STATE OF ORISSA AND ANR.versusFAKIR CHARAN SETHI DEAD THROUGH LRS AND ORS.

                       [2014] 12 S.C.R. 1120


A                 STATE OF ORISSA AND ANR.
                                  v.
    FAKIR CHARAN SETHI DEAD THROUGH LRS AND ORS.
            (Civil Appeal Nos. 1812-1815 of 2014)
                        OCTOBER 9, 2014
8
           [RANJAN GOGOi AND R.K. AGRAWAL, JJ.]

       Orissa Estates Abolition Act, 1951 - s.8 - Requirement
  u/s. 8 for being recognized as tenants under the State
C Government - Benefit of continuity of tenure - When
  available - Held: To confer the benefit of continuity of tenure
  to the tenant, possession as well as cultivation of the land are
  relevant as on the date of vesting of the land under the Act.

D        Judgment/order- Correctness and authenticity of- Held:
    Judicial order must be based on strong foundational facts free
    from any doubt as regards the correctness and authenticity
    thereof.

        Disposing of the appeals, the Court
E
       HELD:1. What is relevant under Section 8(1) of the
  Orissa Estate Abolition Act, 1951, to confer the benefit of
  continuity of tenure to the tenant is possession as well
  as cultivation of the land as on the date of vesting.
F Therefore what was required to be established by the
  plaintiffs in the present <:ase is cultivation by the
  predecessors of the plaintiffs in the year 1954 when the
  land had vested in the State notwithstanding the status
  of the land as shown in the Record of Rights. No specific
G evidence in this regard has been laid by the plaintiff
  (PW1) except a bald and ominous claim that the land was
  cultivated by his father. Since the plaintiffs had failed to
  prove possession and cultivation as on the date of
  vesting, the same, irrespective of any other question, will
H                               1120
STATE OF ORISSA v. FAKIR CHARAN SETHI DEAD1121
               THROUGH LRS
disentitle the plaintiffs to the reliefs sought in the suit. The   A
plaintiffs' suit is liable to be dismissed and the decree
granting relief to the plaintiffs is required to be reversed.
[Paras 14, 16] [1129-G-H; 1130-A-C; 1131-C)

    State of Orissa & Ors. vs. Harapriya Bisoi, 2009 (12) SCC      B
378: 2009 (7) SCR 34 - relied on.

     2. The appellant- State had raised a specific plea of
forgery and fabrication of the documents relied upon by
the plaintiffs. The High Court ought to have investigated
the matter a little further instead of summarily holding the       C
objections of the State to be mere claims or assertions
of fraud without legal proof. On the slightest of doubt or
even prima facie proof of fraud, the matter must .be
thoroughly investigated by the court to arrive at the truth.
Judicial order must be based on strong foundational facts          o
free from any doubt as regards the correctness and
authenticity thereof. [Para 15] [1130-C, D, G, H]
                      Case Law Reference:
    2009 (7) SCR 34            relied on             Para 11       E
    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
1812-1815 of 2010.

     From the judgment and order dated 30.07.2009 of the
High Court of Orissa at Cuttack in F.A. No. 10 of 2001 and W.P.    F
(C ) Nos. 7434, 7962 and 8874 of 2008.

    Tushar Mehta, ASG., Subir Palit, Milind Kumar for the
Appellants.

    Jaideep Gupta, Ratnakar Dash, P.N. Misra, Sibo Sankar          G
Mishra, Abhijit Sengupta, Balaji Srinivasan, Charu Mathur for
the Respondents.

     The Judgment of the Court was delivered by
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    1122     SUPREME COURT REPORTS                  [2014] 12 S.C.R.


A       RANJAN GOGOi, J. 1. Civil Appeal No. 1812 of 2010
  arising from the common judgment and order dated 30.7.2009
  passed by the High Court of Orissa in F.A.No.1 O of 2001
  affirming the decree dated 29.7.2000 passed by the learned
  Trial Court may be conveniently treated as the main appeal for
B consideration. In that event the fate of the connected appeals
  would stand determined by the outcome of the aforesaid Civil
  Appeal i.e. C.A. No.1812 of 2010.

       2. The respondents 1 and 2, as plaintiffs, instituted Title
C Suit No.620 of 1998 in the Court of learned Civil Judge, (Senior
  Division) Bhubaneswar seeking a declaration of occupancy
  rights in their favour as well as for affirmation of their
  possession as tenants in respect of the suit land. A further
  direction to the defendants 1 and 2 (appellants) to accept rent
  from the plaintiffs and a permanent restraint against interference
D in the possession of the plaintiffs over the suit land was also
  sought in the suit filed.
       3. The short case of the plaintiffs(respondents) before the
  learned Trial Court was to the effect that their father Nidhi Sethi
E who served under the Ex-ruler of Kanika Raja as a washer man
  was granted lease of the suit land measuring 4.16 acres
  covered under Sabik Plot No.292 appertaining to holding
  No.303 situated in Mouza Chandrasekharpur. According to the
  plaintiffs, the aforesaid land was leased 'to their father on
F 14.2.1942; possession of the land was delivered and rent paid
  by their father as tenant was accepted by the Ex-ruler. The
  plaintiffs further claimed that an unregistered Hatapatta (lease
  agreement) (Ext.1) was also granted by the Ex-proprietor in
  favour of the plaintiffs' father. It was the case of the plaintiffs
  that since the date of the lease their father and thereafter the
G plaintiffs had been in possession of the suit land using the same
  for residential as well as agricultural purposes.

         4. It was the further case of the plaintiffs, as stated in the
    plaint, that the intermediary interest in the estate including the
H
STATE OF ORISSA v. FAKIR CHARAN SETHI DEAD1123
      THROUGH LRS [RANJAN GOGOi, J.]
suit land stood abolished and vested in the State Government              A
sometime in the year 1954 under the provisions of the Orissa
Estate Abolition Act, 1951 (hereinafter referred to as 'the
Abolition Act'). According to the plaintiffs, even thereafter, their
father had paid rent to the State Government through the
Tehsildar and had continued to be in possession of the suit               B
land. It was also the case of the plaintiff that their father had
died in the year 1967, whereafter, the pl~intiffs continued to
remain in possession. Furthermore, according to the plaintiffs,
in the Record of Rights published in the year 1974 upon
completion of settlement operation the land was shown as                  c
Government land; the said entry was on account of fact that the
plaintiffs were living outside Orissa. In the Record of Rights
pursuant to 1988 settlement the State Government was shown
as the owner of the suit land with a note of forcible possession
of the same by the plaintiffs against the remarks column. While
                                                                          D
the matter was situated, the defendants 3 and 4 in the suit i.e.
Director of NCC and Defence Estate Officer attempted to
trespass into the suit land. The suit in question was therefore
filed seeking the reliefs earlier noticed.

     5. The defendants 1 and 2 filed a joint written statement            E
pleading, inter a/ia, that the claim of the lease in favour of the
father of the appellant with effect from 14.2.1942 and the
execution of the Hatapatta (Ext.1) was untouched. The
Hatapatta and the supporting rent receipts issued by the Ex-
ruler (Ext.2 series), according to the defendants, were forged            F
and fabricated documents. The claim of possession of the
father of the plaintiffs and thereafter Of the plaintiffs over the suit
land was vehemently contested by the State in the written
statement filed. The State also contended that the entries in the
Record of Rights after conclusion of the settlement operation             G
in the year 1974 which did not disclose ariy interest of the
plaintiffs over the suit land were not challenged by the plaintiffs
in any forum. According to the State, the e.ntry of forcible
possession of the plaintiffs in the remarks column of the Record
of Rights pursuant to the 1988 settlement operation is a forged           H
    1124        SUPREME COURT REPORTS             [2014] 12 S.C.R.


A and fabricated entry. The certified copy of the tenancy roll (Ex.4)
  prepared by the intermediary and submitted by the Government,
  after the vesting, showing the name of the plaintiffs therein as
  well as the tenancy ledger (Ex.5) were also contended to be
  forged.
B
        6. The learned trial court framed as many as five issues
  for trial, out of which issues D and E were considered to be of
  primary importance. The aforesaid two issues framed were as
  follows:

C          "D    -Did the plaintiffs father acquire occupancy right
                 over the suit land being a tenant under the ex-
                 propriator ?

           E     -Are the plaintiffs and their father in continuous
o                possession of the suit land since 1942?"

       7. The learned Trial Court accepted the credibility and
  authenticity of the Hatapatta (Ext.1 ); rent receipts issued by the
  Ex-ruler (Ext.2 series); rent receipts granted by the Tehsildar
  after the vesting of the land in the State Government (Ext.3);
E certified copy of the Rent Roll (Ex.4) prepared by the Ex-
  proprietor and submitted to the Government at the time of
  vesting; the certified copy of the tenancy ledger (Ext. 5)
  prepared by the Tehsildar, Cuttack on 31.3.1981. That apart, a
  host of other documents exhibited by the plaintiffs, particularly,
F the reports of the different authorities (Exts.9, 11 and 12) to show
  the possession of the plaintiffs as well as the certificates of such
  possession iss.ued by the Tehsildar, Bhubaneswar (Ext.14);
  receipts granted by the Bhubaneswar Municipal Corporation
  (Ext.15 series); Driving Licence (Ext. 17), Bank Pass Book
G (Ext.18); Ration Card (Ext.19); Telephone Bills (Ext.20 series)
  were taken into account by the learned Trial Court to record its
  finding of possession in favour of the plaintiffs.

    . 8. The continuous possession of the plaintiffs since the year
H 1942 as found by the learned trial court was understood to have
STATE OF ORISSA v. FAKIR CHARAN SETHI DEAD 1125
      THROUGH LRS [RANJAN GOGOi, J.]
satisfied the requirement under Section 8 of the Abolition Act       A
entitling the plaintiffs to be recognized as tenants under the
State Government, and, therefore, to the reliefs sought in the
suit. The claim of the State with regard to the doubtful
authenticity of the documents relied upon by the plaintiffs were
understood by the learned trial court to be unsubstantiated and      B
unverified claims and, therefore, unworthy of any credence. It
is on the aforesaid broad basis that the plaintiff suit was
decreed by the learned trial court.

     9. Against the decree dated 29.7.2000 passed by the
learned trial court, the State of Orissa filed ari appeal i.e.       C
F.A.No.1 O of 2001 before the High Court. During the pendency
of the appeal before the High Court, the land was allotted to
one Bombay Cardio Vascular Surgical Pvt. Ltd. (respondent
No.2 in C.A.No.1814 of 2010). The aforesaid allotment was
made subject to the result of F.A.No.10 of 2001. The said            D
allotment and the alleged assertion of right on the basis thereof
by the allottee came to be challenged by the first respondent/
plaintiff in W.P.Nos.7962 and 8874 of 2008. A Public Interest
Litigation registered as W.P.No.7434 of 2008 was also filed
befpre the High Court challenging the 'grant' of the land in         E
favour of the plaintiffs and the entries with regard to their
possession made in the Record of Rights of the year 1988. The
aforesaid writ petitions along with F.A.No.10 of 2001 were heard
analogously and were disposed of by the common order of the
High Court dated 30.7.2009.                                          F

      10. The High Court on hearing the appeal against the
decree (F.A.No.10 of 2001) upheld the findings of the learned
trial court by reiterating the same on reconsideration of the
evidence and materials on record. What however would require
specific notice is that before the High Court, the appellant-State   G
had filed two affidavits of the Tehsildar Bhubaneswar and
Cuttack Tehsil respectively to show that Exts.4 and 5, (issued
in 1981-1982) relied upon by the learned trial court, could not
have been issued by the Tehsildar, Cuttack inasmuch as Village
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    1126     SUPREME COURT REPORTS                   [2014) 12 S.C.R.


A Chandrasekharpur (where the suit land is situated) was under
  the jurisdiction of Cuttack District till bifurcation in the year 1970
  and thereafter the said village became a part of Bhubaneswar
  Tehsil. As per Government's Notification all records pertaining
  to village Chandrasekharpur are not available in the Cuttack
8 Tehsil. The authority of the Tehsildar, Cuttack to issue Ext. 4 and
  5 in the years 1981-82 when village Chandrasekharpur
  became a part of Bhubaneswar Tehsil was specifically
  questioned in the aforesaid two affidavits. In so far as Ext. 3
  series (rent receipts) issued by the Tehsildar is concerned, lack
  of authenticity of the same was reiterated by the Tehsildar,
C Cuttack in his affidavit filed in the High Court specifically
  contending that the same was "not genuine" and could not have
  been granted in accordance with law i.e. under the law.

        11. Before us, Shri Tushar Mehta, learned ASG has
D contended that the Hatapatta being an unregistered instrument
  cannot be construed as a legally valid instrument of lease. Even
  if the said document i.e. Ext.1 is to be accepted, the rent
  receipts (Ext.2 series) are entry passes for collection of different
  forest produce inasmuch as in the Record of Rights published
E since the year 1931, indisputably, the land is described as "Jhati
  Jungle" or forest land. What is of significance is the further
  argument of Shri Mehta that the said land being "Jhati Jungle"
  or forest land and the status of the land being Anabadi (unfit
  for cultivation) possession of the plaintiffs' father of the .suit land
F on the date of vesting i.e. 1954 even if is accepted (though the
  same has been vehemently denied), the said possession will
  not enure to the benefit of the plaintiffs inasmuch as the
  possession contemplated by Section 8 of the Abolition Act must
  be for purposes of cultivation and the holding of the land must
G be in the status of a raiyat. In this regard, reliance has been
  placed on the decision of this Court in State of Orissa & Ors.
  Vs. Harapriya Bisoi1. According to Shri Mehta, there is no legal
  much less acceptable evidence and no finding whatsoever of
  such possession in favour of the plaintiffs has been recalled by
H 1. 2009 (12) sec 378.
 STATE OF ORISSA v. FAKIR CHARAN SETHI DEAD1127
       THROUGH LRS [RANJAN GOGOi, J.]
the learned trial court. Pointing out the relevant paragraphs           A
{paras 34 to 36) of the report in State of Orissa & Ors. Vs.
Harapriya Bisoi (supra) Shri Mehta has contended that the
pendency of a criminal investigation in respect of the Hatapatta
issued in the said case, has been noticed by this Court. The
Hatapatta (Ext. 1) issued to the father of the plaintiffs, as           B
claimed, are in circumstances similar to the present case. By
pointing out the averments in the written statement filed by the
State before the learned trial court and the affidavits of the
Tehsildar, Cuttack and Bhubaneswar Tehsil before the High
Court, Shri Mehta has submitted that there is grave doubt with          c
regard to the authenticity of the documents relied on by the
learned trial court as well as by the High Court in support of
the impugned findings. Shri Mehta has also pointed out that the
other documents (Exts.9 to 20) would at best go to show the
possession of the plaintiffs after the date of vesting which is         0
not at all relevant for deciding the entitlement of the plaintiffs
as claimed in the suit.

      12. In reply, Shri Jaideep Gupta, learned senior counsel
appearing on behalf of respondent Nos. 1 and 2 has taken us
through the pleadings in the plaint and the relevant part of the        E
evidence of PWs.1 and 2 to show that what was pleaded and
proved by the evidence brought by the plaintiffs is the
continuous possession of the plaintiffs or their predecessors
and cultivation of a part of suit land by them since the year 1942.
On the said basis it is urged that the statutory protection             F
available to tt:ie plaintiffs under Section 8(1) of the Abolition Act
was rightly accorded by the learned trial court and affirmed by
the High Court in appeal. It is contended that the objections
taken with regard to the authenticity of some of the documents
brought on record by the plaintiffs are belated as the said             G
documents were allowed to be exhibited in the trial without any
objection from the State. The criminal investigation does not
pertain to the Hatapatta issued to the plaintiffs father (Ext.1 ). It
is, therefore, contended that there is no basis for interference.
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    1128     SUPREME COURT REPORTS                [2014] 12 S.C.R.


A       13. It will not be necessary to go into the various
  contentious issues arising from the· weighty arguments
  advanced by the learned counsels for the parties as, according
  to us, the controversies arising are capable of being resolved
  within a narrow compass. In State of Orissa & Ors. Vs.
B Harapriya Bisoi (supra), it has been held by this Court that
  possession of a tenant under an intermediary on the date of
  vesting of the land under the Abolition Act so as to give the
  tenant the benefit of continuity of tenure under Section 8(1) of
  the said Act would have to be in the status of a raiyat actually
c cultivating the land. The definition of Raiyat contained in Section
  2(n) and the provisions of Section 5(2) of the Orissa Tenancy
  Act, 1913 were at length considered by this Court to come to
  the aforesaid conclusion which may be noticed by a specific
  reference to the relevant paragraphs of the report in State of
  Orissa & Ors. Vs. Harapriya Bisoi (supra):-
0
        "26. By virtue of Section 8, any person who immediately
        before the vesting of an estate in the State Government
        was in possession .of any holding as a tenant under an
        intermediary, would on and from the date of the vesting,
E       be deemed to be a tenant of the State Government. The
        woras "holding as a tenant" mean the "raiyat" and not any
        other class of tenant: reference in this regard may be
        drawn to the definition of "holding" in the Orissa Tenancy
        Act, 1913:
F
             "3. (8) 'holding' means a parcel or parcels of land
        held by a raiyat and forming the subject of a separate
        tenancy;"

        Section 8 thus confers protection only on the "raiyar 1.e.
G       the actual tiller of the soil. ,

              27. Significantly, a "lease" and "lessee" on the one
        hand are defined separately from the "raiyat" under the Act.
        Thus, the mere execution of a lease by the intermediary
H       in favour of a person would not confer the status of a
STATE OF ORISSA v. FAKIR CHARAN SETHI DEAD 1129
      THROUGH LRS [RANJAN GOGOi, J.]
    "raiyat" on the lessee nor would protect the possession of       A
    such lessee under Section 8. In fact, a "lease" would
    amount to a transfer of an interest of the intermediary in
    the land to the lessee. In such a situation, far from being a
    tenant protected under Section 8, the lessee would in fact
    step into the shoes of the intermediary with his interest        8
    being liable for confiscation and his entitlement limited to
    compensation from the State.

           28. On the other hand. for protection under Section
    8. one has to be a raiyat cultivating the land directly and
    having the rights of occupancy under the tenancy laws of         C
    the State. Thus. a "lessee" who is not actually cultivating
    the land i.e. who is not a "raiyat". would not be within the
    protection of Section 8 of the Act. Section 2(h) of the Act
    in its residuary part states that "intermediary" would cover
    all owners or holders of interest in land between the raiyat     D
    and the State."

     In Para 30 of the aforesaid report, on similar facts, the
claim of cultivation of the land recorded as Anabadi and jhati
jungle i.e. forest land in the said case was negatived by this       E
Court on the plain logic that such a claim of cultivation can have
no basis when the land-is described in the Revenue records
as 'Jhati Jungle' and also as Anabadi i.e. uncultivable.

     14. In the"present case even though the evidence of PW1
and 2 may indicate that the suit land was cultivated by the          F
plaintiffs, in the light of views expressed by this Court in para
30 of the report in the State of Orissa & Ors. Vs. Harapriya
Biso (supra), the aforesaid evidence, without further details,
has to be c9nstrued as wholly unacceptable proof of cultivation
of the suit land by the plaintiffs' predecessors on the date of      G
vesting of the land under the provisions of the Abolition Act. It
must be made clear that what is relevant under Section 8(1) of
the Abolition Act to confer the benefit of continuity of tenure to
the tenant is possession as well as cultivation of the land as
on the date of vesting. Therefore what was required to be            H
    1130      SUPREME COURT REPORTS                  [2014] 12 S.C.R.


A established by the plaintiffs in the present case is cultivation
  by the predecessors of the plaintiffs in the year 1954 when the
  land had vested in the State notwithstanding the status of the
  land as shown in the Record of Rights. No specific evidence
  in this regard has been laid by the plaintiff (PW1) except a bald
8 and  ominous claim that the land was cultivated by his father. If
  the plaintiffs had failed to prove possession and cultivation as
  on the date of vesting, as we are inclined to hold, the same,
  irrespective of any other question, will disentitle the plaintiffs to
  the reliefs sought in the suit.

C        15. The appellant- State in its written statement before the
    learned trial court as well as in the appeal before the High Court
    had raised a specific plea of forgery and fabrication of the
    documents relied upon by the plaintiffs. The affidavits of the
    Tehsildar, Cuttack and Bhubaneswar Circle filed before the
D   High Court specifically deal with aforesaid issue. The appellant
    State had filed an applicatiqn under Order 41 Rule 27 of the
    Code of Civil Procedure for leave to bring the same on record.
    The said application was rejected and all objections brushed
    aside by holding that the burden to prove the forgery alleged
E   has not been satisfactorily discharged by the State. It is our
    considered view that the matter required a deeper probe and
    investigation and did not call for a summary rejection. That apart
    in State of Orissa & Ors. Vs. Harapriya Bisoi (supra) the
    issue with regard to validity of a Hatapatta similar.to Ext. 1 was
p   found to be the subject matter of an ongoing criminal
    investigation. All these required the elimination of even slightest
    of doubt with regard to the authenticity of the relied upon
    documents. The effect of fraud on judicial orders has also been
    exhaustively considered in State of Orissa & Ors. Vs.
G   Harapriya Bisoi (supra) and it will not be necessary to reiterate
    the views expressed therein except to say that on the slightest
    of doubt or even prima facie proof of fraud, the matter must be
    thoroughly investigated by the court to arrive at the truth. Judicial
    order must be based on strong foundational facts free from any
H   doubt as regards the correctness and authenticity thereof. In the
STATE OF ORISSA v. FAKIR CHARAN SETHI DEAD 1131
      THROUGH LRS [RANJAN GOGOi, J.]
light of the facts noticed by us the High Court, in our considered     A
view, ought to have investigated the matter a little further instead
of summarily holding the objections of the State to be mere
claims or assertions of fraud without legal proof.

     16. However, in view of our conclusions on the issue of           8
possession of the plaintiffs' predecessors on the date of
vesting of the land under the Abolition Act and the continuity of
the tenure claimed by the plaintiffs after such vesting under
Section 8(1) of the Abolition Act the plaintiffs' suit is liable to
be dismissed and the decree granting relief to the plaintiffs is       C
required to be reversed. We, therefore, set aside the judgment
and order dated 29.7.2000 passed by the High Court in
F.A.No.10 of 2001 and allow Civil Appeal No. 1812/2010
challenging the said order. The remaining civil appeals shall
stand decided accordingly. Specifically, the orders passed by
the High Court in Writ Petition Nos. 7434 and 7962 of 2008             D
are set aside whereas Writ Petition No. 8874/2008 shall stand
disposed on in terms of the order passed in Civil Appeal No.
1812/2008.

     17. All the appeals shall stand decided in the above terms.       E
Bibhuti Bhushan Bose                            Appeals disposed of.