Orissa High Court
Tarachand Agrawal vs State Of Orissa And Another ......... ... on 18 May, 2018
Author: S.K.Mishra
Bench: S.K.Mishra
ORISSA HIGH COURT: CUTTACK
WRIT PETITION (CIVIL) No.11433 of 2003
In the matter of an application under Article 227 of the Constitution
of India.
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Tarachand Agrawal ......... Petitioner
-versus-
State of Orissa and another ......... Opposite Parties
For petitioner : M/s. Abhaya Ku. Mahakud,N.C. Pati,
S. Mishra, N. Singh, A Das, S. Mantry,
A.K. Sharma, S.K. Acharya,M.K. Panda
& N.K. Das
For oppo. parties : Mr. S.Ghosh & S.N. Mohapatra,
(For the Opposite Party Nos.5 to 10)
Mr. S. Dash (A.S.C.)
(For the Opposite Party Nos.1 to 4)
PRESENT:
THE HONOURABLE SHRI JUSTICE S.K.MISHRA
Date of hearing 16.01.2018 and judgment: 18.05.2018
S.K.Mishra, J. The following questions arise for determination in this
case:- (I) Whether the order passed by the learned Joint
Commissioner, Consolidation and Settlement, Sambalpur was wrong
in condoning the delay in filing the revision application under Section
36 of the Orissa Consolidation of Holdings and Prevention of
Fragmentation of Land Act, 1972, hereinafter referred to as the 'OCH
& PFL Act' for the brevity? (II) Whether the learned Joint
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Commissioner was wrong in not accepting the affidavit filed by the
predecessor of interest of opposite party nos.5 to 10 before the
Appellate Authority i.e. the learned Deputy Director, Consolidation,
Sambalpur as the said document is not in the light of a compromise
petition or an agreement to the parties and further holding that it
cannot be used as an evidence unless court has directed so, under
the provisions of the Code of Civil Procedure, 1906? (III) Whether the
petitioner has perfected the title over the land in question by way of
adverse possession? (IV)Whether the essential ingredients
constituting prescription of title by way of adverse possession has
been adequately pleaded and proved in this case? (V) Whether the
Deputy Director, Sambalpur being the Appellate Authority sitting in
appeal over a matter decided by the Consolidation Officer can in
exercise of powers under Section 49 of the Act decide the matter as if
he is disposing the case by the Asst. Consolidation Officer, which
empowers the Asst. Consolidation Officer to dispose objection on
consent under Section 10 of the O.C.H. & P.F.L. Act? (VI) Whether
the petitioner is at liberty to take a fresh plea in a writ petition though
on the face of the record, there is no such plea at the court of first
instance or at the appellate stage or the revisional stage that the land
originally was recorded in the sabik settlement in the name of
predecessor of interest of the petitioner and if at all such plea is
allowed to be taken what is consequence of such plea?
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2. The petitioner, being the appellant in Appeal Case
No.87/83 of the court of the Deputy Director, Consolidation,
Sambalpur has assailed the order passed by the learned Joint
Commissioner Settlement and Consolidation, Sambalpur in
Consolidation Revision Case No.31/1990 decided on 07.08.2003
whereby the learned Joint Commissioner set-aside the reversing
order passed by the learned Deputy Director, Consolidation,
Sambalpur. The Deputy Director, Consolidation has directed on the
basis of an affidavit filed by the predecessor of interest of the
contesting opposite parties before him to record the land in question
in the name of the present petitioner. The subject matter of the
dispute is L.R. plot no.3656 measuring Ac.0.04 dec. appertaining to
L.R. holding No.339 of village Attabira in the district of Bargarh. It
corresponds to a portion of plot no.3456 under the major settlement
holding No.706. The land was recorded in the sabik measure
settlement in the name of Narasingha Mishra. It is the case of
revision petitioner before the learned Commissioner that in the year,
1973 he permitted the O.Ps. and his brother Sajan Kumar, on their
request, for construction of one shop room to operate a medical
store. The said lease was to determine after a lapse of ten years i.e.
by the year 1983. The consolidation operation started and the
notification under Section 3(1) of the Act was published in the year
1978-79. In the said consolidation operation, the Land Registered
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was published under Section 9(1) of the Act. Though, the suit land
was recorded in the name of late Narasingha Mishra there was a note
of forcible possession in favour of the petitioner in the remarks
column. Therefore, Narasingha Mishra filed objection case bearing
No.1737/321 to delete the remarks of possessions of the petitioner
from the record. The objection case was disposed of by the
Consolidation Officer. Though, the Consolidation Officer found that
Narasingha Mishra has title and ownership with respect to the land in
question, he did not pass any order for deletion of the note of forcible
possession from the record of rights. No objection case was initiated
by the present petitioner before the Consolidation Authority but he
being aggrieved by order passed by the Consolidation Officer
recording the suit land in the name of the late Narasingha Mishra and
not deleting the name of the present petitioner from the remarks
column, has filed an appeal before the Deputy Director,
Consolidation, Sambalpur. It is argued before the Commissioner that
during pendency of the said appeal an affidavit was fraudulently
obtained and it was produced before the Appellate Authority and on
the basis of the said affidavit, the appellate court allowed the appeal
and declared the title over the suit land in favour the petitioner,
under the colour of agreement/compromise. This order passed by the
learned Deputy Director, Consolidation, Sambalpur on 27.10.1984
was challenged before the Joint Commissioner, Settlement
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Consolidation, Sambalpur in the year, 1990 i.e. approximately after
five years of pronouncing of judgment. The first issue that comes to
be decided in this case is whether learned Joint Commissioner was
correct in condoning the delay of five years in filing the revision
application before the learned Commissioner. Firstly, this Court takes
note of the judgment pronounced by the Hon'ble High Court in the
case of Collector Land Acquisition Anantnag vs. Mst. Katiji, AIR
1987 Supreme Court 1353, wherein the Supreme Court has given the
following directions to the lower court for deciding the issue of
condonation of delay:
1. Ordinarily a litigant does not stand to benefit
by lodging an appeal late.
2. Refusing to condone delay can result in a
meritorious matter being thrown out at the very
threshold and cause of justice being defeated.
As against this when delay is condoned the
highest that can happen is that a cause would
be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does
not mean that a pedantic approach should be
made. Why not every hour's delay, every
second's delay? The doctrine must be applied in
a rational common sense pragmatic manner.
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4. When substantial justice and technical
considerations are pitted against each other,
cause of substantial justice deserves to be
preferred for the other side cannot claim to
have vested right in injustice being done
because of a non-deliberate delay.
5. There is no presumption that delay is
occasioned deliberately, or on account of
culpable negligence, or on account of mala
fides. A litigant does not stand to benefit by
resorting to delay. In fact he runs a serious
risk.
6. It must be grasped that judiciary is
respected not on account of its power to
legalize injustice on technical grounds but
because it is capable of removing injustice and
is expected to do so.
3. The learned counsel for the contesting opposite parties
also relies upon the judgment rendered by the Single Bench of this
Court in the Case of Prakash Chandra Das and others vs. Labour
Commissioner and Another, 1997 (II) OLR 478, wherein, this
Court took into consideration the judgments of the Hon'ble Supreme
Court in the cases of State of Haryana vs. Chandra Mani and
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others, AIR 1996 SC 1623 and Urban Improvement Trust vs.
Poonam Chand, AIR 1997 Rasjasthan 134 and laid down the
following principles :
(i) It is not necessary that the applicant has to
explain whole of the period between the date of
the judgment till the date of filing the appeal. It is
sufficient that the applicant would explain the
delay caused by the period between the last of the
dates of limitation and the date on which the
appeal is actually filed.
(ii) What constitute sufficient cause cannot be laid
down by hard and fase rules and would depend
upon the fact and circumstance of each case.
(iii) The expression "sufficient cause" should receive a
liberal construction so as to advance the cause of
substantial justice. If the refusal to condone the
delay results in grave miscarriage of justice, it
would be ground to condone the delay.
(iv) A party should not be deprived of the protection
of Section 5 unless there is want of bona fides.
(v) There is no presumption that delay is occasioned
deliberately or on account of culpable negligence
or mala fides.
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4. Thus, it is apparent from the aforesaid judgment that a
litigant does not prefer an appeal or revision late deliberately. Hence,
refusing to condone delay may resulting nipping a meritorious matter
at the bud, which is against the General conscience of the Courts in
India. The expression sufficient cause receives a liberal construction
so as to advance the cause of substantive justice. If refusal to
condone the delay results in grave miscarriage of justice, it would be
ground to condone the delay and unless it is seen that the party
seeking condonation of delay have acted with mala fide. Then the
presumption of bona fide should be raised and delay should be
condoned.
5. The learned Joint Commissioner was very much alive
to the case of the parties and having heard learned counsel for the
present petitioner and the contesting opposite parties has used his
discretion to come to the conclusion that delay should be condoned.
It is a finding of fact, which is normally not disturbed in a writ in
exercise of certiorari jurisdiction. So, this Court is of the opinion that
no illegality has been committed by the Joint Commissioner while
condoning delay in filing the revision under Section 36 of the Act.
6. The next aspect of the case is the most vital in this
case. It is apparent from the record that an appeal was filed by the
present petitioner before the Deputy Director, Consolidation,
Sambalpur, wherein the late Narasingha Mishra filed an affidavit inter
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alia stating that the present petitioner was in possession of land in
question continuously for a period of twelve years and have duly
perfected adverse possession over the suit plot and that he does not
claim or shall raise any objection, if any order is made by the Deputy
Director, Consolidation, Sambalpur in the aforesaid appeal case to
record the title of the said plot in the name of Tarachand Agrawal.
Now, the question arises whether such an affidavit is admissible and
can be formed basis for deciding a lis. At the outset, learned counsel
for the opposite parties contended that affidavit is not a part of
pleadings. He also contended that it is not a part of evidence. He
drew attention of the Court to Section 1 of the Evidence Act, 1872
and contended that by virtue of Section 1, this Act does not apply to
affidavits presented to any court or officer. Hence, it is contended
that such affidavit on the basis of which decision was taken by the
Deputy Director is not at all admissible as evidence. He also relies
upon the two judgments, one of the Supreme Court, another of the
Delhi High Court. In the case of Smt. Sudha Devi vs. M.P.
Narayanan and others, AIR 1988 Supreme Court 1381, the Hon'ble
Supreme Court has held that the affidavits are not included in the
definition of evidence in Section 3 of the Evidence Act and can be
used as evidence only for sufficient reason court passes an order
under Order XIX Rule 1 or 2 of the Code of Civil Procedure. The
Hon'ble Supreme Court was in seisin of the matter while considering
10
the admissibility of the statement and rejection thereof on the ground
that the witness has not disclosed his concern with the suit property
or his relationship with the parties. A document was filed in the shape
of an affidavit which shows some relationship of the plaintiff with the
witness. The said affidavit was refused to be taken into consideration
by the Hon'ble Supreme Court.
7. In another case, the Delhi High Court in the case of
Prakash Rai v. J.N. Dhar, AIR 1977 Delhi 73 has taken into
consideration the definition of evidence as appearing in Section 3 of
the Evidence Act. It is appropriate on my part also to take note of the
definition of evidence. It read as follows:
Definition of 'evidence' has been given in Section
3 of the Indian Evidence Act in the following
words:-
(1) all statements which the Court permits or
requires to be made before it by witnesses, in
relation to matters of fact under inquiry;
Such statements are called oral evidence:
(2) all documents produced for the inspection of
the Court;
Such documents are called documentary
evidence".
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8. Interpreting this provision, the Delhi High Court in
Prakash Rai v. J.N. Dhar (supra) has held that as regards the
affidavit, copies of such document cannot be taken in evidence.
Affidavits are not included in its definition of appearing Section 3 of
the Indian Evidence Act. The Delhi High Court further held that on the
contrary, affidavit has been excluded by virtue of Section 1 of the
Indian Evidence Act. Therefore, affidavit can be taken in evidence
under any provisions of this statute. However, there are some
exceptions of the aforesaid rule as argued by Mr. Mahakuda, the
learned counsel for the petitioner. He places a lot of reliance on the
Full Bench judgment of the Allahabad High Court in the case of
Ajodhya Prasad Bhargava v. Bhawani Shanker Bhargava, AIR
1957 Allahabad 1. Considering the two questions, the Full Bench has
referred it to the Bench of lesser forum. The two questions are re-
produced as follows:
(1) Where in a civil suit a party produces documents
containing admissions by his opponent, which
documents are admitted by the opponent's
counsel, and the opponent enters the witness-
box, is it obligatory on the party who produced
those documents to draw in cross-examination
the attention of the opponent to the said
admissions before he can be permitted to use
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them for the purpose of contradicting the
opponent?
(2) Can be party producing these documents be
permitted under Section 21, Evidence Act, to
use them as substantive evidence in the case
without drawing in cross-examination the
attention of the opponent to those admissions?
9. Relying on the paragraph 57 of the said judgment, the
learned counsel for the petitioner submits that an admission is
concession or voluntary acknowledgment made by a party or
someone identified with him in legal interest of the existence of
certain facts which are in issue or relevant to an issue in the case.
The pre-dominate characteristic of this type of evidence consists in its
binding character. Having said thusly Hon'ble Allahabad High Court
further said that admissions are broadly classified into two categories:
(a) judicial admission (b) extra-judicial admission. Judicial admissions
are formal admissions made by a party during the proceedings of the
case. Extra-judicial admissions are informal admission not appearing
on the record of the case. Judicial admissions being made in the case
are fully binding on the party that makes them. They constitute a
waiver of proof. They can be made foundation of the right of the
parties. However, the Full Bench of Allahabad High Court further held
that they are concerned with the extra-judicial or informal
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admissions. They are also, in the opinion that of the Full Bench of
Allahabad High Court, binding on the party against whom they are set
up. Unlike judicial admissions, however, they are binding only
partially and not fully, except in cases where they operate as or have
the effect of estoppels in which case again they are fully binding and
may constitute the foundation of the rights of the parties. So, the
judgment relied upon by Mr. Mahakud is also not supporting his case
at hand. Moreover, the question that has referred to the Full Bench is
not regarding the extra-judicial admission and whether the same can
be made foundation for giving a particular finding by judicial
authority. The questions were regarding confronting the same of the
witness, who enters the witness-box before proving the same and
that has been answered by the Full Bench as follows:
Question No.1: Where in a civil suit of party
produces documents containing admissions by
his opponent, which documents are admitted by
the opponent's counsel, and the opponent enters
the witness box, it is not obligatory on the party
who produces those documents to draw in cross-
examination the attention of the opponent to the
said admissions before he can be permitted to
use them for the purpose of contradicting the
opponent provided that the admissions are clear
14
& unambiguous but where the statements relied
on as admissions are ambiguous or vague it is
obligatory on the party who relies on them to
draw in cross-examination the attention of the
opponent to the said statements before he can
be permitted to use them for the purposes of
contradicting the evidence on oath of the
opponent.
Question No.2: The party producing these
documents can be permitted under Section 21,
Evidence Act to use them as substantive
evidence in the case without drawing in cross-
examination the attention of the opponent to
those admissions.
10. In course of argument, different provisions were
referred. This Court is inclined to take the relevant provision of Order
XIX of the Code. XIX of the Code provides for affidavit, rule 1
provides for power to order any point to be prove by affidavit and rule
2 refers to the power of the court to order attendance of deponent for
cross-examination, rule 3 provides for matters, to which affidavit are
to be confined. This Court finds it is appropriate to take note of the
exact words used in the statute and the same was quoted below:
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1. Power to order any point to be proved by
affidavit.- Any Court may at any time for
sufficient reason order that any particular fact
or facts may be proved by affidavit, or that the
affidavit of any witness may be read at the
hearing, on such conditions as the Court thinks
reasonable:
Provided that where it appears to the
Court that either party bona fide desires the
production of a witness for cross-examination, and
that such witness can be produced, an order shall
not be made authorizing the evidence of such
witness to be given by affidavit.
2. Power to order attendance of deponent for
cross-examination.- 2. Upon any application
evidence may be given by affidavit, but the
Court may, at the instance of either party, order
the attendance for cross-examination of the
deponent.
(1) Such attendance shall be in Court, unless
the deponent is exempted from personal
appearance in Court, or the Court otherwise
directs.
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3. Matters to which affidavits shall be
confined.- (1) Affidavits shall be confined to
such facts as the deponent is able of his own
knowledge to prove, except on interlocutory
applications, on which statements of his belief
may be admitted:
Provided that the grounds thereof are
stated.
(2) The costs of every affidavit which shall
unnecessarily set forth matters of hearsay or
argumentative matter, or copies of or extracts
from documents, shall (unless the Court
otherwise directs) be paid by the party filing the
same.
11. Thus, a plain reading of Rule 1 under Order XIX of the
Code reveals that any court may any time for sufficient reason order
that a particular facts or facts may be proved by an affidavit or that
the affidavit of any witness may be read at a hearing, on conditions
as the court thinks reasonable. So, in order to attract Order XIX and
to proof any facts by way of affidavit, two things are required to be
satisfied. First is, there must be order to that effect by the court in
seisin of the matter and there must be sufficient reasons recorded for
that kind of any order. In this case, there is no order by the Deputy
17
Director, Consolidation, Sambalpur to the prove this fact by way of an
affidavit. There are no sufficient reasons recorded by the Deputy
Director why this fact should be proved by way of an affidavit.
12. So this Order XIX of the Code will not be applicable to
the present case and will not come to the rescue of the present
petitioner. The learned counsel for the petitioner relies upon the
Sections 17, 21 and 58 of the Indian Evidence Act and argues that
the affidavit is in fact admission and the fact admitted in this affidavit
constitute the best proof of the facts admitted and, therefore, the
Deputy Director was correct in upholding the right of the present
petitioner and the learned Joint Commissioner was wrong in setting
aside the order passed by the Deputy Director. The Section 17 of the
aforesaid Act reads as follows:
"Admission defined.- An admission as a
statement, oral or documentary or contained in
electronic form, which suggests any inference as
to any fact in issue or relevant fact, and which is
made by any of the persons, and under the
circumstances, hereinafter mentioned".
13. Thus, this section defines that an admission as a
statement oral or documentary or contained in electric form, which
suggests any inference as to any fact in issue or relevant fact, which
18
may be made by any person and under the circumstances,
thereinafter mentioned.
Section 18 of the aforesaid Act provides for admission
made by party to proceeding or his agent.- The statements made by
a party to the proceeding, or by an agent to any such party, whom
the Court regards, under the circumstances of the case, as expressly
or impliedly authorized by him to make them, are admissions.
Section 21 of the aforesaid Act provides that for proof
of admissions against persons making them, and by or on their
behalf.- Admissions are relevant and may be proved as against the
person who makes them, or his representative in interest; but they
cannot be proved by or on behalf of the person who makes them or
by his representative in interest, except in the following cases:-
(1) An admission may be proved by or on behalf of
the person making it, when it is of such a nature
that, if the person making it were dead, it would
be relevant as between third persons under
section 32.
(2) An admission may be proved by or on behalf of
the person making it, when it consists of a
statement of the existence of any state of mind or
body, relevant or in issue, made at or about the
time when such state of mind or body existed,
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and is accompanied by conduct rendering its
falsehood improbable.
(3) An admission may be proved by or on behalf of
the person making it, if it is relevant otherwise
than as an admission.
Section 58 of the aforesaid Act provides that facts
admitted need not be proof. It read as follows:
"No fact need to be proved in any proceeding
which the parties thereto or their agents agree to
admit at the hearing, or which, before the hearing,
they agree to admit by any writing under their
hands, or which by any rule of pleading in force at
the time they are deemed to have admitted by
their pleadings:
Provided that the Court may, in its discretion,
require the facts admitted to be proved otherwise
than by such admissions".
14. A joint reading of these three sections leads this Court
to come to the conclusion that facts which are admitted need not
be proved by the opposite party as facts admitted are best proof of
the facts in issue. In the case of Nagindas Ramdas vs.
Dalpatram Ichharam alias Brijram and others AIR 1974, SC
20
471, at paragraph-26, the Hon'ble Apex Court has held that as
follows:-
XXX "Admissions, if true and clear, are by far
the best proof of the facts admitted.
Admissions in pleadings or judicial admissions,
admissible under Section 58 of the Evidence
Act, made by the parties or their agents at or
before the hearing of the case, stand on a
higher footing than evidentiary admissions.
The former class of admissions are fully
binding on the party that makes them and
constitute a waiver of proof. They by
themselves can be made the foundation of the
rights of the parties. On the other hand,
evidentiary admissions which are receivable at
the trial as evidence, are by themselves, not
conclusive. They can be shown to be wrong".
15. The Hon'ble Supreme Court has come to conclusion
that admissions, if true and clear, are by far the best proof of facts
admitted. Admissions in pleading or judicial admissions, admissible
under Section 58 of the Evidence Act, made by the parties or their
agents at or before the hearing of the case, stand on a higher
footing than evidentiary admissions. The former class of
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admissions are fully binding on the party that makes them and
constitute a waiving of proof. They by themselves can be made the
foundation of the rights of the parties. On the other hand,
evidentiary admissions which are receivable at the trial as
evidence, are by themselves, not conclusive. They can be shown
to be wrong.
16. Thus, the Hon'ble Supreme Court in the aforesaid case
has clearly distinguished the two types of admissions, i.e. judicial
admissions and evidentiary admissions. Judicial admissions are
made in the pleadings. Evidentiary admissions are made in course
of taking of evidence by the Court. While the former is conclusive
and binding, the second is not conclusive and binding can be
shown to be wrong. In this case, the affidavit filed by the late
Narasingha Mishra before the Deputy Director is neither a part of
the pleadings nor it is a part of evidence. So by no stretch of
imagination by resorting to Sections 17, 21 and 58 of the Evidence
Act, a Court can take into consideration affidavit as a pleading or
piece of evidence and pronounce of judgment on the basis of the
same.
17. Moreover, it is seen that the judgment impugned
before the Commissioner passed by the Deputy Director shows
that the appeal was allowed on the basis of agreement between
the parties. The Order XXIII of the Code provides for withdrawal
22
and adjustment of suit. Rule 1 provides for withdrawal of suit. Rule
1-A provides for transposition of dependants as plaintiff, rule 2
provides for limitation, rule 3 provides for compromise of suit. Rule
3 read as follows:
Compromise of suit.-Where it is proved to the
satisfaction of the Court that a suit has been
adjusted wholly or in part by any lawful
agreement or compromise in writing and signed
by the parties, or where the defendant satisfies
the plaintiff in respect of the whole or any part of
the subject-matter of the suit, the Court shall
order such agreement, compromise or satisfaction
to be recorded, and shall pass a decree in
accordance therewith so far as it relates to the
parties to the suit, whether or not the subject-
matter of the agreement, compromise or
satisfaction is the same as the subject-matter of
the suit:
Provided that where it is allegedly by one party
and denied by the other that an adjustment or
satisfaction has been arrived at, the Court shall
decide the question; but no adjournment shall be
granted for the purpose of deciding the question,
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unless the Court, for reasons to be recorded,
thinks fit to grant such adjournment.
18. Thus, a plain reading of the aforesaid provisions, this
Court comes to the conclusion that essentially three things need to
be complied under this provision. Firstly, there should be a lawfully
agreement or compromise between the parties. Secondly, there
should be a signed compromise by the parties. Thirdly, the Court
on being satisfied comes to the conclusion that compromise or
agreement is to his satisfaction and he records the same. In this
case, while examining the order passed by the learned Deputy
Director, Sambalpur, this Court is of the opinion that the affidavit
filed before him does not contain signature of both the parties.
Only late Narasingha Mishra filed the affidavit. There is no finding
by the Deputy Director, Consolidation that he was satisfied that
the parties has compromised. So by resorting to Order XXIII also,
the petitioner cannot wriggle out the rigorous of judgment passed
by the learned Commissioner. So, this Court is of the opinion that
on the basis of the aforesaid discussion and judgment cited, the
affidavit is neither a pleading nor a piece of evidence and it cannot
be the sole foundation for declaring right of any kind of civil or
quasi-judicial or quasi-civil proceeding unless the Order XIX or
Order XXIII is attracted. So, this question is answered in favour of
the contesting opposite parties and against the petitioner.
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19. Now, the question arises whether the petitioner has
perfected his title by way of adverse possession. The law relating
to adverse possession is no more res integra. In order to prove
adverse possession, a party must establish that his possession for
the statutory period was nec vi, nec clam, nec precario. In simple
language, the petitioner, in order, to establish that he has
perfected title by way of prescription must establish by pleadings
and proof the date from which his possession become adverse to
the title of the true owner. He is required to plead and prove that
he was in open and continuous and peaceful possession of the said
land for a period of twelve years, without any disturbance and with
a hostile animus to the title of the real owner. Only then, he will
succeed, in proving or establishing his title by way of adverse
possession. The learned counsels appearing at the bar relies upon
the Full Bench judgment of Trilochan Dandsena and another
vs. State of Orissa and others, AIR 1995 Orissa 239, wherein
the Full Bench of this Court in answering a reference has said that
reference to the claim only by using adverse possession without
specifying anything more is not sufficient. In this case, the
petitioner has not filed any objection before the Consolidation
Officer to record his name on the basis of adverse possession. He
has not filed any objection to the objection raised by the late
Narasingha Mishra to delete the name of the petitioner from the
25
remarks column having illegal possession over the suit land. For
the first time, he raised the plea of adverse possession before the
appellate court. That too there is no specific pleading regarding the
exact beginning of the adverse possession and other three
conditions required for the purpose of determining the case.
Moreover, there is absolutely no evidence. The only piece of
material that is heavily relied upon by the learned counsel for the
petitioner is the affidavit filed by the late Narasingha Mishra, which
this Court does not accept as judicial admissions or having any
evidentiary evidence. So, this Court is of the opinion that the
petitioner has not perfected his title over the property in question
by way of adverse possession.
20. Mr. Mahakuda, learned counsel for the petitioner drew
the attention of the Court to Section 49 of the O.C.H. & P.F.L. Act,
which reads as follows:
49. Powers of subordinate authority to be
exercised by a superior- Where powers are to be
exercised or duties are to be performed by any
authority under this Act or the rules made
thereunder, such powers or duties may also be
exercised or performed by any authority superior to
it.
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21. It is argued by the learned counsel for the petitioner
that the Deputy Director while sitting in appeal can exercise the
power conferred upon the Asst. Consolidation Officer under Section
10. Sub-section (1) of Section 10 of the Act provides that if such
objection relates to right, title, interest in land and is in conformity
with law in force dispose of by conciliation among the party shall
be disposed of by the Asst. Settlement Officer. Therefore, it was
argued that the Deputy Director in purported exercise of power
conferred upon the Asst. Consolidation Officer under Section 10
(1) by virtue of Section 49 can pass an order as if there was a
compromise between the parties. The law is well settled, when
both the parties to an objection case agree to a particular issue,
then the Asst. Consolidation Officer has jurisdiction to decide the
matter. If the parties do not agree, then the matter is to be
referred to the Consolidation Officer for disposal. In this case,
Consolidation Officer has decided the matter and matter was
carried by the petitioner to the appellate court. So, by no stretch
of imagination it can be said by virtue of section 49 of the Act that
the Deputy Director while sitting in appeal over an order passed by
the Consolidation Officer shall consider a matter and exercise the
power conferred by Sub-section (1) of Section 10 of the Act on the
Asst. Consolidation Officer. This argument does not appear to be
reasonable to me. So I do not accept to the same.
27
22. The last argument advanced by the learned counsel for
the petitioner is that originally the record of right with respect to
the land in question was in favour of the predecessor of interest of
the present petitioner. In other words, he says that the land was
recorded in the name of the predecessor of interest of the present
petitioner in the settlement that took place prior to the last major
settlement, which is also known as Hamid settlement. But such a
plea has neither been taken before the Consolidation Officer nor
has been taken before the Deputy Director, nor has been taken
before the Consolidation Commissioner. So, the petitioner cannot
take such a plea in a writ before the High Court in exercise of
certiorari jurisdiction.
23. For all the reasons discussed above with detail, I do
not find any merit in the writ petition. I come to the conclusion
that the order passed by the learned Commissioner does not suffer
from any illegality requiring interference of this Court.
24. Hence, the writ petition is dismissed being devoid of
merit. The findings recorded by the learned Joint Commissioner,
Consolidation and Settlement, Sambalpur in Consolidation Revision
No.31/90 on dated 07.08.2003 are hereby confirmed.
There shall be no orders as to costs.
.......................................
S.K.Mishra, J.
Orissa High Court, Cuttack The 18th May, 2018/TDTUDU