JUDGMENT
A. Pasayat, J.
1. Petitioners call in question legality of the order of the Commissioner, Land Records and Settlement, Orissa, Cuttack (in short, ‘the Commissioner’), passed under Section 15 of the Orissa Survey and Settlement Act, 1958 (in short, ‘the Act’) holding that petitioners’ note of possession could not have been recorded while preparing the settlement records. The Executive Officer, Cuttack Municipality (opp. party No. 2) had filed the revision against recording of possession note in respect of plot Nos. 201, 202, 207 and 211 under Hal Khata No. 157 relating to Cuttack town unit No. 21, Ranihat in Settlement records recorded and finally published in favour of the Municipality. Stand of the Municipality was that it being the owner of the aforesaid plots and the Hal Record-of-rights (in short, ‘the ROR’) having been prepared accordingly, note of possession in respect of the present petitioners, and 11 others should be deleted. Stand of present petitioners and 11 others who were opp. parties before the Commissioner was continued possession in respect of suit plots for more than 30 years, and payment of tax to the Municipality. They claimed to have acquired title by adverse possession and, therefore, according to them, the note of possession as recorded in the ROR was to be continued. The Commissioner disposed of the matter with the following observations :
“The revenue Courts are not competent to confer title on adverse possession. Title belongs to the Municipality and it is not necessary to record the note of possession whether the possession is legal and with the consent of the Municipality or illegal, since there is no joint ownership or right share of the O. Ps.”
2. Stand of the petitioners in this writ application is that the Commissioner has not taken note of Rule 21 of the Orissa Survey and Settlement Rules, 1968 fin short, ‘the Rules’) which requires the name of each tenant or occupant to be recorded, in addition to other particulars, when the order is made under Section 11 of the Act. Learned counsel for the Municipality, on the other hand, submitted that settlement authorities were only required to record the name of owner of the land, and even if a person is found to be in possession his name need not be recorded. According to him, Rule 21 cannot be too narrowly construed.
In the counter-affidavit filed by the State its stand is that Rule 21 if interpreted correctly will lead to the conclusion that recording of forcible possession (which will mature to adverse possession and is on interest in land) may be recorded in the remarks column of the ROR, or the possession of the tenant who is declared as such by the competent Court having interest in land may be recorded in the remarks columns of the ROR. It is further stated that permissive possession in land can be recorded in the ROR. However, reference has been made to a circular issued by the State Government directing that note of forcible possession should not be recorded, and the settlement authorities should not record such possession without any title to the land, to avoid unnecessary litigation.
3. It is fairly accepted by the counsel for the parties that if Rule 21 permits recording of note of possession any circular to the contrary would not be operative. In essence the scope and ambit of Rule 21 fall for consideration in this writ petition. A few other provisions having relevance need to be noticed along with Rule 21. The power to issue direction for preparation of Record-of-rights is vested in Government under Section 11 of the Act. Sub-section (5) of the said section provides that the Khatian shall show such details as may be prescribed. Relevant rules prescribed are Rules 21 and 22.
Section 11 (5) and Rules 21 and 22 read as follows :
” Section 11 (6) : The record of-rights shall comprise of–
(a) The khewat which shall show the character and extent of proprietary interest and may also show the particulars of other rent receiving interests ; and
(b) The khatian which shall show such details as may be prescribed.”
“Rule-21. Particulars to be recorded–Where an order is made under Section 11, the particulars to be recorded shall be specified in the order may include either without or in addition to other particulars, all or any of the following, namely :
(i) the name of each tenant or occupant,
(ii) the class to which each tenant belongs,
(iii) the situation and extent of the land held by each tenant or occupant.
(iv) the name of the landlord of each tenant,
(v) the name of each proprietor and landlord,
(vi) the rent and charges of irrigation payable by each proprietor, landlord, tenant or occupant,
(vii) if the rent is a gradually increasing rent, the time at which and the steps by which it increases,
(viii) the use of water for agricultural purposes whether obtained from a river, tank or well or any other source of supply and the repair and maintenance of works for securing supply of water for the cultivation of the land held by each proprietor, landlord, tenant or occupant, whether or not such works be situated within the boundaries of such land,
(ix) the special conditions or incidents, if any, the tenancy,
(x) any right or way or other easement attached to the land,
(xi) if the land is claimed to be held rent-free whether or not rent is actually paid, and if not paid, whether or not the occupant is entitled to hold the land without payment of rent, and if so entitled, under what authority.
Rule-22, Khatian–For every interest in land, there shall be a separate Khatian for each person interested, or each group of persons jointly interested and not recorded in the Khewat and each such Khatian shall show such petitioners of rights and liabilities of each person or group of persons, as the case may be, as are required to be recorded under all clauses of Rule 21 except under Clause (vii) of the said rules :
Provided that the particulars covered by the said clause shall be shown in separate Khatian to be prepared for each source of irrigation.
4. Particulars to be recorded in the ROR are required to be specified in an order made under Section 11, and in addition to the other particulars which may be specified in the order the particulars detailed in the Rule 21 have to be recorded. Said rule contemplates recording of name of the occupant, situation and extent of land held by the occupant. Besides, under Rule 22 a separate Khatian is required to be prepared in respect of every interest in the land for each person interested or each branch of person jointly interested and the Khatian is to show the particulars of the right and liability of each such person and group of persons as required under the different clauses of Rule 21, except Clause (viii) thereof. An entry regarding possession is a necessary implication in preparation of the ROR. Making an entry regarding possession while preparing the ROR also falls within the compass of the Rules 21 and 22 of the Rules. Similar view was taken by a learned Single Judge of this Court in Kishore Chandra Das v. Gouranga Das and Ors. : 62 (1986) CIT 322, 1986 (II) OLR (NOC) 27. The view expressed has our concurrence. Entries in the settlement records do not either create or extinguish title but however the presumption under Section 13 of the Act is that the entry in the Record-of-rights shall be presumed to be correct until it is proved by evidence to be incorrect. The presumption so created is thus not regarding creation of any right or title, but is only a presumption regarding a fact which may be proved otherwise to be wrong.
6. The learned counsel for the Municipality submitted that any person who is in possession cannot be created to be occupant. According to him expression “occupant” as appearing in Rule 21 means an occupancy tenant. We find no substance in the plea. The word has not been defined either in the Act or Rules. It means a person holding the land in possession or actual enjoyment. It signifies occupancy or enjoyment. AN occupant is a person who is in possession of a thing. Even a trespasser having no legal title but claiming right to occupy land on his own behalf is an occupant. Occupant is one who occupies, or takes possession, one who has the actual use or in the possession of a thing, one who takes possession or controls things actually. The name of a person in possession has to be recorded in terms of Rule 21.
7. The Commissioner does not appear to have dealt with these aspects but has merely held that the note of possession has to be deleted from the ROR. He has not gone into the factual aspect regarding possession which were placed by the parties before him. We, therefore, set aside the impugned order (Annexure-6). The Commissioner shall permit the parties to place materials in support of their stands regarding possession and pass appropriate order.
8. The writ application is accordingly disposed of. No costs.
Dipak Misra, J.
I agree.