# RAJA SRI SAILENDRA NARAYAN BHANJA DEO v. THE STATE OF ORISSA

- **Citation:** [1956] 1 S.C.R. 72
- **Court:** Supreme Court of India
- **Decided:** 1953-09-28
- **Case number:** Civil Appeal No. 122of1954
- **Bench:** S. R. Das, Bragwati, Jagannadhadas, Venkatarama Ayyar, B. P. Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raja-sri-sailendra-narayan-bhanja-deo-v-the-state-of-orissa-1259
- **Pages:** 20

## Headnote

Estates Abolition-'Estate', Meaning Qf-Estoppel by judgment
-Test-Respondent, if can rely on grounds not specified in his State·
ment of Gase-Orissa Estates Abolition Act (Orissa Act I of 1962), ss.
2 (g), 8(1)-Supreme Court Rules, 0. XIX, r. 4.
The appellant sued the State of Orissa for a declaration that
the Orissa Estates Abolition Act of 1951 was in its application to
the Kanika. Ra.j, of which he wa.s the Raja. a.nd owner, invalid, un·
constitutional and ultra vires the State Legislature and for an in·
junction restraining the State of Orissa from taking any action under
the Act. It was contended, inte>· alia, that no notification under
s. 3(1) of the Act vesting the Kanika Raj in the State of Orissa
could issue as the Raj was not an estate as defined by s. 2 (g) of the
Act.
The contrary was asserted by the State of Orissa and its fur·
ther conten.tion was that the appellant was estopped by a compro·
mise decree between his predecessors-in-title on the one hand and
the Secretary of State on the other from denying that the Raj was
an estate as defined by the Act.
Held, that the Kanika Raj was an estate as defined by the
Orissa Estates Abolition Act of 1951 and the appellant was estopped
from denying it by the compromise decree.
That the real intention of the Act in defining 'estate' as it has
done in s. 2(g) of the Act, was to include all lands, such as the ap·
pellant' s, which were e.s a. matter of fact included in the register prepared under the Bengal Land Registration Act of 1876, and in con·
struing the definition it is wholly unnecessary to consider whether
such inclusion was valid or proper or in conformity with the mean~
~- ~
ing of an estate under that Act.
That a judgment by consent is as effective in creating an estop~
pol between the parties as a judgment on contest and the test is who·
.ther the judgment in the previous case could have been passed with·
out the determination of the question which is put in issue in the
subsequent case where the plea of estoppal is raised.
Held further, that there is no role corresponding to Rule 4 of
Order XIX of the Supreme Court Rules imposing a similar disability
on the respondent, and even with regard to the appellant the court
may in appropriate ca.sas, give him leave to raise a ground not
specified in the Statement of the Case filed by him.
S.C.R.
SUPREME COURT REPORTS
73

## Text

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1956
F_~bmary 3
72
SUPREME COURT REPORTS
RAJA SRI SAILENDRA NARAYAN
BHANJA DEO
v.
THE STATE OF ORISSA.
[1956]
[S. R. DAS, C.J., BRAGWATI, JAGANNADHADAS,
VENKATARAMA AYYAR and B. P. SINHA JJ.]
Estates Abolition-'Estate', Meaning Qf-Estoppel by judgment
-Test-Respondent, if can rely on grounds not specified in his State·
ment of Gase-Orissa Estates Abolition Act (Orissa Act I of 1962), ss.
2 (g), 8(1)-Supreme Court Rules, 0. XIX, r. 4.
The appellant sued the State of Orissa for a declaration that
the Orissa Estates Abolition Act of 1951 was in its application to
the Kanika. Ra.j, of which he wa.s the Raja. a.nd owner, invalid, un·
constitutional and ultra vires the State Legislature and for an in·
junction restraining the State of Orissa from taking any action under
the Act. It was contended, inte>· alia, that no notification under
s. 3(1) of the Act vesting the Kanika Raj in the State of Orissa
could issue as the Raj was not an estate as defined by s. 2 (g) of the
Act.
The contrary was asserted by the State of Orissa and its fur·
ther conten.tion was that the appellant was estopped by a compro·
mise decree between his predecessors-in-title on the one hand and
the Secretary of State on the other from denying that the Raj was
an estate as defined by the Act.
Held, that the Kanika Raj was an estate as defined by the
Orissa Estates Abolition Act of 1951 and the appellant was estopped
from denying it by the compromise decree.
That the real intention of the Act in defining 'estate' as it has
done in s. 2(g) of the Act, was to include all lands, such as the ap·
pellant' s, which were e.s a. matter of fact included in the register prepared under the Bengal Land Registration Act of 1876, and in con·
struing the definition it is wholly unnecessary to consider whether
such inclusion was valid or proper or in conformity with the mean~
~- ~
ing of an estate under that Act.
That a judgment by consent is as effective in creating an estop~
pol between the parties as a judgment on contest and the test is who·
.ther the judgment in the previous case could have been passed with·
out the determination of the question which is put in issue in the
subsequent case where the plea of estoppal is raised.
Held further, that there is no role corresponding to Rule 4 of
Order XIX of the Supreme Court Rules imposing a similar disability
on the respondent, and even with regard to the appellant the court
may in appropriate ca.sas, give him leave to raise a ground not
specified in the Statement of the Case filed by him.
S.C.R.
SUPREME COURT REPORTS
73
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
122of1954.
1956
Raja Sri Sailendra
Appeal under section 109(b) read with section Narayan Bhanja
110, C.P.C. from the judgment and order dated the
Doo
28th September 1953 of the Orissa High Court in The stat;~! OriSSP
O.S. No. 1 of 1953.
P. R. Das and Bakshi Tek Chand, with M.
Mohanti and S. P. Varma, for the appellant.
M. 0. Setalvad, Attorney-General of India. B.
Mohapatra, Advocate-General of Orissa with S. Mohanti
and P. G. Gokhale, for the respondent.
1956. February 3. The Judgment of the Court
was delivered by
DAS C.J.-This is an appeal from the judgment and
decree passed on the 28th September, 1953, by a
Bench of the Orissa High Court in an Original Suit
which was filed on the 24th November, 1952, in the
Court of the Subordinate Judge of Cuttack and was
on the 17th January, 1953, transferred to the High
Court and marked as Original Suit No. 1 of 1953.
The suit was filed by the plaintiff-appellant claiming
as the Raja and owner of the Rajgee, known as the
Kanika Raj, against the State of Orissa, praying for
a declaration that the Orissa Estates Abolition Act,
1951 (hereinafter referred to as "the Abolition Act")
was, in its application to the Rajgee of Kanika, invalid, unconstitutional and ultra vires the State Legis-
"'
lature and for an injunction restraining the State of
Orissa from taking any action under the said Act.
The suit was instituted evidently under an apprehension that the State of Orissa might issue a notification under section 3(1) of the Abolition Act declaring
that the Rajgee of Kanika had passed to and become
vested in the State free from all encumbrances. The
High Court dismissed the suit hut gave a certificate
of fitness for appeal to this court. Hence the present
appeal by the plaintiff.
The plaintiff's contention before us is that no
notification under section 3(1) of the Abolition Act
10
74
SUPREME COURT REPORTS
[1956]
7956
.can issue because (1) his land is not an "estate" as
. -. -.
defined in section 2(g) of the Act, and (2) the plainRa1a Sri Sa1lendra t"ff ·
t
w
t
d"
'
· h ·
h
·
f
Nara:;anBhanja
I
IS no an m erme 1ary wit m t e meanmg o
Dco
section 2(h) thereof. In answer to this, the Attorneyv.
General, appearing on behalf of the State, makes five
The State of Orissa· submissions, viz.,
Das C.J.
(a) that on the admitted facts the plaintiff's land
is an "estate" within the meaning of the Abolition
Act;
(b) that the plaintiff is estopped by the compromise decree passed by the Patna High Court on 2nd
May 1945 in F.A. No. 15 of 1941 from contending that
his land is not an "estate" within the meaning of the
Abolition Act;
(c) that the plaintiff's land has been held as an
"estate" ever since 1803;
(d) that whatever may have been the position
before 1805, the plaintiff's land became an "estate"
by Regulation XII of 1805; and
(e) that in any event, the plaintiff's land became
an "estate" after 1805 by subsequent acts and conduct of the plaintiff and his predecessors in title.
Re. (a):-Under section 3(1) of the Abolition Act,
the State Government can declare that a specified
"estate" has passed to and has become vested in the
State. It is, therefore, clear that the State Government cannot make amy notification with respect to
land which is not an "estate". "Estate" is defined
in section 2(g) of the Abolition Act. The material
portion of that definition, as it stood at the date of
the institution of the suit, was as follows:-
" 'estate' means any land held by an intermediary and included under one entry in any of the
general registers of revenue-paying lands and revenue,
free lands, prepared and maintained under the law for
the time being in force by the Collector of a district, ........................ "
In order to be an "estate", the land must be held by
an "intermediary" and must be included under one
en try in any of the general registers of revenue-paying lands and revenue-free lands and such general
registers must be prepared and maintained under the
-
--
I
\
S.C.R.
SUPREME COURT REPORTS
75
law for the time being in force.
Section 2(h), as it
1956.
stood then, by its earlier part, defined an "interme- R . s;.--s ·zendra
d•
"
• h
~
" t t "
t
a1a
' a•
iary , wit
re1erence to any
es a e ,
o mean, Narayan Bhanja
amongst other things, a proprietor. The plaintiff
Deo
certainly claims to be the proprietor of his land.
v.
.
Therefore if his land is an "estate" he is clearly an The State ofOrissa
'
'
"intermediary". The case of Biswambhar Singh v.
-
The State of Orissa and Others(1), which has been relied
Das C.J.
on by learned counsel for the plaintiff has no application to the present case, for that case was concerned
not with the earlier but with the latter part of the
definition of "intermediary". That the plaintiff's
land is included under one entry in the general register
of revenue paying lands is not disputed. What is
contended for is that in order to make such land an
"estate" the register must be prepared and maintained under the law for the time being in force.
There is no dispute that "the law for the time being,
in force" means the Bengal Land Registration Act
(Bengal Act VII of 1876). The plaintiff contends
that the register in which his land is included under
one entry was not prepared or maintained under the
Bengal Land Registration Act. The argument is
that it is not only necessary to show that the land is
included under one entry in a register but that it is
also necessary to show that the register where the
entry appears was prepared and maintained under
the law. Under the Bengal Land Registration Act,
1876, land can be included in the register prepared
and maintained under that Act only if such land is
an "estate" as defined in that Act. The relevant
part of that definition i.s:-
"3(2) 'estate' includes:-
( a) any land subject to the payment of landrevenue, either immediately or prospectively, for the
discharge of which a separate engagement has been
entered into with Government;
(b) ....................................................... .
(c) ............................................................ "
It is urged, therefore, that the preparation of a register
unrler that Act means the making of entries in that
(1) [1954J s.c.R. s42,
76
SUPREME COURT REPORTS
(1956]
1956
register of lands which are subject to the payment of
-
land revenue for the discharge of which a separate
Raja Sri Sailcndra
h
b
d .
L
.
.
Narayan Bhanja eng~gement as een entere mto.
and which is not
Deo
subject to payment of land revenue and for the disv.
charge of which a separate engagement has not been
The State o/Orissa entered into is not an "estate" and cannot be entered
Das C.J.
in the register prepared and maintained under the
Bengal Land Registration Act. That Act confers
powers on the Collector to prepare the register in the
manner specified therein and such statutory power;
in order to have effect, must be exercised in
strict compliance with the provisions of that Act.
The plaintiff maintains that the Rajgee of Kanika
was never subject to payment of land revenue for
the discharge of which a separate engagement had
been entered into by him or his predecessors-intitle.
That the ancestors of the plaintiff were at one time
independent chiefs and that the Rajgee or Killa of
Kanika was in ancient time an independent State are
conceded.
Later on, the Rajas of Kanika owed
nominal allegiance to the Mahrattas. Then came the
last Mahratta War and the plains of Orissa were conquered by the East India Company.
On 22nd
November, 1803, there was an "Engagement" between the East India Company and Raja Balabhadra
Bhanja Deo, the then Raja of Killa Kanika.
The
East India Company on the same day granted a
Kaool-Namah to the Raja. Under the Engagement
the Raja agreed, amongst other things, to pay, as
annual Peshkush or tribute, 84,840 Kahuns ofCowrees,
amounting to Rs. 20,407-12-11. This Engagement
was confirmed by clause 10 of the Treaty of Peace
concluded on the 17th December, 1803, at Deogan
between the East India Company and the Mahrat.tas
which treaty was later on ratified by the GovernorGeneral in 1804. On the 5th September, 1805, was
passed the Bengal Regulation XII of 1805. Sections
33 to 37 which are material for our present purpose
were as follows:-
"XXXIII.-The Commissioners having granted
sanads to certain zamindars, entitling them to hold
•
S.C.R.
SUPREME COURT REPORTS
77
their estates at a fixed jama in perpetuity, those
1956.
sanads are hereby confirmed. The following is the R .
-. -
.
~
.
f h
. d
h
h"
aJa Sri.Sailen .. ra
hat of the names o t e zamm ars to w om t is proNara:1«n Bhanja
vision is to be considered applicable:
Deo
Zamindar of Killah Darpan,
v.
Zamindar of Killah Sookindah,
The State of Orissa
Zamindar of Killah Muddoopore.
XXXIV.-The Commissioners having likewise
granted a sanad to Futtah Mohmed, jaghirdar of
Malood, entitling him and his heirs for ever, in consideration of certain services performed towards the
British Government, to hold his lands exempt from
assessment, such sanad is hereby confirmed.
XXXV. First.-The late Board of Commissioners having concluded a settlement of the land
revenue with certain zamindars, whose estates are
situated chiefly in the hills and jungles, for the payment of a fixed annual quit-rent in perpetuity, those
engagements are hereby confirmed; and no alteration
shall, at any time, be made in the amount of ·the
revenue payable under the engagements in question
to Government.
Second.-The following is a list of the mehals
to which the provision in the preceding Clause is
applicable:
Killah Aull,
: Killah Humishpore,
Killah Cojang,
: Killah Miritchpore,
Killah Puttra,
: Killah Bishenpore.
Third.-The zamindaries of Cordah and Cunka
being mehals of the description of those specified in
the preceding Clause, a settlement shall be concluded, as soon as circumstances may admit, for the
revenue of those mehals on the principle on which a
settlement has been concluded with the zamindars of
the mehals specified in the preceding Clause.
XXXVL-All Regulations relating directly or
indirectly to the settlement and collection of the
public revenue, or to the conduct of the officers
employed in the performance of that duty, whether
European or native, in the province of Bengal, which
are not superseded by the foregoing rules, are hereby
extended to, and declared to be in force in the zillah
])as c.J.
78
SUPREME COURT REPORTS
[1956]
1956
of Cuttack. Provided, however, that nothing herein
R . 5
contained shall be construed·to authorize the division
a7a rl Saile~dra f th 1 d
· d ·
t t
· th
"JI h f
Nara an Bhan ·a o
e an s comprise m any es a es in
e z1 a o
Y Deo
1 Cuttack, in which the succession to the entire estate
v.
devolves according to established usage to a single
TheStateofOrissa heir: in cases of this nature, the Courts of Justice
Das C.J.
are to be guided by the provisions contained in Regulation X, 1800. Provided, also, that nothing herein
contained shall be construed to imply, that any part
of the said Regulations are for the present to be considered to be in force in certain jungle or hill
zamindarries occupied by a rude and uncivilized race
of people with the proprietors of which estates engagements were formed by the late Board of Commissioners for the payment of a certain fixed
quit rent or tribute to Government.
The following
is the list of the names of the mehals to which this
exemption from the operation of the general Regulations is to be considered applicable.
Kill ah N eelgerry, : Kill ah Toalcherry,
Killah Bankey,
: Killah Attgurh,
Killah J oormoo, : Killah Kunjur,
: Killah
Ram pore,
: Killah
Hin dole,
: Killah
Killah NirsingTeegereah,
: Killah Kindeapara,: Killah
pore,
Killah Augole,
: Killah N eahgurh,
Burrumboh,
: Killah
Deckenaul.
XXXVII. The foregoing exemption from the
operation of the general Regulations shall likewise,
for the present, be considered to be applicable to the
lands known by the appellation of the territory of
Mohurbunge; but it shall be the duty of the Collector
of the zillah to conclude a settlement with the proprietor of the estate for the payment of a fixed annual
quit-rent, on the principles on which a settlement has
been concluded with the other hill or jungle zamindars
specified in the preceding section".
It is claimed that there was at no subsequent time
any such revenue settlement as was contemplated by
•
S.C.R.
SUPREME COURT REPORTS
79
section XXXV(3) and that there was no separate
1956
engagement for payment of any land revenue at any
. -. - .
time thereafter. The conclusion sought to be drawn ~Ja ~~:';;!"::;:
in the circumstances is that as Killa Kanika was not
ara Deo
subject to payment of land revenue, for the discharge
v.
of which a separate engagement had been entered The State of Orissa
into, it was not an "estate" as defined in Bengal Land
Registration Act, 1876, and that that being the position, it could not have been validly entered in the
register prepared and maintained under the Bengal
Land . Registration Act. The action of the Collector
in entering Killa Kanika as a revenue-paying estate
was wholly ultra vires and in the eye of the law such
an entry is a nullity and does not exist. It follows,
therefore, that Killa Kanika cannot be regarded as
an "estate" within the meaning of the Abolition Act
because the general register in which it is included
cannot be said to have been validly prepared and
maintained under the law for the time being in force.
Section 4 of the Bengal Land Registration Act,
1876, directs the Collector of every district to prepare
and keep up the four kinds of registers therein mentioned. Section 7 lays down that in Part I of the
general register of revenue-paying lands should be
entered the name of every estate which is borne on
the revenue-roll of the district and certain other
particulars relating to every such estate as therein
specified. Therefore, if the name of Killa Kanika was
borne on the revenue-roll of the district, the Collector
would be bound to enter the same in Part I of the
general register prepared and kept up by him under
section 4.
Section 20 of the Act provides that until
the registers by that Act directed to be prepared
were so prepared the existing registers then kept up
in the office of every Collector should be deemed to be
the registers kept up under the Bengal Land Registration Act, 1876. Prior to 1876, land registers used to
be maintained under the Bengal Regulation XLVIII
of 1793 as amended by Bengal Regulation VII of 1800.
Existing registers mentioned in section 20 of the
Bengal Land Registration Act, 1876, clearly refer to
registers kept under those Regulations and the learned
\,
Das C.J.
80
SUPREME COURT REPORTS
(1956)
1956
Attorney-General contends that section 20 gives a
R . 8 -. -.
statutory validity to the registers kept under those
a1a "SatlendraR
I ·
M
p RD
·
f
h
J
Narayan Bhanja
egu atlons.
r. .
.
as appearmg or t e appe -
Deo
!ant submits that his arguments apply with equal
v.
force to the registers kept under the old Regulations
The State of Orissa referred to above. According to him, if the Collector
Das C.J.
entered lands which were not "estate" as defined in
the old Regulations, he did not exercise his statutory
powers and the entry made by him was a nullity and
if any of the existing registers was void as regards a
particular entry, then that entry did not exist and
could not be transferred to the new register and if it
was transferred, such transfer was a nullity and the
new register, qua that entry, was void and could not
be said to have been prepared and maintained under
law.
We are unable to accept the line of reasoning
developed by Mr. P. R. Das.
To accede to his contention would be to add words to section 2(g) of the
Abolition Act so as to make it applicable to lands
which were "validly" included under one entry in
any of the general registers "properly" prepared and
maintained under the law for the time being in force,
that is to say, the Bengal Land Registration Act,
1876.
This the court has no power to do. If section
2(g) defined "estate" as including lands mentioned
in the schedule to the Act, then whatever was included in the 3chedule would be an "estate" within
the meaning of the Abolition Act, irrespective of
whether such land was or was not an "estate" within
the meaning of any other Act.
The same reasoning
applies when the definition includes lands entered in
-the general registers prepared and maintained under
the Bengal Land Registration Act, 1876. Here the
reference to the register prepared or kept under the
law for the time being in force was meant only to
identify the particular register in which the particular
land was included under one entry. Suppose that a
register prepared and maintained under the Bengal
Land Registration Act, 1876, included lands which
were "estates" within the meaning of the Land
Registration Act and also lands which were not
S.C.R.
SUPREME COURT REPORTS
81
"estates" within the meaning of that Act. Suppose
1956
further that the Orissa Legislature by the Abolition
. -. - . 4
A
.
d d
•
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11
h
l
d
l .
Raia Sn SadeH ,. •.
. ct mten e. to me u. e a
t ~se an s, proper Y or Nara;yan Bhan/a
improperly included m the register, what language
Deo
would they then have used? Precisely the language
v.
they have used in section 2(g) of the Abolition Act, The State ofOritis•
namely, that an "estate" means any land included in
D-~·J
the general registers prepared and maintained under
as · •
the law for the time being in, force. In other words,
the definition covers lands which are factually included in the particular register referred to. Whether
they are "estates" within the meaning of the Bengal
Land Registration Act, 1876, and whether they were
validly or properly entered according to the provisions of that Act, appears to us to be wholly irrelevant for the purpose of construing section 3(g) of the
Abolition Act. In our opinion, the contention of the
State of Orissa on this point must be accepted.
Re. (b):-Mr. P.R. Das appearing for the appellant
objects to the plea of estoppel being raised, because
it has not been included in the Statement of Case
filed in the present appeal by the respondent. Order
XVIII of the Rules of this Court deals with the lodging of cases. Under Rule 1 no party to an appeal is
entitled to be heard by the court unless he has
previously lodged his case in the appeal. Rule 3 lays
down how the case is to be vrepared and what its
contents should be. Order XIX, Rule 4 provides
that the appellant shall not, without the leave of the
Court, rely at the hearing on any grounds not speci·
fied in the Statement of-Case filed by him. The Privy
Council Practice founded on Shea Singh Rai v. Mu88U·
mut Dakho and Moorari Lall(1) and set forth in Bentwich 3rd edition Ruling 63 at page 181 is to the same
effect. There is no rule imposing corresponding disability on the respondent. Further even with regard
to the appellant the Court may, in appropriate cases,
give him leave to raise a ground not specified in the
Statement of Case. In tlie present case there is no
question of surprise, for the plea of estoppal was
pointedly raised and made the subject matter of an
(1) [1878] L.R. 5 I.A. 87.
11
82
SUPREME COURT REPORTS
(1956)
1956
issue before the High Court and was elaborately dealt
R . 5 -:--
5 .
d
with bv the High Court in its Judgment under ap-
,a1a ri atlen ra
l •I
h
.
d
.
.
Nar"""" Bl<anja pea .
n t e circumstances we
o not consider 1t
· v,0
·proper to shut out this plea of estoppel.
v.
The plea of estoppel is sought to be founded on the
The St"t' 01 Orissa compromise decree, Ex. '0' passed by the Patna High
-
Court on 2nd1May, 1945, in F. A. No. 15 of 1941. The
Das C.J.
compromise decree is utilised in the first place as
creating an estoppel by judgment. In In re. South
American and 111exican Company, Ex parte Bank of
England('), it has been held that a judgment by consent or default is as effective an estoppel between the
parties as a judgment whereby the court exercises its
mind on a contested case.
Upholding the judgment
of Vaughan Williams, J., Lord Herschell said at page
50:-
. '
"The truth is, a judgment by consent is intended
to put a stop to litigation between the parties just as
much as is a judgment which results from the decision
of the Court after the matter has been fought out to
the end. And I think it would be very mischievous
if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions
that were really involved in the action to be fought
over again in a subsequent action".
To the like effect are the following observations of
the Judicial Committee in Kinch v. Walcott and
others('):-
·
"First of all their Lordships are clear that in relation to this plea of estoppel it is of no advantage to
the appellant that the order ;n the libel action which
is said to raise it was a consent order. For such a
purpose an order by consent, not discharged by mutual
agreement, and remaining unreduced, is as effective
as an order of the Court made otherwise than by consent and not discharged on appeal".
The same principle has been followed by the High
Courts in India in a number of reported decisions.
Reference need only be made to the case of Secretary
of State for India in Council v. Ateendranath Das("),
(1) L.R. [1695] 1 Ch. 67.
(2) L.R. 1929 A.O. 462, 498.
(8) [1935) I.L.R. 63 Cal. 550, 556.
-
S.C.R.
SUPREME COURT REPORTS
83
Bhaishanker Nanabhai and others v. Morarji Keskavji
r95G
and Co. (1). and Raja Kumara Venkata Perumal Raja R 1 8-:--
8 .1 _ _..
B h d
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b
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M: W A
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d h .
a a ,., a• '""""·
a a ur, .minor y guar ian
r.
. . .,ara ac ariar Na,.ayan Bhan/a
v. Thatha Ramasamy Chetty and others(1). In the
Deo
Calcutta case after referring to the English decisions
y,
the High Court observed as follows:-
The Stau of o,.;,111
"On this authority it becomes absolutely clear
that the consent order is as effective as an order
·Daa C.J.
passed on contest, not only with reference to the conclusions arrived at in the previous suit but also
with regard to every step in the process of reasoning on which the said conclusion is founded. When
we say "every step in the reasoning" we mean the
findings on·the essential facts on which the judgment
or the ultimate conclusion was founded. In other.
words the finding which it was necessary to arrive at
for the purpose of sustaining the judgment in the parti·
cular case will operate as estoppel by judgment".
The correctness of these principles laid down in these
decisions is not disputed by Mr. P.R. Das. Proceeding on the basis that there is such a principle of
estoppel by judgment, he contends that the test laid
down in the decisions referred to above is whether the
judgment in the previous case could have been passed
without the determination of the question which was
put in issue in the subsequent case, where the plea
of estoppel by the previous judgment is raised. This
leads us to a consideration of the facts, which are
material to this question.
·
On the 4th February, 1936, the predecessor-in-title
of the plaintiff brought 'a suit (O.S. No. 7 of l936) in
the Court of the Subo.rdinate Judge of Cut tack against
the Secretary of State for India in Council, praying
for a declaration that the plaintiff had a good and
indefeasible tit1e to the beds of certain rivers, by
expressed or implied grant from the East India Comp,any, alternatively for a declaration that the plaintiff had acquired an indefeasible right and title to the
beds of the said rivers by
presc~iption or adverse
possession and for permanent injunction against the
defendant restraining him from interfering with the
·(1) [1911] I.L.R. 86 Bom. 288.
(2) [1911] I.L.R. SIS Mad. 71!.
84
SUPREME COURT REPORTS
(1956]
1956
rights of the plaintiff in the beds of the said rivers
Rafa S;;:ilendra and the churs formed .on them. The suft was founded
Narayan Bhan/a on, amongst others, the following allegations. In paraDeo
graphs 3 to 6 of the plaint were pleaded that the
v.
plaintiff's ancestors were the rulers of Killa Kanika
The State 01 Orissa owing allegiance to the Hindu Gajapati Kings of
-
Orissa and were absolute owners of all lands and
Das C.J.
waters within the ambit of their territories including
the two rivers therein mentioned and that after the
fall of the Hindu kingdom in Orissa, and during the
Afghan, Moghal and Mahratha occupation of Orissa,
the Rulers of Kille. Kanika, the ancestors of the
plaintiff continued to be the absolute owners of the
Killa including the said rivers.
In paragraph 7
of the plaint reference was made to the Engagement
and Kaoolnama of 1803, whereby the Raja was said
to have been confirmed in his Rajgee or proprietorship of the entire Killa and it was submitted that the
said grant was intended to and did, in fact, confirm
his title to the said rivers. In paragraph 9 of the
plaint, it was acknowledged that subsequently the
status of the rulers of Killa Kanika was gradually
reduced to that of a Zamindar and ·that they were
divested of all administrative powers, but it was
claimed that nevertheless, their proprietary rights in
the Killa consisting of land and water including the
disputed rivers remained intact and that the tribute
which had been fixed ·by the engagement of 1803 remained so in 'perpetuity as Peshkush payable by the
proprietors. In paragraph ·3·3 it was stated that having regard to the fact that prior to the British conquest of Orissa, the plaintiffs predecess.ors-in-title
had been independent rulers of Killa Kanika and as
such had valid title to the said rivers within their
territory and that after the British c<mquest the East
India Company confirmed the title of the then Raja
ofKanika to whatever had been in the possession of
the said Raja prior to the said conquest and maintained him in possession thereof, the plaintiff claimed
good and valid title to the beds of the said rivers by
an express or implied grant by the said East India
Company. A claim of title to the beds of the said
J
S.C.R.
SUPREME COURT REPORTS
85
rivers by prescription and adverse possession was also
1956
Pleaded by way of alternative plea. The written state- R . 5 . 5 .1 d
S
fil d
b
29 h
a1a ri ai en ra
ment of the Secretary of tate was
e on t e
t
Narayan Bhanja
May, 1936, traversing the allegations in the plaint. In
Deo
paragraph 7 it was definitely pleaded that the Raja,
v.
with whom engagement had been entered into in 1803, The State 01 Orissa
was deposed for misrule and his status was reduced to
-
that of a Zamindar as a punishment and that it was as
IJas C.J.
an act of mercy that he was allowed to retain the
estate without an enhancement of his P.eshkusb. It
was submitted that in view of the treatment of the
estate during the past 100 years, it was idle for the
plaintiff to suggest that he retained the rights comparable to those of a Ruling Chief. Reading the pleadings and. the issues raised in the case fairly and as a
whole, it appears quite clear that although the Engagement and Kaoolnama of 1803 was referred to as a
grant, express or implied, from the East India Company, the plaintiff was, in substance, founding his
claim on his antecedent title as the Ruling Chief of
Killa Kanika which, according to him, had been confirmed by the Engagement and Kaoolnama of 1803,
which were, therefore, construed as a grant, express
or implied, from the East India Company. That the
real issue on which the suit was fought out in the
trial court was whether the plaintiff was an independent Ruling Chief and as such entitled to the beds
of the rivers passing through bis territory or was a
mere Zemindar and as such having no such right is
apparent from the following passage in the judgment
of tJie Subordinate Judge:-
"It .is, therefore, too late now to suggest that the
status of the plaintiff in relation to his Killa is something higher than or superior to that of a bolder of
an estate. In my view, it is of no consequence, as
respects the point now under consideration whether
the estate is a permanently settled estate or it is a
temporarily settled estate. The question is whether
the plaintiff is the holder of an estate or it is that he
owns a State. But as I have just pointed out, a
private individua~ cannot own a State in the sense a
sovereign authority owns the same",
86
SUPREME COURT REPORTS
[1956]
1956
After referring to the Regulations of 1805 and 1806,
R . s~ Sa"le-' the learned Subordinate Judge proceeded to say:
"'1"' ~ ' ·-'"'
"Th
"t .
h
. h h
d
f h
Narayan B,,,.,.ja
. ·
us I
IS apparent t at wit t e a vent o t e
Deo
British the question of status of the plaintiff was
v.
never left in any degree of uncertainty. All these
Ti..Stateo/Ori..,. various Regulations taken together will go to estab-
~
J
lish in an unmistakable term, that the plaintiff's
• · ·
status in his relation to his Killa, was recognised
from the time of the advent of the British in Orissa
as that of a Zamindar, i.e., a holder of an estate.
That being so, in relation to these rivers, or to their
beds, the plaintiff's position shall be nothing more
than or superior to that of a riparian owner". ·
Again referring to the Engagement and Kaoolnama
of 1803 the learned Subordinatt> Judge stated as
. fe!lows:-
"Now taking these two documents together, it is
difficult to read in them that any grant was made
either expressly or~mpliedly by the.sovereign authority in favour of the holder of the Killa.
The main
provisions are that the revenue was fixed for ever,
and that the holder was asked to be loyal to the
Company's Government. Thus initially, I have been
unable to associate any idea of grant as to be flowing from these engagements. All that can be sairl,
and perhaps the learned counsel for the plaintiff
maintains to that effect, is that what rights the holder
of the Killa had, in reference to the Killa, were fully
and without any limitation or restrictioQ, recognised.
It is, therefore, that the question will now be set at
large for a discussion as to what rights the proprietor
of the Killa had at the time when these engagements
were made,,.
•
It is needless to extract further passages from the
judgment.
In the result the learned Subordinate
Judge answered the issues against the plaintiff
and dismissed the ·suit.
The plaintiff appealed to
the Patna High Court.
A compromise was arrived
at between the parties, which was filed in court and
the appeal was disposed of in accordance with the
terms of the compromise petition'.
The principal
terms of the compromise petition were as follows:-
.J
..
>
-
S.C.R.
SUPREME COURT REPORTS
87
"l. That it shall be declared that the Crown
1956
and for the matter of that, the Province of Orissa, R . 5 -:---
5 .1 a
h
.. 1
h d"
d .
b d
a1a ri at en ra
the defendant hast e tit e tot e ispute river e s, Naray~n Bhanja
as described in the schedule of the plaint, and the
Deo
plaintiff-appellant acknowledges the same.
v.
.
2. That the plaintiff-appellant, that is the Pro- The State o/Orissa
Prietor of the Kanika Estate is the ri.ghtful owner of
-.
d
h
~ d
h
Das C.J.
the fisheries of the sai rivers and t e deJ.en ant as
not nor will have any objection to his unobstructed
exclusive permanent enjoyment of the fishery rights
in th¢ said rivers at any time whatsoever.
The
respondents shall not claim nor the appellant shall
be liable to any assessment on that ground, other
than what is payable in respect of the permanently
settled estate of Killa.
3. That subject to such rights as the Crown or
in other words, the Province of Orissa has in the beds
of the rivers aforesaid and in the channel of waters
flowing thereon, the Proprietor of Kanika Estate
that is the plaintiff-appellant will have his rights to
the ferries over the said rivers which he has been so
far enjoying and except when such ferry rights interfere with the Crown's right in the bed of the
rivers and similar rights in the waters on the channel
of the rivers for the purpose of navigation and things
of the kind, the Province of Orissa will not interfere
with nor raise any objection to the plaintiff's enjoyment of such rights or ferry through the length and
breadth of the aforesaid rivers.
4. That such Chars, islands or other accretions
formed in the said rivers as have been shown in the
Civil Court Commissioner's map prepared in this suit
and now forming a part of the court's record shall be
deemed as part and parcel of the permanently settled
estate of Kanika and the defendant will not be
entitled to any further assessment in respect thereof.
5. 'That all future riparian accretions or Chars
formed adjoining the banks of the rivers in dispute
shall also be always deemed to be part and parcel of
the said permanently settled Zamindary of Kanika
and shall be so possessed by him without any further
payment on assessment of land revenue over and
88
SUPREME COURT REPORTS
(1956]
l9S6
above the land revenue that h~~ been permanently.
Raja Sri Sailendra fixed.
.
Narayan Bhanja
6. That all other islands or Chars that may be
Deo
formed subsequent hereto in the midst of the ri~er
T.
•
being cut off from the banks thereof by waters that
The Stak 01 Omsa are tidal, unfordable and navigable in all seasons of
the year shall belong to the defendant and the plainDas c.J.
tiff or his successor-in-interest will have a right to
possess and take settlement of the same from the
defendant and the latter will have the right to levy
assessment of land revenue thereon according to the
principles and provisions of law as laid down in
Regulation II of 1819 and this assessment will be of
force from the time when the islands or Chars will
appear and be capable of enjoyment irrespective of
the fact whether estate holder does really enjoy it or
not".
·The declaration of the title of the State to the disputed river beds was a clear acknowledgment by the
plaintiff of the State's sovereign rights, which necessarily negatived the sovereign rights which he asserted and claimed for himself. The declaration that
the plaintiff, as the proprietor of the Kanika estate,
was. the rightful owner of fisheries in the said rivers
and that the defendant would not claim any assessment on that ground was nothing hut a recognition
of ~he plaintiff's title a:s the holder of a permanently
· settled estate.
The same observations apply to
clause (3) whereby the plaintiff was declared to have
the ferry rights over the said rivers,. which were expressly made subject to the rights of the State in the
beds of the rivers. The provision· that all future
riparian accretions or Chars formed adjoining the
banks of the rivers would always be deemed part of
the permanently settled Zemindari of Kanika and
should be possessed by him without further payment
of assessment of land revenue over and above the
land revenue that had been permanently fixed clearly
acknowledges that the plaintiff accepted the position
that he had no rights other than what he had as the
holder of a permanently settled estate liable to the
payment of land revenue, in contradistinction to
..
'
S.C.R.
SUPREME COURT REPORTS
89
tribute fixed in perpetuity. The provisions of clause
1956
(6) of the terms of settlement also point to the same R . 8 . 8 .1 4
•
aJa n
ai en ra
conclus10n.
Narayan Bhanja
.Mr. P. R. Das contends that the issue in the preDeo
sent case is whether the land held by the plaintiff is
v.
an "estate" within the meaning of the Bengal Land The State of Orissa
Registration Act, 1876, whereas the issue in the earlier
case was whether the plaintiff's predecessors had title
to the river beds by express or implied grant from
the Crown. This does not appear to us to be a fair
reading of the pleadings as a whole. The plaint in
the earlier suit summarised above and the passages
culled from the judgment of the trial court clearly
indicate that the parties went to trial on the definite
and well understood issue that the plaintiff's claim to
the river beds was founded on his anterior title as an
independent Ruling Chief of Killa Kanika and that
that title had been confirmed by the Engagement and
Kaoolnama of 1803, which were, in a loose way, construed as a grant of the river beds, express or implied,
by the East India Company. What the parties understood by the issues on which they went to trial is
clearly illustrated by the passages quoted from the
judgment.