Case: Maguni Charan Dwivedi Vs. State Of Orissa And Another

1. Maguni Charan Dwivedi, the appellant, filed a title suit in the Court of Munsif, Sundargarh against the State of orissa, for declaration of his title and recovery of possession of plot No. 99 meaguring 3.80 acres in khata No. 89 of village Mahulpali claiming it as his "ganju bhogra" land. The suit was decreed on October 14, 1958, in respect of 3.45 acres. The defendant State of orissa, did not file an appeal and the decree became final.Dwivedi applied for its execution. The case was transferred to the court of the Subordinate Judge of Sundargarh. An objection was taken there by the Notified Area Council, Rourkela, respondent No. 2, hereinafter referred to as the Council, under ss. 37 and 38 and order XXI rule 5 8 of the Code of Civil Procedure on the ground that it was in actual physical possession of the land. The objection application was however rejected by the execution court on March 31, 1965. The Council applied for revision or the order of rejection , but its application was dismissed with the observation that the Council might file a regular suit for adjudication of its right if it so desired. No suit was filed by the Council and decree holder Dwivedi filed an application on September S, 1966 for proceeding with the execution of his decree. The Council and the State then made an application under s. 47 of the Code of Civil Procedure stating A that the decree was not executable because the orissa Merged Territories (Villa ge offices Abolition) Act, 1963, hereinafter referred to as the Act, had come into force in the area on April 1, 1966, and the "bhogra land" in question had vested in the State free from all encumbrances. The Subordinate Judge upheld that objection and dismissed the executionDwivedi felt aggrieved, and filed an appeal which was heard by Additional District Judge, Sundargarh, who held by his order dated May 2, 1970 that the decree was executable . He therefore set aside the order of the execution court, and the State of orissa and the Council went up in appeal to the High Court. The High Court held that as thewas not in actual physical possession of the land, the tenure had vested in the State free from all encumbrances C under s. 3 of the Act, the decree was "rendered non est", and the Collector could not settle the land with him under s. S of the Act. It therefore allowed the appeal by its impugned judgment dated November 4, 1974, and ordered that thecould not execute the decree. He applied for and obtained special leave, and has filed the present appeal.

Reasoning: As will appear, there is no force in this argument.Section 3 of the Act expressly provides for the abolition of village offices under the Act, and the consequences of such abolition. We have made a reference to cls. (a) (b) (c) (d) and (f) of that section, and we have no doubt that the consequences stated in the section in regard to the abolition of village offices, the extinction of the incidents of the service tenures, cancellation of the settlements and sanads etc. creating those office, termination of the right to receive any emoluments for the offices, the resumption and vesting of the "bhogra lands" free from all encumbrances ensued "with effect from and on the appointed date" and were not put off until after the settlement provided for in(1) of s. 5 had been made. Section 3 in fact expressly made provision for those consequences and there is no justification for the argument that they remained suspended or were put off until occupancy rights were settled on the persons concerned. As has been stated,(1) of s. S deals with the settlement of such lands, with rights of occupancy, with the holder of the village office or with him and the other persons, if any, referred to in thebut such settlement was required to be made as a result of the consequences referred to in s. 3 and not otherwise. It is therefore futile to contend that the appellant did not suffer from those consequences merely because the "bhogra land" claimed by him had not been settled with rights of occu pancy under(1) of s. 5 because it was the subject matter of the decree which had not beenargument is however untenable because s. 9 was meant to serve quite a different purpose inasmuch as it made provisi on for the delivery of all records maintained by the village officer in respect of the land or village held by him in relation to his office, the rendering of all accounts appertaining to his office in respect of the dues payable by and to him, and the delivery of possession of all abandoned and surrendered holdings etc. The section did not therefore have any bearing on the question of the vesting of the "bhogra land" absolutely in the State Government and the extinction of the right of the village officer to hold it. That had in fact been. expressly provided in those clauses of s. 3 to which reference has been made by us already. As it is, section 9 did not deal with the question of delivery of possession of the "bhogra land" and its provisions could not justify the argument that the village officer was entitled to continue his possession of the "bhogra land" under that section in spite of the fact that the land stood resumed and vested absolutely in the State Government free from all encumbrances under s.will be sufficient for us to say in this connection that whatever might have been the consequences of the rejection of the Councils application under order XXI r. 58 C.P.C. and the failure to institute a suit thereafter, those normal consequences were rendered nugatory by the express provisions of the Act to which reference has been made above. The question of executability of the decree has therefore been rightly decided with reference to the Act.It may be mentioned that in a given case there may be no "bhogra land" to be settled with a village officer, or a village officer may feel aggrieved on the ground that the Act provides for the acquisition of property by the State, but we find that provision has been made in the Act for the payment of solatium or compensation under ss. 8 and 10 in such cases and it cannot be said that they have been left without a remedy.6. For the reason s mentioned above, we find no force in the arguments which have been advanced on behalf of the appellant. It however appears to us that there is justification for the other argument of Mr. Pathak that there was really no occasion f or the High Court to express the view that the appellant "had no possession of the land" so as to claim its settlement under s. 5(1) of the Act, and that the Collector could not settle the land with him. As is obvious, that was clearly a matter for the authorities concerned to examine and decide under s. 5 and it was, at any rate, outside the purview of the question relating to the executability of the decree which was the subject matter of the appeal in the High Court.