# • MAGUNI CHARAN DWIVEDI v. STATE OF ORISSA AND ANOTHER

- **Citation:** [1976] 3 S.C.R. 75
- **Court:** Supreme Court of India
- **Decided:** 1975-12-19
- **Case number:** Civil Appeal No. 577 of 1975
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maguni-charan-dwivedi-v-state-of-orissa-and-another-6823
- **Pages:** 7

## Headnote

•
MAGUNI CHARAN DWIVEDI
v.
STATE OF ORISSA AND ANOTHER
December 19, 1975
75
IA. N. RAY, C.J., M. H. BEG, R. S. SARKARIA AND P. N. SHINGHAL, JJ.]
Orissa Merged Territories (Village Offices Abolition) Act, 1963-Sections
3, 5 and 9-lnterpretation of.
In the execution proceedings to satisfy a decree dated 14-10-1958 for title
and recovery of possession of certain "ganju Bhogra lands" obtained by the appellant against the State, the Notified Area Council. Rourkela claimed the suit
·lands by an application u_/o XXI Rule 58 r /w ss. 37 and 38 Code of Civil Pr_ocedure.
The said application ¥ias rejected.
A revision against it was als'? dlSmissed with the observation that the council was free to file a regular suit for
adjudication of its rights. When the appellant took out a· fresh application for
execution u/s'47 of the Code of Civil Procedure, the Council which never filed
.any suit, and the respondent State which never appealed against the original
decree, opposed the execution application on the ground that the decree became
infructuous by virtue of s. 3 of the Oriss::i J\1erged Territories (Village Offices
Abolition) Act, J 963.
The Executing court upheld the objection and dismissed the execution petitition.
On appeal the Additional District Judge, by his order dated 2-5-1970,
held that the decree was executable resulting in a second appeal to the High
Court by the respondent State. The High Court allowed the appeal by its order
dated 4-11-1974 holding that as the decree holder was not in actual physical
possession of the land, the tenure ha~ vested in the State free from all encumbrances u/s 3 of the Act and the decree was rendered "non est".
Dismissing the appeal by special leave, the Court,
HELD : ( 1) As a result of the abolition of the village office under s. 3 of
the OMTA, all incidents of the appellant's service tenure, e.g., the right to hold
the "bhogra land", stood extinguished
by virtue of the provision of clause
<b) of s. 3, an<l all settlements, sanads and all grants in pursuance of \vhich
1he tenure was being held by the appellant, stood cancelled under s. 3 ( c). The
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right of the appellant to receive emoluments was also deemed to have been
terminated under Cl. (d) and by virtue of Cl. (f), his bhogra land stood resumed
and "vested absolutely" in th.e State free from• all encumbrances. Section 3 oE
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the Act, in fact, expressly provided tha~· this would be the result, not¥lithstanding anything in la\v, usage, settlement, grant, sanad, order or "in any judgment,
decree or order of a court."
All these consequences ensued with effect from
April 1, 1966 the date of coming into force of the Orissa Merged Territories
(Village Offices Abolition) Act, 1963.
From that date, the appellant suffered
from these and other disabilities enumerated in s. 3 of the Act, the "bhogra land"
'in respect of which he obtained the decree dated October 14, 1958 declaring his
1itle and upholding his_right to possession was, therefore, lost to him as it vested
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"absolutely'' in the State Government free: from all encumbrances. The decree
for possession also thus Jost its efficacy by virtue of the express provisions Of the
Act and there is nothing wrong in holding that the decree \Vas rendered incapable of execution by operation of law. [77 D-H]
(2) Under sec. 5 of Orissa ~1erged Territoies ((Village Offices i\bolition)
Act, 1963, once a "bhogra land" stood resumed and vested absolutely in the
State Government to the exclusion of the village officer concerned, it was required to be "settled" with rights of occupancy thereunder. The settlement of
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of the land contemplated·1 by sec. 5 had to be \Vith the holder of the village office
and the other persons who \Vere enjoying it (or part of it) and as his co-sharers,
Dr as tenants under him or: his co-sharers, but that was to be so on the condition
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SUPREME COURT REPORTS
[1976] 3 S.C.R.
that "each such person, namely, the holder of the village office and his cosharers or

## Text

•
MAGUNI CHARAN DWIVEDI
v.
STATE OF ORISSA AND ANOTHER
December 19, 1975
75
IA. N. RAY, C.J., M. H. BEG, R. S. SARKARIA AND P. N. SHINGHAL, JJ.]
Orissa Merged Territories (Village Offices Abolition) Act, 1963-Sections
3, 5 and 9-lnterpretation of.
In the execution proceedings to satisfy a decree dated 14-10-1958 for title
and recovery of possession of certain "ganju Bhogra lands" obtained by the appellant against the State, the Notified Area Council. Rourkela claimed the suit
·lands by an application u_/o XXI Rule 58 r /w ss. 37 and 38 Code of Civil Pr_ocedure.
The said application ¥ias rejected.
A revision against it was als'? dlSmissed with the observation that the council was free to file a regular suit for
adjudication of its rights. When the appellant took out a· fresh application for
execution u/s'47 of the Code of Civil Procedure, the Council which never filed
.any suit, and the respondent State which never appealed against the original
decree, opposed the execution application on the ground that the decree became
infructuous by virtue of s. 3 of the Oriss::i J\1erged Territories (Village Offices
Abolition) Act, J 963.
The Executing court upheld the objection and dismissed the execution petitition.
On appeal the Additional District Judge, by his order dated 2-5-1970,
held that the decree was executable resulting in a second appeal to the High
Court by the respondent State. The High Court allowed the appeal by its order
dated 4-11-1974 holding that as the decree holder was not in actual physical
possession of the land, the tenure ha~ vested in the State free from all encumbrances u/s 3 of the Act and the decree was rendered "non est".
Dismissing the appeal by special leave, the Court,
HELD : ( 1) As a result of the abolition of the village office under s. 3 of
the OMTA, all incidents of the appellant's service tenure, e.g., the right to hold
the "bhogra land", stood extinguished
by virtue of the provision of clause
<b) of s. 3, an<l all settlements, sanads and all grants in pursuance of \vhich
1he tenure was being held by the appellant, stood cancelled under s. 3 ( c). The
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right of the appellant to receive emoluments was also deemed to have been
terminated under Cl. (d) and by virtue of Cl. (f), his bhogra land stood resumed
and "vested absolutely" in th.e State free from• all encumbrances. Section 3 oE
F
the Act, in fact, expressly provided tha~· this would be the result, not¥lithstanding anything in la\v, usage, settlement, grant, sanad, order or "in any judgment,
decree or order of a court."
All these consequences ensued with effect from
April 1, 1966 the date of coming into force of the Orissa Merged Territories
(Village Offices Abolition) Act, 1963.
From that date, the appellant suffered
from these and other disabilities enumerated in s. 3 of the Act, the "bhogra land"
'in respect of which he obtained the decree dated October 14, 1958 declaring his
1itle and upholding his_right to possession was, therefore, lost to him as it vested
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"absolutely'' in the State Government free: from all encumbrances. The decree
for possession also thus Jost its efficacy by virtue of the express provisions Of the
Act and there is nothing wrong in holding that the decree \Vas rendered incapable of execution by operation of law. [77 D-H]
(2) Under sec. 5 of Orissa ~1erged Territoies ((Village Offices i\bolition)
Act, 1963, once a "bhogra land" stood resumed and vested absolutely in the
State Government to the exclusion of the village officer concerned, it was required to be "settled" with rights of occupancy thereunder. The settlement of
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of the land contemplated·1 by sec. 5 had to be \Vith the holder of the village office
and the other persons who \Vere enjoying it (or part of it) and as his co-sharers,
Dr as tenants under him or: his co-sharers, but that was to be so on the condition
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SUPREME COURT REPORTS
[1976] 3 S.C.R.
that "each such person, namely, the holder of the village office and his cosharers or the tenants under the holder of the office or his co-sharers was in
'"separate and actual cultivating possession" of the land
immediately before
April, 1966. The words "each such person" occurring in sub-section I of Sec. 5
include the holder of the village office so that in order lo be eligible for settlement of the land with occupancy rights, he must also be in separate and cultivating possession of the "bhogra land" in1mediately before April 1, 1966. There
is nothing in sub-section I of Sec. 5 to justify the argument that the interpretation
of the words "each such person" should be such as to exclude the holder of
the village office from it:1 purviev.r. 178 E, F-H]
State of Orissa v. Ra1neswar Patabisi (Civil .Revision Petition No. 257 of
1974) decided on 27-6-1975 (Orissa High Court) over-ruled; Meharabansingh
and Ors. v. l\1areshaingh and Ors., [1970] 3 S.C.R. 18 (held not applicable).
(3) The provisions of sec. 9 do not justify the argument that the village
officer \!<-as 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 fro.m all encumbrances. [80 E]
·
( 4) The normal consequences arising out of the rejection of the application
under O. XXI, r. 58. Civil Procedure Code and the failure ta institute the suit
thereafter, were rendered nugatory by the express provisions of section 3 of
the Orissa 11ergcd Territories (Village Offices Abolition) Act, 1963. The question of executability of the decree did not arise. [81 A-B]
[The Court left open to the authorities concerned to examine the question of
settlement of the land under s. 5 ( 1) of the Orissa Merged Territories (Village
Offices Abolition) Act, 1963, with liberty to the village officer to rely upon
such matters as may be available according to law.]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 577 of 1975.
Appeal by Special Leave from the Judgment and Order dated the
4-11-74 of the Orissa High Court in M.A. No. 75 of 1970.
G. S. Pathak, Santosh Chatterjee and G. S. Chatterjee for the
Appellant.
Sachin Chowdhury (Respondent No. 2) and Vinoo Bhagat for the
r
Respondent No. 1.
The Judgment of the Court was delivered by
SHINGHAL J.,
Maguni Charan Dwivedi, the appellant, filed a title
suit in the Court of Munsif, Suudargarh against the State of Orissa, for
declaration of his title and recovery of possession of plot No. 99 measuring 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.
Decree-holder 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 XX! rule 58 of the
Code of Civil Procedure on tl1e 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 of the order of rejection, bnt 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 decreeholder Dwivedi filed an application on September 5, 1966 for proceeding with the execution of his decree. The Council and the State then
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M. c. DWIVED! v. ORISSA (Shinghal, !.)
77
made an application under s. 4 7 of the Code of Civil Procedure stating
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that the decree was not executable because the Orissa Merged Territories
(Village 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 execution application.
Decree-holder Dwivedi 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 the decree-holder was not in actual physical possession of
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the land, the tenure had vested in the State free from all encumbrances
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under s. 3 of the Act, the decree was "rendered non est", and the Collector could not settle the land with him under s. 5 of the Act. It
therefore allowed the appeal by its impugned judgment dated November 4, 1974, and ordered that the decree-holder could not exectite
the decree.
He applied for and obtained special leave, and has filed
the present appeal.
It is not in dispute before us that the appellant held the "village
office" within the meaning of s. 2(j) of the Act. It is also not in dispute t11at it was in that capacity that he held the "bhogra land" in question by way of emoluments of his office. Moreover it is not in dispute
that tlle appellant's village office stood abolished in accordance with tlle
provisions of s. 3 (a) of t_he Act. The consequences of the abolitio11
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have been stated in els. (a) to (g) of s. 3. It will be sufficient for us
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to say, for purposes of the present controversy, that as a result of tlle
abolition of the office, all incidents of the appellant's service tenure,
e.g., the right to hold the "bhogra land'', stood extinguished by virtue of
the provisions of cl. (b) of s. 3, and all settlements, sanads and all grants
in pursuance of which the tenure was being held by the appellant stood
cancelled under s. 3 ( c). The right of the appellant to receive the
emoluments was also deemed to have been terminated under cl. ( d),
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and by virtue of cl. (f) his "bhogra land" stood resumed and "vested
absolutely in'.the State Government free from all encumbrances." Section 3 of the Act in fact expressly provided that tllis would be the result,
notwithstanding anything in any law, usage, settlement, grant, sanad or
order or "in any judgment, decree or order of a Court." All these
consequences therefore ensued with effect from April 1, 1966 when, as
has been stated, the Act came into force in the e.rea with which we are
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concerned.
There can be no doubt therefore that from that date appellant Dwivedi suffered from these and the oilier disabilities enumerated in s. 3 of the Act; the "bhogra land" in respect of which he obtained
the decree dated October 14, 1958 declaring his title and upholding
his right to possession, was therefore lost to him as it vested "absolutely"
in the State Government free from all encumbrances. The decree for
possession also thus lost its efficacy by virtue of the express provisions
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of the Act referred to above, and there is nothing wrong if the High
Court has held that it was rendered incapable of execution by operation
of the law.
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SUPC<EME COURT REPORTS
[1976] 3 S.C.R.
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Section 5 of the Act deals with the settlement of the resumed "bhogra
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land" and has been the subject matter of controversy before us. It provides as follows :
"5. Settlement of Bhogra lands :-(!) All Bhogra lands
resumed under the provisions of this Act shall subject to the
provisions of sub-section (2) be settled with rights of occupancy therein on a fair and equitable rent with the holder of
the Village Office or with him and all those other persons,
if any, who may be in the enjoyment of the land or any part
thereof as his co-sharers or as tenants under him or under
such co-sharer to the extent that each such person was in separate and actual cultivating possession of the same i)nmediately
before the appointed date.
( 2) The total area of such land in possession of each such
person shall be subjcc\ to a reservation of a certain fraction
thereof in favour of the Grama Sasan within whose limits the
land is situate and the extent of such reservation shall be determined in the following manner, namely :-
Land in possession
Extent of reservation
For the first IO acres
Nil
For the next 20 acres
5 per cent
For the next 70 acres
10 per cent
For the next 100 acres
30 per cent
For the rcn1aining
40 per cent :
Provided that the area reserved shall, as far as practicable,
be in compact block or blocks of one acre or more." (Emphasis
added).
It would appear, that once a "bhogra land" stood resumed and vested
absolutely in the State Government to the exclusion of the village officer
concerned, it was required to be "settled", with rights of occupancy
thereunder, with the erstwhile holder of the village office, or with him
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and all those other persons, if any, who may be in enjoyment of the
land or any part thereof as his co-sharer to the extent that each such
person was in separate and actual cultivating possession o! the same
immediately before the date appointed for the coming into force of the
Act.
The settlement of the land contemplated by s. 5 had therefore
to be with the holder of the village office and the other persons who
were enjoying it (or part of it) as his co-sharers or as' tenants under
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him or his co-sharers, but that was to be so on the condition that "each
sucb person" namely, the holder of the village office, and his co-sharers,
or the tenants under the holder of the office or his co-sharers, was in
"separate and actual cultivating possession" of the land immediately
before April l, 1966. There is nothing in sub-section (1) of s. 5 to
justify the argument of Mr. Pathak that we should so
interpret the
words "each such person" as to exclude the holder of the village office
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from its purview. In fact the same words occur in sub-s. (2) of s. 5
as well. which deals with the question of reservation of a fraction of
the "bl1ogra land" in favour of Grama Sasan, and Mr. Pathak has not
found it possible to argue that the land in possession of the holder of
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M. c. DWIVEDI v. ORISSA (Shinghal, J.)
79
the village office was immune from the liability to such fractional reservation. We have no doubt therefore that in order to be entitled to
the settlement contemplated by sub-s. (I) of s. 5, the village officer
or the other persons mentioned in the sub-section had to be in "separate and actual cultivating possession" immediately before the appointed
date.
It has also been argued by Mr. Pathak that the provisions of s. 3
of the Act were subject to the provisions of s. 5, and that the High
Court committee an error in losing sight of. that requirement of the law.
He has urged that if s. 3 had been r_ead as suggested by him, it would
have been found that, in spite of the resumption and vesting of the
"bhogra land" under s. 3, the appellant's right to possess the "bhogra
land" in question continued to subsist so long as it was not converted
into a right of occupancy under sub-s. (1) of s. 5.
Counsel has gone
on to argue that the appellant was therefore entitled to ignore any trespass on his possession- of the "bhogra land", and to ask for execution
of the decree for possession against the respondents as they were mere
trespassers and were not co-sharers or tenants within the meaning of
sub-s. (I) of s. 5. Reference in this connection has been made to Maxwell on Interpretation of Statutes, twelfth edition, p. 86, where it has
been stated that it is necessary to interpret the words of the statute so
as to give the meaning "which best suits the scope and object of the
statute." It has been argued that grave injustice would otherwise result
for, by a mere act of trespass committed on the eve of the coming into
force of the Act, a village officer would lose the right of settlement of
his "bhogra land" under sub-section (1) of s. 5.
It has also been
argued that the words "each such person" occurring in that sub-section
do not include the holder of the village office himself, so that it was not
necessary for him to show that he was in separate and actual cultivating
possession of his "bhogra land".
Reliance for this proposition has
been placed on a bench decision of the High Court of Orissa in State
of Orissa v. Rameswar Patabisi (Civil Revision Petition No. 257 of
1974 decided on June 27, 1975) and on Meharahansingh and others v.
Nareshsingh and others('').
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 els. (a)(b)(c)(d) and (I) 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 th'e "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 sub-section (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
(I) [1970jl S.C.R.18.
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SUPREME COURT REPORTS
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stated, sub-section ( 1) of s. 5 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 the sub-section, but
1such 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
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rights of occupancy under su b-s. ( 1) of s. 5 because it was the subject mailer of the decree which had not beeu executed.
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We have gone through the decision in State of Orissa v. Rameshwar
Patabisi (supra) and it has no doubt been held there that actual cultivating possession of the village officer was not necessary for purposes of
sub-s. ( 1) of s. 5, but, as has been shown, we have no doubt that the
words "each such person" occurring in sub-s. (!) of s. 5 include the
l1older of the village office, so that in order to be eligible for settlement
of the land with occupancy rights, he must also be in separate and
actual cultivating possession of the "bhogra land" immediately before
the appointed date. It appears that the earlier bench decision to the
contrary. which is the subject matter of the present appeal, was not
brought to the notice of the Bench which decided Rameswar Patabisi's
case.
We have gone through Maharabansingh's(1') case also but that
was quite a different case which was decided in accordance with the
provisions of a different Act.
It has next been argued by Mr. Pathak that the High Court lost
sight of the provisions of s. 9 of the Act which provided for submission
of records and delivery of possession of other land but did not require
delivery of possession of the "bhogra land" even after its resumption.
The argument is however untenable because s. 9 was meant to serve
quite a different purpose inasmuch e,s it made provision 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
"ppertaining 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 frorri all encumbrances
under s. 3.
'
It may be mentioned that Mr. Pathak has argued further that as the
application which had been filed by the Council under Order XXI r.
58 C.P.C. had been rejected on March 31, 1965 and the Council did
not file a suit to establish its right to the "bhogra land", the decree in
favour of the appellant became final and could not be challenged for
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M. c. DWIVEDI v. ORISSA (Shinghal, ].)
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any reason what§oever, and the High Court committed an error in
taking the view that it was rendered inexecutable merely because _of the
coming into force of the Act. It will be sufficient for us to say m this
connection that whatever might have been the consequences of the rejection of the Council's 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.
For the reasons 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 for the High Court to express
the view that the appellant "had no possession of the land" so as to
claim its settlement under s. S (!) 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. While therefore the appeal fails and is dismissed, the observation of the High Court that the decree-holder had
no possession of the land and the Collector could not settle the land
with him, is set aside, and it is left to the authorities concerned to examine the question of settlement of the land under s. 5 (I). The appellant may rely on such matters as may be open according to the law.
In the circumstances of this case, we leave the parties to pay and bear
their own costs.
S.R.
Appeal dismissed
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