Orissa High Court
Abdul Gaffar Khan (Since Dead vs State Of Orissa & Others .... Opp. ... on 27 July, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
O.J.C .No. 1520 OF 1995
Abdul Gaffar Khan (since dead, his .... Petitioners
legal heirs) Manima Bibi & others
Mr. N.P. Parija, Advocate
-versus-
State of Orissa & others .... Opp. Parties
Mr. S.K. Dwibedi, Advocate
(For Opposite Party Nos. 5 to 11)
Mr. Dillip Kumar Mishra,
Additional Government Advocate
(For Opposite Party Nos. 1 to 4)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 27.07.2021
18. 1. This matter is taken up through video conferencing mode.
2. The Petitioners in this writ petition seek to assail the order dated 31st March, 1994 (Annexure-4) passed by the Commissioner, Consolidation, Board of Revenue, Odisha, Cuttack in R.P. No.899 of 1988, whereby he dismissed the revision and upheld the order dated 25th April, 1988 (Annexure-3) passed by the Deputy Director, Cuttack Range, Jagatsinghpur in Appeal Case No.310 of 1987 confirming the order dated 19th August, 1987 (Annexure-2) passed by the Consolidation Officer, Raghunathpur in Objection Case No.733 of 1987.
3. After commencement of the consolidation operation, the predecessors of the Petitioners, namely, Abdul Gaffar Khan (the original Petitioner) filed objection Case No. 733 of 1987 before the Consolidation Officer under Section 9(3) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for Page 1 of 2 // 2 // short, 'the Act') contending that in 1930 settlement, the land in question was recorded in the name of the ancestors of the Petitioners. In Hal settlement of 1981, the land in question was recorded in the name of Gunanidhi Behera and others for which they filed objection case. It was their case that the land was never sold to the predecessors in interest of contesting Opposite Party Nos.5 to 11 by Registered Sale Deed No. 6044 dated 09.12.1953 by Kuanar Khan as alleged. As such, the land should be recorded in their name.
4. The Consolidation Officer on the basis of the materials available on record and taking into consideration the evidence led by the parties, more particularly the evidence of the objector to the effect that he was not in possession over the suit land and they came to know about the recording of the land in the name of the predecessors of contesting Opposite Party Nos.5 to 11 during consolidation operation, came to a conclusion that the land has been rightly recorded in the land register in the names of the predecessors of contesting Opposite Party Nos.5 to 11. As such, he dismissed the objection case. Assailing the said order dated 19th August, 1987 (Annexure-2), the predecessors of the Petitioners preferred Appeal Case No. 310 of 1987 under Section 12 of the Act, which was also dismissed. Being aggrieved, they moved the revisional court in Revision Case No. 899 of 1988, which was also dismissed vide order dated 31st March, 1994 under Annexure-4. Hence, this writ petition has been filed.
4. Mr. Parija, learned counsel for the Petitioners, vehemently argued that there is no document on record to show that Nawab Khan, the father of Kuanar Khan, who had sold the properties to the predecessors of the contesting Opposite Party Nos.5 to 11, had Page 2 of 6 // 3 // purchased the suit land in an auction sale. Since they failed to produce any document in support of their case, the land in question should not have been recorded in their names. He further submitted that in order to assert their title, the predecessor of the Petitioners had also filed Civil Suit No.16 of 1984, which was abated due to commencement of the consolidation operation. Thus, the predecessor of the Petitioners was diligent about his title. It is his contention that the appellate court as well as revisional court also committed gross illegality in holding that the predecessors of the contesting Opposite Party Nos. 5 to 11 have acquired right by adverse possession, which is case of neither of the parties. Since the R.O.R of 1930 stands in the name of the predecessors of Petitioners and the predecessors of contesting Opposite Party Nos.5 to 11 failed to establish their flow of title, the Consolidation Authorities have committed gross error in rejecting the claim of the Petitioners. Hence, the impugned orders are liable to be set aside and a direction should be issued to record the land in question in the name of the Petitioners.
5. Mr. Dwibedi, learned counsel for the contesting Opposite Party Nos.5 to 11 submitted that the land in question was in fact recorded in the name of the ancestors of the Petitioners in 1930 settlement. However, the recorded tenants mortgaged the land. As they could not repay the loan and redeem the property, it was put to auction and one Nawab Khan purchased the property in the auction sale. After his death, his son namely, Kuanar Khan transferred the suit land in favour of the predecessors of the contesting Opposite Party Nos.5 to 11 vide Registered Sale Deed No. 6044 dated 09.12.1953. After purchase, the predecessors of the contesting Opposite Party Nos.5 to 11 got the land mutated in their name and 1981 Settlement R.O.R. Page 3 of 6 // 4 // was also published in their name. They are in possession over the suit property althroughout and are paying the land revenue till date. As such, the Petitioners have no semblance of right, title and interest over the suit property. Accordingly, he prays for dismissal of the writ petition.
6. Mr. Mishra, learned Additional Government Advocate for the State defended the impugned orders and contended that since the predecessor of the Petitioners had filed the Objection under Section 9(3) of the Act, onus is on him to prove the flow of title in his favour. Further the existence of Registered Sale Deed No. 6044 dated 09.12.1953 is not disputed and it is admitted that the contesting Opposite Party Nos.5 to 11 are in possession since the date of purchase on payment of land revenue. Thus, the Consolidation Authorities have committed no error in passing the impugned orders. Moreover, since the orders are outcome of concurrent finding of facts and no perversity has been alleged in the said orders under Annexures-2, 3 and 4, this Court should not interfere with the same. Hence, he prays for dismissal of the writ petition.
7. Heard learned counsel for the parties and perused the materials available on record.
8. Admittedly the land was recorded in the name of the ancestors of the Petitioners in 1930 settlement. Although Mr. Parija, learned counsel for the Petitioners contended that there is no document to the effect that the land was put to auction but the Registered Sale Deed No.6044 dated 09.12.1953 clearly discloses that Kuanar Khan, son of Nawab Khan, who was the auction purchaser, had sold the property in favour of the predecessors of contesting Opposite Parties.
Page 4 of 6// 5 // Although objector-Abdul Guffar Khan had deposed before the Consolidation Officer that his father and co-sharers had never transferred the suit land to anyone, but he categorically admitted that they are not in possession over the suit land and are not paying land revenue in respect of the same. It is also admitted that they have no document to prove title except the R.O.R. of 1930 settlement. It is also deposed that the suit land is in possession of the Opposite Parties to the said objection case (predecessors of the contesting Opposite Parties). It is also admitted by them that in the last settlement of 1981, the suit land was recorded in the name of Gunanidhi Behera and others in the settlement R.O.R.
9. In view of the categorical admission of objector-Abdul Gaffar Khan, it is apparent that neither the objector-Abdul Gaffar Khan had any document except R.O.R. of 1930 settlement to establish his case nor he was in possession over the same. It is also not disputed that the land was sold to the predecessors of the contesting Opposite Party Nos.5 to 11 by virtue of Sale Deed No.6044 dated 09.12.1953. The possession of the predecessors of the contesting Opposite Parties over the case land is also not disputed.
10. Taking into consideration the same, all the forums under the Act have categorically held that the Petitioners failed to prove their title over the suit land. It is also not the case of the Petitioners that the findings of the authorities under the Act are perverse and contrary to evidence available on record. Thus, I am of the considered opinion that the impugned orders being outcome of scrutinization of the facts and materials on record, cannot be interfered with in a writ petition. On the other hand, the contesting Opposite Parties have proved their case to the hilt by establishing the flow of title in their favour.
Page 5 of 6// 6 // Accordingly, the writ petition being devoid of any merit stands dismissed, but in the circumstances there shall be no order as to cost.
11. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021 (K.R. Mohapatra) Judge jm Page 6 of 6