, in consonance with Section 7 (2) of the O.E.A. Act, 1951, conducted an inquiry through the Revenue Inspector. After receiving inquiry report, as no dispute was raised by any person for settlement of the lands, settled the same with the Ex-intermediary. In the year 1956, by Amending Act 15 of 1956, Sub-section (2) of Section 7 was repealed and Section 8-A and Section 9 (2) were introduced. For the suke of brevity and better understanding, Section 9 (2) of the O.E.A. Act is quoted herein below :
'9 (2) : All claims referred to in Sub-sections (1) and (2) of Section 8-A allowed by the Collector prior to the date of commencement of the Orissa Estates Abolition (Amendment) Act, 1956 (Orissa Act 15 of 1956) shall, as soon as may be. after the said date, be notified in the prescribed manner by the Collector. Any objection received within a period of three months from the date of the said notification shall, after the parties are given an opportunity of being heard, be duly considered by the Collector who shall pass such order as he thinks fit and proper and the order so made shall be final.'
The only requirement prior to passing of the order of settlement by the Collector, as would be evident from Section 9(2) is 'issuing notice in the prescribed manner.' The word 'prescribed' is defined in Section 2 (m) of the O.E.A. Act. which reads as follows :
' Prescribed' means prescribed by Rules made under this Act.'
Rule 8-A of the Rules stipulates the manner of notification under Section 9 (2), which reads as follows :
'Rule 8-A : Manner of notification under Section 9(2) All claims referred to in Sub-sections (1) and (2) of Section 8-A allowed by the Collector prior to the date of commencement of the Orissa Estates Abolition (Amendment) Act. 1956 (Orissa Act XV of 1956), shall be drawn up by him in Form 'J' of the Schedule and public notice thereof shall be given by beat of drum in the appropriate locality and by pasting of the said form at such conspicuous places as he deems fit.'
16. In the present case, after vesting of the Estate, as no dispute arose, in consonance with Sub-section (2) of Section 7 of the 1956 O.E.A. Act, the Collector settled the lands with the Ex-intermediary. At the cost of repetition, it is reiterated that in the settlement records also the suit lands stood recorded as private lands of Ex-intermediary. After promulgation of Act 15 of 1956, in consonance with the amended provisions, the Collector suo motu initiated a proceeding (C.P. No. 9 of 1959). The original record of the said proceeding was called for and are available. The certified copy of the orders has been marked as Ext. 1. The order dated 28.7.1959 passed in C.P. No. 9 of 1959 reads as follows :
'28.7.59 - The claim of the Ex-Zamindar. Badakhemindi Sri Rama Chandra Dev for Khas possession lands of Addupada village in Badakhemindi Ex-estate was allowed by the Collector of Ganjam in his Ref. J. 3 No. 5149/53 (1) dated 27.7.54 under Section of the O.E.A. (Amendment) Act of 1956, Orissa Act 15, 1956. Publish the claim in the official Gazette under Section 9 (2) of the Act in form J. Put up on 15.8.59.'
On the next date, i.e, on 29.7.59, notice in 'Form J' was sent for publication in consonance with Rule 8-A quoted supra. The 'Form J' as well as the service return are available in the original case record. Certified copy of the same has also been marked as Ext. I/a. The service report dated 7.12.59 reads as follows :
'The notice has been duly served and published in the village by beat of Tom-Tom.'
The Oriya proclamation made on 5.12.59 reveals that a copy of the notice was displayed (hanged) in the middle of the village at a conspicuous place and publication was made by beat of drums.. It further reveals that after the prescribed period, as no objection was filed by any of the persons, previous settlement made ir} favour of Sri Ramachandra Deo, the Ex-intermediary, was confirmed by the O.E.A. Collector. The facts narrated above clearly reveals that the notice as contemplated in the decision of Krupasindhu [supra] was promulgated in the present case and there is no procedural defect.
The learned counsel for the appellants also relied upon the case of Sri Krishna Chandra Gajapati Narayan Deo v. Atreyaparupu Apparao and Anr., 33 (1967) CUT 155. The said case is completely different in facts inasmuch as the plaintiff of the said suit was found to be in possession of the holding as tenant under the intermediary before the date of vesting and was deemed to be tenant under the State Government from the date of vesting. That being not the situation in the present case, the said decision is not applicable.
17. The narrations made above clearly reveal that the Collector has sacrosanctly followed the procedure prescribed under Section 9(2) and Rule 8-A of the Act 15 of 1956 and the O.E.A. Rules respectively, and the settlement made in favour of Sri Ramachandra Deo, the Ex-intermediary under the O.E.A. Act. by the O.E.A. Collector was strictly in consonance with law. Further, the said settlement was made as long back as on 28.7.1959 (Ext. 1) and has not been disputed at any stage thereby attained finality.
The belated claim raised on behalf of the appellants that notice as mandatorily required was not published also cannot be accepted on the further ground that one of the defendants, i.e, Kora Pradhan, was the signatory to the notice published on 5.12.59, whose signature,has been exhibited as Ext. 5/a.
18. In course of the arguments, a petition for adducing additional evidence was filed under Order 41, Rule 27 enclosing certified copy of the order sheet of a case registered as C.P. No. 9 of 1959, and it was submitted that the certified copy of C.P. No. 9 of 1959, which is exhibited in Court as Ext. 1, is not genuine and is a created document. We are unable to accept such a plea at this belated stage inasmuch as the certified copy of the entire order sheet of C.P. No. 9 of 1959 was produced in course of hearing of the suit and has been marked as Ext. 1 and Ext. 1/a on 5.1.1972 without any objection being raised by the defendants and 'waiving formal proof.' Further, First Appeal has been filed in the year 1972 and no step has been taken at any time for adducing additional evidence during all these years. After lapse of nearly 30 years, the appellants woke up from slumber and filed a petition for adducing additional evidence in course of hearing. After going through the said petition and perusing the original record of C.P. No. 9 of 1959, which is available with the lower Court records, and hearing the learned counsel, we find no justifiable reason whatsoever to allow the said petition, which is accordingly rejected.
19. In view of the discussions made above, we are satisfied that after observing all formalities, the O.E.A. Collector settled the disputed lands in favour of Sri Ramachandra Dev, the Ex- intermediary, under the provisions of the O.E.A. Act, and by virtue of the said order of settlement, fresh right, title and interest were created in favour of the Ex-intermediary after vesting of the estate and he became the absolute owner thereof. We have thus no hesitation to confirm the finding of the trial Court in this respect.
20. The only other point which needs to be considered in the present case is as to which of the parties were in possession of the suit lands and as to whether the appellants perfected their title by prescription. To appreciate this point, being the final Court of facts, we scanned through the pleadings and evidence. The specific case made out by the plaintiffs is, Sri Ramachandra Dev, Ex-landholder, was in Khas possession of the land prior to vesting and the lands stood recorded in his name as private lands in the R.O.R. After vesting, the lands were settled in his name by the O.E.A. Collector after observing all paraphernalia and on being satisfied that the Ex-landlord was in Khas possession. It was only thereafter that the Ex-landlord alienated the properties in favour of the plaintiffs-respondents by means of a registered sale deed dated 13.8.68 (Ext.2) and delivered possession. The plaintiffs possessed the land after purchasing the same, but their possession was disturbed by the defendants-appellants. The defendants, who have filed a joint written statement, have not breathed a word as to 'how' and from 'when' they possessed the suit lands. On the other hand, in paragraph-9 of the written statement, it is specifically stated that the defendants being in de facto possession of the suit lands, were contributing profit for improvement of the school. In paragraph-12 of the written statement, however, in order to assert their possession for more than the stipulated period, a bold averment has been made to the effect that the defendants are the occupancy Rayats of the lands and are in actual possession.
21. The plea of the defendants that they are Rayats is negatived by their own evidence inasmuch as D.W. 1 has clearly deposed in Court that the income of the lands is being spent for the village school and there is a Committee to manage the school. In his cross-examination, the said defence witness has clearly stated as follows :
'We defendants have forcibly occupied the land, reclaimed and constructed huts, xx xx xx. We have not applied for this land after estate abolition.'
The only other witness examined by the defendants is the Head Clerk of Tahsil Office who produced the Demand Register and Collection Register, which indicate collection of water rate from the Grama School in the years 1968, 1969 and 1970. These documents came into existence after the dispute and have no evidencing value.
On the other hand, to prove their possession, the plaintiffs have examined four witnesses, out of whom P. Ws. 3 and 4 are official witnesses being the Revenue Inspectors, who are unconnected with the Us. According to P. Ws. 3 and 4, the Ex-landlord was in possession and was enjoying the fruits from the mango topes. Coupled with this oral evidence on behalf of the plaintiffs, the rent receipts and cess receipts have been-exhibited as Ext. 3/b, certified copy of Bandobasta register as Ext. 3 and Register relating to compulsory water rate as Ext.3/a. All these reveal that, in fact, the plaintiff-respondents were in actual possession of the suit lands.
22. The appellants also relied upon the finding of the Executive Magistrate in the proceeding under Section 145 of the Code of Criminal Procedure in support of their possession. Law is well settled that the possession declared in such a proceeding connotes only two months prior to the said proceeding. In view of the clear and unambiguous statement made by defendant No. 2 in Court that the defendants have forcibly occupied the lands, reclaimed a portion of the same and constructed huts, we have no hesitation to hold that the appellants were not in possession of the lands as Rayats. As stated earlier, not a single document has been produced by the defendants-appellants indicating their induction as Rayat and/or payment of rent, either to the Ex-intermediary or to the State.
23. A cumulative assessment of the entire evidence leads to an irresistible conclusion that prior to vesting, Sri Ramachandra Deo, Ex-landlord was in possession and after purchasing the lands in the year 1968 vide Ext.2, the plaintiffs possessed the lands till the defendants forcibly trespassed over the same. Thus, we have no hesitation to confirm the finding arrived at by the trial Court with regard to the possession of the plaintiff-respondents under Issue Nos. 5 and 6.
24. In view of the discussions made above, we are satisfied that the defendants-appellants have totally failed to substantiate their case and we find no reason to interfere with the findings arrived at by the learned Civil Judge (Senior Division), Berhampur, in T.S. No. 39 of 1969 and T.S. No. 43 of 1969. We, therefore, dismiss both the First Appeals and confirm the findings of the trial Court. Parties to bear their own costs.
P.K. Balasubramanyan, C.J.
I am entirely in agreement with the reasoning and conclusion of my brother.
These appeals could have been heard by a Single Bench as per the Rules governing this Court. But when I found that these appeals are of the years 1972 and 1973 (the suits are of the year 1969), I felt that they must be disposed of finally by this Court at the earliest. Hence, these appeals were withdrawn from the Single Bench and heard finally. Substitution of all the legal representatives was not insisted upon since these suits in reality had been fought as representative actions.
I too dismiss the appeals.