Orissa High Court
Durga Charan Roul And Others. vs Bhagirathi Roul And Others on 20 December, 2017
Author: Vineet Saran
Bench: Vineet Saran
ORISSA HIGH COURT: CUTTACK
W.A. NO. 24 OF 2017
In the matter of an appeal under Clause-10 of the Letters Patent
read with Article 4 of the Orissa High Court Order, 1948 from
order dated 15.12.2016 passed by the learned Single Judge in
WP(C) No.21270 of 2015.
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Durga Charan Roul ......... Appellants
AFR and others.
Versus
Bhagirathi Roul
and others ......... Respondents
For Appellants : M/s S. Mishra, B. Mohanty,
A. Mohanta, E. Agarwal,
L.K. Moharana and
S.K.Samantray, Advocates
For Respondents : Mr. B.P. Pradhan,
Addl. Govt. Advocate
(Respondents no.5 and 6)
PRESENT:
THE HON'BLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HON'BLE DR. JUSTICE B.R.SARANGI
Date of hearing : 14.12.2017 :: Date of Judgment : 20.12.2017
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DR. B.R. SARANGI, J. The appellants, being opposite parties no.3 to 6
before the writ Court, have filed this intra-Court appeal impugning
the order dated 15.12.2016 passed by the learned Single Judge in
W.P.(C) No.21270 of 2015, whereby, while allowing the writ
petition, the order dated 16.11.2015 passed by the Additional
Commissioner of Settlement, Sambalpur in R.P. Case No.76 of
2014 has been set aside.
2. The factual matrix of the case in hand is that the
present appellants, as the revision petitioners, filed an application
under Section 15 (b) of the Orissa Survey and Settlement Act,1958
and Rules framed thereunder before the Addl. Commissioner
Settlement and Consolidation, Sambalpur registered as R.P. Case
No.76 of 2014, wherein the present private respondents were
impleaded as contesting opposite parties, for recording the land in
question separately in their name by correction of Record of Right
(ROR). The appellants pleaded that Sabik khata no.14/1 of village
Mochigaon measuring Ac.1.94 decimals, which corresponds to
Sabik plot no.5 measuring Ac.1.86 decimals and plot no.90/225
measuring Ac.0.08 decimals, originally recorded in the name of
their grandfather, namely, Lambodar Roul. Plot no.90/225
measuring Ac.0.08 decimals was acquired by the State
Government vide L.A. Case no.01/1958-59. Therefore, the
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remaining area of Ac.1.86 decimals was exclusively recorded in
the name of grandfather of the appellants, who was in absolute
physical possession over the same, and after death of their
grandfather, the present appellants have been in continuous
possession over such land with its right and title. During the last
settlement operation, the settlement authorities recorded the
name of father of the appellants in respect of the suit land and
also included the name of father of the private respondents.
Therefore, the appellants prayed that hal khata no.72, plot no.6
corresponding to sabik plot no.5 should be exclusively recorded in
the name of the appellants and the name of the private
respondents be deleted and accordingly necessary correction be
carried out in the ROR. On being noticed, the private respondents
advanced their arguments contending that the case land was in
joint possession of the ancestors of the parties and after them, the
appellants and the private respondents, being the legal heirs, are
possessing said land without any interference from any quarter.
Considering the possession of the land, the settlement authority in
the settlement operation has prepared the ROR jointly. The
question of delay was also raised, as the revision petition was filed
beyond the statutory period of limitation. The revisional authority
called for parawise report from the Tahasildar and Addl. Sub-
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Collector (Settlement), Keonjhar to ascertain the fact of possession
of the parties over the case land. Accordingly, the Tahasildar
reported the fact of possession in favour of the present appellants
whereas the report of the Addl. Sub-Collector (Settlement),
Keonjhar reveals the name of sabik recorded tenant who was the
common ancestor of the present appellants. On the basis of the
pleadings available on record, the revisional authority framed as
many as five issues and, while considering the issue nos.2 and 5
regarding right, title and interest of the parties over the disputed
land and the question of limitation, came to a definite finding that
the application has been filed beyond the statutory period of
limitation and the common ancestors of the present appellants
having been made available only in sabik recorded tenant of the
suit land, the grandfather of the private respondents are no way
concerned to such property and wrongly the name of grandfather
of the private respondents has been included with the name of
grandfather of the appellants in respect of the case land during
hal settlement and, as such, the same needs to be corrected by
deleting the name of Siropani Roul from the suit khata. While
considering the question of limitation, the revisional authority in
paragraph-23 of the judgment has elaborately discussed the same
and came to a conclusion that the Court should decide the case
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on the basis of materials available on record and technicalities
should not stand as a bar while granting justice to a party who is
otherwise entitled to be granted with such relief. Consequentially,
vide order dated 16.11.2015, the revisional authority allowed R.P.
Case No.76 of 2014 in favour of the appellants/revision petitioners
and issued direction to the Tahasildar to delete hal plot no.6 from
hal khata no.72 of village Mochigaon and prepare separate record
in the name of the appellants. Being aggrieved by the said order
dated 16.11.2015 passed in R.P. Case No.76 of 2014, the private
respondents preferred W.P.(C) No.21270 of 2015 impleading the
present appellants as opposite parties no.3 to 6 with a prayer to
set aside the order dated 15.11.2015 passed in R.P. Case No.76 of
2014 by the revisional authority and to include their name in the
hal ROR in respect of the disputed land. The learned Single Judge,
after hearing both parties, allowed the writ petition on 15.12.2016
and set aside the order dated 16.11.2015 on the ground that the
revisional authority has not considered the question of delay of
more than three decades in its appropriate spirit, hence this
application.
3. Mr. S.K. Samantray, learned counsel for the appellants
vehemently contended that though Section 15(b) of the Orissa
Survey and Settlement Act, 1958 specifically prescribes to file
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revision within a period of one year from the date of final
publication under Section 12-B of the Act or thereafter, the word
'or thereafter' has no restricted meaning rather the said
application can be filed even after expiry of one year and even it is
not necessary to show sufficient cause for filing of the revision by
filing application under Section 5 of the Limitation Act. It is
further contended that such provision contained in Orissa Survey
and Settlement Act, 1958 is a procedural one and its object is to
do substantial justice in order to check the litigants to come to the
Court with a mala fide intention to harass the other side. It is
urged that not a scrap of paper has been filed by the private
respondents to establish their prima facie case and without
delving into the merits of the case the learned Single Judge could
not and should not have disposed of the matter on the ground of
limitation. It is further urged that the reference made by the
learned Single Judge to the cases in Laxminarayan Sahu v.
State of Orissa, 1991 (I) OLR 82 (FB) and Labanyabati Devi v.
Member, Board of Revenue, 1993 (II) OLR 365 relate to Section
59 (2) of the OLR Act, wherein suo motu power of revisional
authority had been described, but the said decisions are no way
related to the present facts and circumstance of the case.
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Therefore, he seeks to set aside the order dated 15.12.2016
passed by the learned Single Judge in W.P.(C) No.21270 of 2015.
4. We have heard Mr. S.K. Samantray, learned counsel
for the appellants and Mr. B.P. Pradhan, learned Addl.
Government Advocate for respondent nos.5 and 6. Since the
matter has been heard at the stage of fresh admission, no notice
has been issued to respondents no.1 to 4 (opposite parties before
the revisional authority and petitioners before the writ Court).
5. It is profitable to refer the provisions contained under
Section 15 (b) of the Orissa Survey Settlement Act, 1958. Section
15 (b) reads thus:-
"15. Revision by Board of Revenue - The Board of
Revenue may in any case direct -
xxx xxx xxx
(b) on application, made within one year from the date of
final publication under Section 12-B, the revision of record
of rights or any portion thereof whether within the said
period of one year or thereafter but not so as to affect
order passed by a Civil Court under section 42:
Provided that no such direction shall be made until
reasonable opportunity has been given to the parties
concerned to appear and be heard in the matter."
From the aforementioned provision, it is made clear that on an
application, made within one year from the date of final
publication under Section 12-B of the Act, revision of ROR or any
portion thereof has to be made within the said period of one year
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or thereafter. The said provision provides that application is to be
made within a period of one year after final publication under
Section 12-B seeking for revision for record of rights or any
portion thereof. However, the meaning of the word 'or thereafter',
as mentioned in the said section, can be construed to mean that
even after one year from the date of final publication under
Section 15 (b), the revision can be filed. Thereby, no restriction
can be put to file a revision application after expiry of one year
period as contemplated under Section 15 (b) of the Survey and
Settlement Act, 1958 for correction of records. So far as
maintainability of revisional application is concerned, there is no
iota of doubt that such application is maintainable even after the
period of one year of final publication under Section 12-B of the
Survey and Settlement Act, 1958.
6. Admittedly, the proceeding was initiated before the
revisional authority after long lapse of 37 years. Even though the
statute does not prescribe any period of limitation, but for
entertaining an application at such a belated stage specific reason
has to be assigned by the revisional authority. The learned Single
Judge therefore by order dated 15.12.2016; on perusal of the
pleadings made by the appellants/revision petitioners before the
revisional authority in paragraph-5, as well as issue no.5 framed
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by the revisional authority with regard to question of delay of more
than three decades; came to a finding that since the revision was
filed after three decades, even though the statute nowhere
provides any period of limitation; in view of the decisions in
Laxman Konda v. State of Orissa, 72 (1991) CLT 49 and Union
of India v. Kishorilal Bablani, AIR 1999 SC 517, wherein law
has been settled that no prescription of limitation does not mean
that the dispute can be raised beyond unreasonable period, and
further taking into consideration the judgments of this Court in
Laxminarayan Sahu v. State of Orissa, 1991 (I) OLR 82 (FB);
Labanyabati Devi v. Member, Board of Revenue, 1993 (II) OLR
365; Santosh Kumar Shivgonda Patil v. Balasaheb Tukaram
Shevale, AIR 2009 SCW 6305; and W.P.(C) No.3651 of 2002
(Chaitanya Das v. Bibhuti Charan Das) disposed of on
14.12.2016; wherein it has been held that entertaining the claim after twelve years cannot be held to be within reasonable period; allowed the writ petition on the ground that the revisional authority has not considered the question of delay of more than three decades in its appropriate spirit.
7. Having regard to the facts and circumstances of the case and keeping in view the law settled in the present context by the apex Court as well as this Court, we concur with the finding of 10 the learned Single Judge that the revisional authority, while passing the order dated 16.11.2015 in R.P. Case No.76 of 2014, has not dealt with the issue relating to limitation in its proper perspective. Even though no specific period of limitation has been prescribed under the Act, after long lapse of three decades, a settled position cannot and should not have been allowed to be unsettled. The appellants, having not approached the revisional authority within reasonable time, are to suffer for their own negligence and laches.
8. In view of the above, this Court does not find any illegality or irregularity in the impugned order dated 15.12.2016 passed by the learned Single Judge so as to warrant interference. Accordingly, we do not find any merits in the writ appeal and the same is hereby dismissed.
Sd/-
VINEET SARAN CHIEF JUSTICE Sd/-
DR. B.R.SARANGI, JUDGE Orissa High Court, Cuttack The 20th December, 2017, Ashok/GDS True Copy Sr. Steno 11