LORD LINGARAJ BIJE, BHUBANESWAR AND ANR.versusSH. NITYANANDA MISHRA AND ORS.

A          LORD LINGARAJ BUE, BHUBANESWAR AND A!\IR.
                                         v.
                   SH. NITY ANANDA MISHRA AND ORS.

                                   MAY 2, 1995

B                  [R.M. SAHAI AND G.T. NANAVATI, JJ.[


          01issa Hindu Religious Endowments Act, 1939:

          01issa Hindu Religious Endowments Act, 1951: Sections 25 and 61!.
c         01issa Estates Abolition Act, 195 l :

           Land-Lease-Death of lessee-Successor-in-interest-Transfer of land
    b7Application filed by tmstee for recove1y of possessio1t-Rejectio,1 of-En-
    forcement of Abolition Act-Application by occupants of land for being
D   treated as occupancy tenants under Abolition Act-Rejection of-Fresh ap-
    plication by tmstee for recovery of possession-Claim of occupancy
    right-Detennination and adjudication by competent authoriry--Direction to
     approach Civil Cowt for approp1iate relief

          The appellant let out his land to D before coming into force of the
E Orissa Hindu Religious Endowlements Act, 1939. After the death of D his
  widow B succeeded to his estate and transferred the land in favour of the
  respondent. The appellants filed an application under Section 68 of the
  Orissa Hindu Religious Endowments Act, 1951 for recovery of possession
  which was allowed. However, the Commissioner set aside this order hold-
F ing that B became the occupancy tenant. An application filed by the
  respondent under Sections 6 and 7 of the Orissa Estates Abolition Act,
  1951 for being treated as occupancy trnants was held not maintainable on
  the ground that they were not intermediaries. Thereafter another applica-
  tion was filed by the appellant for recovery of possession under Section 25
  stating that after the. enforcement of Abolition Act the disputed land was
G settled with the appellant as intermediary and the same was leased out to
  B who alienated it in favour of the respondents in violation of section 19.
  Therefore, the respondents were liable to be ejected. The Commissioner of
  Endowment allowed the application. The High Court quashed the order
  holding that (i) the lease was given in favour of D even before the 1939 Act
H had come into force; and (ii) the order passed in eviction proceedings
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            LORD LINGARAl BJJE "· NITYANAND A MISHRA iSAHAL .1.J        1047

    under section 68 holding that B had ae<1uired occupancy right had become A
    final; the entire proceedings by which the land was settled by B with
    appellant as intermediary was contrary to law. Against the decision of the
    High Court an appeal was preferred before this Court.

            Dismissing the appeal, this Court
                                                                                B
           HELD : Section 25 of the Orissa Hindu Religious Endowments Act,
    1951 permits the trustee to file an application against a person who was
    otherwise in unauthorised occupation. The application filed by the appel-
    lant, therefore, was maintainable. But the respondent was not precluded
    in these proceedings from claiming that he had acquired rights and he was   C
    not in unauthorised occupation. It was also open to him to claim that his
    predecessor had a better title than the appellant, and, therefore, no order
    under Section 25 could have been passed. The right of the respondent and
    his predecessor about the claim of occupancy rights had to be determined
    and adjudicated by some competent authority. It is not possible to shut
    out the respondent only because his application under Sections 6 and 7 D
    was rejected. There was no adjudication merits by the appellate authority.
    The appellant is, therefore, permitted to approach the Civil Court which
    shall decide the dispute between the parties unhindered by any observation
    made in this order or the order passed by the Commissioner in earlier
    proceedings under Section 68 of the Act or the proceedings under Sections' E
    6 and 7 of the Abolition Acl [1049-B, H, 1050-A, DJ

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5256 of
    1995.

         From the Judgment and Order dated 26.8.91 of the Orissa High           F
    Court in O.J.C. No. 166 of 1984.

            Rajinder Sachar and A.K. Panda for the Appellant.

            P.P. Rao and P.N. Misra for the Respondent in No. 1 - 3.
                                                                                G
         R.K. Mahpatra, P.N. Misra, S. Misra, S. Kumar, A.C. Pradhan and
    Ms. Kirti Misra for the Respondent No. 4.

            The Judgment of the Court was delivered by

            R.M. SAHAI, J. This appeal is directed against order passed by the H
    1048                  SUPREME COURT REPORTS                    [1995] 3 S.C.R.

A High Court in exercise of its writ jurisdiction quashing the order passed by
    the Commissioner of Endowments under Section 25 of the Orissa Hindu
    Religious Endowments Act, 1951 {hereinafter referred to as 'the Act').

           Facts in brief are that the land, originally, belonged to Lord Lingaraj,
B the appellant. It was let out, in 1937 before coming into force of the Act
  by the Trust Board, in favour of one Dr. Ramendu Ray. The land was
  agricultural waste land which was reclaimed by Dr. Ray and he continued
  in possession till his death. After his death his widow Bhibhati succeeded
  to the estate and paid rent to the Board. Jn 1970 an application was filed
  on behalf of the appellant under Section 68 of the Act for recovery of
C possession. It was allowed. The order was, however, set aside by the
  Commissioner on 7.5.1971 and it was held that she became occupancy
  tenant. She appears to have transferred the land in dispute in favour of
                                                                                      •
  respondents. They approached the Tahsildar under Sections 6 and 7 of the
  Orissa Estate Abolition Act (referred as 'Abolition Act') for being
D regarded as occupancy tenant. The application was rejected. In further
  appeal it was held that their application was not maintainable as provisions
  of Sections 6 and 7 could be invoked only by a person with whom land has
  been settled as intermediate. The appellant thereafter filed another ap-
  plication under Section 25 of the Act for recovery of the property. It was
  alleged that after the enforcement of Abolition Act, land was settled with
E the intermediary that is, the appellant who leased it out to Bhibhati who
  alienated it in favour of the respondent in contravention of Section 19 of
  the Act, therefore, the respondents were liable to ejectment. The applica-
  tion was allowed. The order was challenged by way of a writ petition in the
  High Conrt. The High Court did not examine the question whether the
p proceedings under Sections 6 and 7 of the Abolition Act were in accord-
  ance with law and whether the procedure provided under Section 8A was
  observed. The High Court felt that although different aspects of the case
  had not been examined and it would have been advisable to remand the
  matter to the Commissioner but the litigation having gone for number of
  years and the claim of the respondent having been firmly established it was
G not necessary to prolong it further. The High Court held that the lease was
  given in favour of Dr. Ray even before the Orissa Hindu Religious Endow-
   ments Act, 1939 had come into force. It was further held that in the earlier
   proceeding for eviction initiated by the appellant under Section 68 of the
   Act it was clearly held that Dr. Ray and after him his widow had acquired
H occupancy tenancy rights and this decision having become final as the
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                LORD LINGARAJ BIJE v. NITYANANDA MISHRA [SAIW, J.]                1049

          appellant did not challenge it the possession of Bhibhati was not un- A
          authorised and she having been an occupancy tenant the entire proceedings
          by which the land was settled with appellant as intermediary was contrary
          to law.

                  Section 25 of the Act permits the trustee to file an application against B
          a person who was otherwise in unauthorised occupation. The application
          filed by the appellant, therefore, was maintainable. But the respondent was
          not precluded in these proceedings from claiming that he had acquired
          rights and he was not in unauthorised occupation. It was also open to him
          to claim that his predecessor had a better title than the appellant and,
          therefore, no order under Section 25 could have been passed. It is not C
          necessary to say anything further as even though the High Court has held
          the earlier order passed by the Commissioner under Section 68 to be res
          judicata and the appellant is claiming that the respondents' predecessor in
          interest lost her right and title once Abolition Act was enforced and the
          property was settled. with the appellant under notification issued in 1974 D
          under Section 7 of the Abolition Act, as the proceedings under Section 25
          of the Act 'for eViction of the respondent are summary in nature. That is
'·I       clear from sub-section (3) of Section 25 which permits an aggrieved party
          to approach the CiVil Court. Sri Sachar, learned senior counsel, however,
          vehemently argued that in View of the proVisions in Abolition Act no suit
           could be filed in the CiVil Court as these matters were covered by Chapter E
           II of the Abolition Act. On the other hand Sri Rao, learned senior counsel
          for'the respondent urged that the remand to the Commissioner would be
           delaying the matter as in View of the proVisions of sub-section (3) of Section
          25 the aggrieved party would still have a remedy to go to Civil Court. He,
          therefore, urged that the litigation haVing gone for quite long it was F
          appropriate and expedient ei.ther to direct the Civil Court to decide the
          dispute or to dismiss the appeal and direct the appellant to approach the
          appropriate court if he was aggrieved by the order.

                We have considered the rival submissions on the question of forum.
          There is undoubtedly difficulty in remanding the matter to the Commis- G
          sioner as he might be faced with an order passed in 1971 in favour of the
          respondent. Further the order passed by the appropriate authorities under
          the Abolition Act may preclude him from entering into the question
          whether the respondent had acquired occupancy rights. But it cannot be
          disputed that the right of the respondent and his predecessor about the H
    1050                  SUPREME COURT REPORTS                   [1995] 3 S.C.R.

A   claim of occupancy rights had to be determined and adjudicated by some
    competent authority. It is not possible to shut out the respondent only
    because his application under Sections 6 and 7 was rejected. There was no
    adjudication on merits by the appellate authority. The only reason for
    dismissing the application was that the respondent being not an inter-
B   mediary was not entitled to approach for settlement under Sections 6 and



                                                                                     ..
    7 of the Act. If this be so and the respondent can establish that they or
    their predecessors acquired rights of occupancy tenant then Section 8 of
    the Abolition Act and even the notification issued in 1974 may not be of
    any any avail. Considering these facts it appears expedient to direct the
    appellant to approach the Civil Court for appropriate relief.
c         In the result, this appeal fails and is dismissed. Even though it is not
    necessary to make any observation as the law itself is clear, however, in
    order to obviate any technical defect, the appellant is permitted to ap-
    proach the Civil Court which shall decide the dispute between the parties
    unhindered by any observation made in this order or the order passed by
D   the Commissioner in earlier proceedings under Section 68 of the Act or
    the proceedings under Sections 6 and 7 of the Abolition Act. There shall         ..
    be no order as to costs.

    T.N.A.                                                    Appeal dismissed.