JUDGMENT
S.K. Mohanty, J.
1. This appeal by defendant No. 1 (State of Orissa) arises out of a reversing decree passed by the District Judge, Kalahandi. The suit properties are 4 tanks. Plaintiffs (14 in number) are the grandsons and great grandsons of one Biri Gountia who was gountia of village Kandulubandh within Junagarh P. S. in the district of Kalahandi. He excavated the 4 tanks between the years 1890 and 1917.
2. Plaintiffs sued the State of Orissa praying for declaration of title, confirmation of possession, in the alternative recovery of possession, of the aforesaid tanks, permanent injunction in respect thereof and damages amounting to Rs. 625/-. Subsequent to filing of the suit, on the prayer of defendant No. 1 and defendants 3 to 11, they were impleaded asdefendants.
3. Plaintiff’s case, in brief, was that Biri Gountia excavated the 4 tanks spending his own money on his own land and was enjoying the fish and water thereof during his life-time, which was is being continued by his grand-sons and great grandsons including plaintiffs. In the current settlement record-of-rights, the tanks have been wrongly recorded in the name of the State of Orissa and they illegally leased out the tanks to the public in the year 1973-71. Therefore the plaintiffs commenced the action praying for aforesaid reliefs after complying Sec 60 of the Code of Civil Procedure.
4. Defendant No. 1 State of Orissa. in their written statement denied plaintiffs’ title and contended that the tanks were on lands belonging to the State of Kalahandi and were in possession of the Gountia on behalf of the State as per the terms of Kabuliyat.
5. Defendant No. 2 in his written statement denied plaintiffs’ title to the suit tanks and claimed right to take water from one of the suit tanks to his lands for irrigation purpose.
Defendants 3 to 11 while adopting the written statements filed by defendants 1 and 2 also claimed right to take water to their respective lands for irrigation purpose.
6. The learned trial Court came to find that Biri Gountia only improved the tanks on the Bhogra lands belonging to ex-State of Kalahandl; and that the tanks were excavated by him on Government lands in his official capacity as Gountia while discharging his obligation to the State. On such finding, plaintiffs claim for declaration of title was negatived. On the issue relating to rights of defendants 2 to 11 to irrigate their lands from the tanks in question, the learned trial Court held that defendant No. 2 alone has the right to take water and the claim of other defendants 3 to 11 cannot be upheld because there is no evidence on their behalf and they have not contested the suit.
7. On the finding that the suit tanks were the private properties of the Gountia, the learned District Judge has allowed the plaintiffs’ appeal thereby decreeing plaintiffs. suit for title, possession and injunction. As to the claim of defendant No. 2 to take water from the tanks to his lands, he has held that this being beyond the scope of the suit, his right thereon cannot be decided and if any such right exists, it would be attached to the tanks.
8. Miss Ghose for the appellant attacked the appellate judgment on two grounds ; firstly, she argued that Lingaraj Goud, who was shown as respondent No. 18 in the second appeal was respondent No. 6 in the Title Appeal and defendant No. 6 in the Original Suit. Ha died in February, 1982 during pendency of the Title Appeal, which was disposed of in October, 1983. In the circumstances/the Title Appeal abated as a whole and the trial Court decree has become final. The second ground of attack was that the plaintiffs have signally failed to prove their title to the suit tanks.
Mr. Mukherjee for respondent No. 15 (defendant No 2) supported the argument from the side of the appellant.
Counsel for the plaintiffs did not dispute the fact of death of Lingaraj Goud during pendency of the Title Appeal. Hi, however, contended that Order 22, Rule 4(4) of the Code of Civil Procedure applied to the facts of the case and therefore the Title Appeal did not abate against Lingaraj, he having not contested the suit and not appeared in the Title Appeal. At any rate, it is contended the Title Appeal did not abate as a whole. On the point of title to the suit tanks, he submitted that the plaintiffs had satisfactorily proved the same.
9. The question of statement may be first taken up. Before referring to the decisions cited on either side, certain more facts need be stated. On 16-10-1979, defendant Nos. 3 to 11 filed their written statement, but they did not appeal when trial of the suit was taken up. Appeal notice was served personally on respondent No. 6, but he did not appear and was set ex-parte by order dated 24-6-1980. Thereafter he died in February, 1982 and ultimately the plaintiffs’ appeal was allowed in October, 1983, without his legal representatives being brought on record. In such premises, learned counsel for the plaintiffs respondents argued that Order 22, Rule 4(4), CPC squarely applied and the Judgment in the appellate Court could be pronounced notwithstanding the death of Lingaraj. Mr. Mukherjee for respondent No. 15 on the other hand argued that to attact aforesaid sub-rule, there must be an order of exemption either suo motu by the Court or on the prayer of the appellant before the period prescribed for bringing the , legal representatives on record expired and there being no such order by the appellate Court, the sub-rule could not apply. In support of his argument, Mr. Mukherjee placed reliance on the decisions of this Court in (i) Laxmidhar Panda v. Satyabadi Behera : AIR 1964 Ori. 39, and (ii) Dhruba Bhoi v. Brundabati Bhoiani: AIR 1973 Ori. 55.
10. At this stage it may be stated that Sub-rule (4) of Rule 4 of Order 22 was inserted by the 1976 Amendment Act. Prior thereto the Orissa Amendment of this Rule was on similar lines. With reference to Orissa Amendment it has been held by this Court in Laxmi Charan Panda (supra) that the Court’s power to dispense with substitution under the Orissa Amendment to Sub rule (4) can be exercised only before abatement takes place and not altar. Once abatement takes place on expiry of 90 days from the date of death, the discretion given to the Court to invoke the provisions of Sub-rule (4) Cannot be exercised. This decision was followed in Dhruba Bhoi (supra) wherein it has been held that an application for waiving substitution can be made only before abatement sets in that is, in case the application is made within 90 days from the date of death. But the view taken in the above two Single Bench decisions has been specifically overruled by this Court by a Division Bench in Indramani Behera and Ors. v. Darbar Naik and Ors. : 1983 (11) OLR 241. Consequently, it is no longer correct to say that examption under Order 22, Rule 4 (4) cannot be allowed after abatement has set in.
11. In the case at hand admittedly there is no order of exemption so far as bringing the legal representatives of Lingaraj on record in the Title Appeal as concerned Now the question arises what is the effect ? Learned counsel for plaintiffs respondents relying on the provisions of Order 22. Rule 4 (4) and Order 22. Rule 11, CPC submitted that the appellate Court by hearing the appeal without substitution of the legal representatives of respondent Lingaraj is deemed to have exempted the appellant from necessity of substitution inasmuch as he had failed to appear and contest the appeal at the hearing in support of the argument, reliance is placed on the decision of this Court in State of Orissa v. Basudev Sahu ; 71 (1991) CLT 425. This is a Single Bench decision wherein it has been held that the principle that plaintiff can be exempted from the necessity of substituting legal representatives if the conditions of Sub-rule (4) of Order 22, Rule 4 are satisfied even after expiry of period of limitation for substitution notwithstanding that the suit has abated against the deceased defendant, is applicable to appeals This decision runs counter to the earlier decision of this Court in Laxmicharan Panda (supra) wherein Hon’ble G. K. Mishra J. (as he then was) has held that though under Order 22, Rule 11. a suit means an appeal, so far as may be, the word suit’ used in Sub-rule (4) must necessarily mean in the context only suit 3nd not appeal. This decision has not been noticed in the latter decision in State of Orissa v.Basudev Sahu (supra). The words ‘so far as may be’ occurring in Rule 11 of Order 22 clearly mean that the word ‘plaintiff’ occurring in all the Rules in the Order are not to be held to include an appellant, the word ‘defendant’ a respondent and the word ‘suit’ an appeal. I am, therefore, inclined to follow the earlier view expressed in Laxmicharan Panda Consequently hold that Order 22, Rule 4(4) has no application to appeals and therefore, plaintiffs cannot take shelter under this provision for not bringing on record the legal representatives of Lingaraj in the Title Appeal. Necessarily, therefore, it has to be held that the Title . Appeal against Lingaraj abated.
12. Now the question arises whether Title Appeal abated as a whole. According to Miss Ghose and Mr. Mukherjee, it abated as a whole. For a determination on this point, the facts of the case are to be kept in mind. The suit was principally one against the State of Orissa for declaration of plaintiffs’ title. Defendants. 2 to 11 got themselves impleaded as defendant and claimed right to take water from the suit tanks to their respective lands for irrigation purpose. In the trial Court the right of defendant No, 2 alone to take water was upheld and the claim of other defendants was not upheld as there was no evidence on their behalf and they had not contested the suit, in appeal it was hold that right of defendant No. 2 to take water was beyond the scope of the suit and if any such right existed it would be attached to the tanks. Thus, as the matter stands, the right of defendant No. 6, if any, was not accepted in the trial Court and was not denied in the appellate Court and in fect plaintiffs made no allegation against defendants 2 to 11. In other words reversal of trial Court decree in appeal has not given rise to the conflicting decrees so as to hold that the Title Appeal abated as a whole. Mr. Mukherjee relied on the decisions in Laxmicharan Panda (supra) and Nilamani Dhal v. Radhamohan Jew Thakur ; AIR 1967 Orissa 6 in support of his argument that the Title Appeal abated as a whole. In Laxmicharan Panda the suit was one for ejectment and permanent injunction and all the defendants were characterised as joint tortfeasors. One of the defendants died during pendency of the Second Appeal. His legal representatives were not substituted. In this background it was held that the Second Appeal abated because if it is allowed against the deceased defendant, there would be two inconsistent decrees. In Nilamani Dhal (supra) the suit was for declaration that the suit properties were Debottar properties of family deity and that plaintiffs and defendants were joint Sebayats of deity and for possession. The suit was dismissed. Plaintiffs filed the appeal. One of the defendants died during pendency of the appeal. His legal representatives were not substituted. It was held that the appeal being against joint decree, it abated as a whole as it could not proceed against other respondents alone.
In the case at hand the defendants were not sued as joint tortfeasors and the decree passed by the trial Court was not a joint and indivisible one. Consequently, aforesaid two decisions can have no application to the facts of the case .Concluding it is held that although the Title Appeal abated against Lingaraj, it did not abate as a whole.
13. Now the merits of the plaintiffs claim may be examined The earliest document in support of plaintiffs’ claim is Ext. 1, the certified copy of improvement List of the suit village during 1920 settlement Mr. R. K. Ramadhyani, I.C.S. prepared a report on Land Tenures and the Revenue System of Orissa States. His report is being referred to in litigations of the ex-State areas. It is stated therein that in 1904 a Partial survey of the State of Kalahandi was made and in 1922 a new settlement was made. It is thus apparent that Ext. 1 was prepared during the settlement operations by about 1922. Ext. 1 shows that Biri Gountia improved four water reservoirs (two of which have been described as Katas and the other two as Randhas) between 1890 and 1917 The heading of Col. 3 in the name of the person who has improved and if he was the Gountia or the raiyat. Herein the name Biri Gountia has been stated. The heading of Col.6 is whether the family of present Gountia has done it or some other Gountia did it. In this column it is stated that Biri Gountia had himself done it. It is thus apparent from Ext. 1 that the four tanks were improved by Giri Gountia himself, not by any of his predecessors nor by any raiyat. It is, however, admitted in the written statement filed by the State that it is Biri Gountia who excavated the tanks. Now, therefore, the essential question arises on whose land the tanks were excavated.
14. To understand the Land Tenure in the State of Kalahandi it is now necessary to refer to some parts of Ramadhyani’s Report. It is stated herein that there was no revenue law in the State and relation between the State and the Gountia and ryots was regulated by the terms of the lease granted to the Gountia. The Gountia held land appertaining to his office as bhogra. Formerly bhogra was held rent free and later the Gauntia was entitled to a ‘drawback’ on the assets of the village. In paragraph 30 at page 114 of the report it is stated that a Gountia had the right of disposal of waste land, abandoned or surrendered holdings and house sites. He was required to maintain a rest house, the village roads, tanks, etc. in good order, which he used to get done through the ryots It is further stated that ryots can make tanks in their lands and Gountias had in many cases built tanks or katas (ponds) in their villages. It cannot be said to what extent this was done by begat taken from ryots; it may be taken for certain that begat has played a large part but the tanks are alt recorded as the private property of the Gountia.
15. Learned counsel for the plaintiffs placed reliance on aforesaid paragraph 30 of the report in support of his argument that the suit tanks were the private property of Biri Gountia. We. however, admitted that if the tanks here found to have been constructed either on bhogra land or on waste land, then they cannot be the private property of Biri Gountia. Therefore, if in fact the tanks have been constructed on any such land, then they certainly belonged to the State Administration, particularly when begar has played ? large part in building the tanks as stated in the Ramadhyani’s Report. This apart, the plaintiffs have not proved any document to show that the tanks in question had been recorded as private property of the Gountia and Ext. 1 cannot be pressed into service to give such a meaning. As stated in the aforesaid report, the relation between State and the Gountia was regulated by the terms of the lease granted to the Gountia. Plaintiffs did not take any steps to prove that the terms of lease granted to Biri Gountia authorised him to build tanks in the village on any land and become owner of the same.
16. The appellate Court has quoted Clauses 23 and, 24 of the Gountia Patta issued in 1922-23 settlements found in a book containing the final report of the land revenue settlement in Kalahandi district of the year 1946-56 prepared by the Settlement Officer. This book was not made available to this Court at the hearing. Clause 23 as quoted provided that Gauntia will keep all tanks and katas in proper repair and in case the water is required for irrigation of fields, he will distribute it among the raiyats free of tax. Clause 24 provided that the Gountia can make tanks in his bhogra and Khudkast lands and royats can make tanks in their own holdings without permission. But for the construction of a , tank on land forming part of the village waste the permission of the State authorities is required. It is observed by the learned District Judge that Khudkast Iands is mostly the characteristic of rayati land which was assessed to land revenue and if the tanks are excavated Khudkast lands of the Gountia, certainly the State would not have any right over the same casting the onus on the State, the learned District Judge observed that the State has not shown that the suit tanks had been excavated on bhogra lands. Ultimately, the learned District Judge observed that it might have so happened that the tanks had been excavated in ‘Khudkast’ lands and reversed the decision of the trial Court, Ramadhyani’s report has not used the word ‘khudkast’ in respect of any land. The meaning of the word ‘Khudkast’ as stated by the Apex Court in Hari Prasad Singh v. Deontraia Prasad, AIR 1956 SC 306 is personal cultivation, and that is a natural expression, which might include both private lands and rayati lands which had come into the possession of the proprietor by surrender, abandonment or otherwise. In the case at hand, it is admitted by counsel for both the parties that the Gountia had no private land. Therefore, khudkast land in the hand of Gountia must be taken as meaning raiyati lands, which have come into his possession as proprietor, by surrender, abandonment or otherwise. In fact, it is stated in Ramadhayani’s report that the lands abandoned or surrendered are at the disposal of the Gountia. It seems such lands are khudkast lands in the hand of the Gountia and he had only power of disposal over the same. Therefore it cannot be said that such lands were the private property of the Gountia. Moreover, it is stated in the report that the surrendered holdings if belonging to an aboriginal or certain low caste person must be re-allotted only to a person of that class, otherwise it should remain fallow and Gountia cannot cultivate himself or give it to his relations unless be belongs to that class. In other words, if the holdings belonging to aboriginal or certain low castes are surrendered, they can only be re-allotted to a person of that class and if holding belonged to any other class is surrendered, it will remain fallow unless the Gountia belonged to the same class as the person surrendering, in which case, he can cultivate them. Thus, in respect of some surrendered holdings the Gountia had only the right to cultivate. This cannot mean that thereby these holdings became the private land of the Gountia. In other words khudkast lands are not private lands of the Gountia. Even it there were evidence to come to a finding that the suit tanks were dug on khudkast lands, it cannot be held that they are the private lands of the Gountia family. Before concluding, it may be stated that PW 1 Minaketan Bag, who is none else but plaintiff No. 13 himself was constrained to admit in cross-examination that his rights are extinguished in respect of the suit tanks. He obviously means extinguishment by operation of provisions in Orissa Estates Abolition Act, 1951.
17. In the light of the discussions in the foregoing paragraphs, there can be no doubt that the plaintiffs have Utterly failed to prove that Biri Gountia was the owner of the suit tanks and that the plaintiffs have inherited the same. Consequently, the plaintiffs had no cause of action for which the suit must fail.
18. In the result, the appeal by the State of Orissa is allowed and the impugned judgment and decree passed in appeal are set aside, In the special facts of the case, parties shall bear their own costs throughout.