Orissa High Court
Rasananda Samal vs Commissioner Consolidation Orissa ... on 1 December, 2017
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT, CUTTACK.
W.P.(C). No.366 of 2006
In the matter of application under Articles 226 & 227 of the Constitution of
India.
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Rasananda Samal ... ... ... Petitioner
-Versus-
Commissioner Consolidation, Orissa,
Cuttack and others ... ... ... Opp.Parties
For Petitioner : M/s.P.R.Sutar, R.K.Sahoo, and
H.N.Parida.
For Opp. Parties : M/s.U.K.Mohanty, H.K.Mallick,
N.Biswal,B.K.Pradhan
(O.P.Nos.2 & 3)
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PRESENT :
THE HONOURABLE MR. JUSTICE BISWANATH RATH
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Date of Hearing :22.11.2017 Date of Judgment:01.12.2017
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Biswanath Rath, J.This writ petition involves challenge to the order of the Commissioner, Consolidation & Settlement, Cuttack passed in R.C. No.395 of 2004 thereby dismissing the claim of the petitioner involving an application under Section 37(1) of the O.C.H. & P.F.L. Act.
2. Short background involved in the case is that the land under dispute in the nature of homestead was recorded in the name of Mayadhar Mishra and others in Khata No.295, Plot No.916, Ac.0.130 decimals and the plot was claimed to be under possession of Hadibandhu Behera in Sikim Khata No.19 in 1930 record of rights. Hadibandhu Behera died prior to 1939 leaving behind his widow, namely, Nila and daughter Sukhi. Nila, out of Ac.0.130 decimals alienated Ac.0.30 decimals in favour of Rasananda Behera, the 2 father of the opposite party nos.2 and 3 by Registered Sale Deed No.4801 dated 17.11.1939 and balance Ac.0.100 decimals in favour of her daughter Sukhi by Registered Sale Deed No.4802 dated 27.11.1939.Said Rasananda Behera sold Ac.0.015 decimals out of Ac.0.030 decimals of land by Registered Sale Deed No.5385 dated 27.11.1943 in favour of Sukhi Dei and, thus, after the purchase Sukhi became the owner of Ac.0.115 decimals in Plot No.916. It is further stated that Sukhi Dei was remaining as owner in possession of Ac.0.115 decimals of land and the father of opposite party nos.2 and 3 was the owner of Ac.0.015 decimals of land. Vide notification dated 21.6.1961, Government of Orissa acquired Ac.0.010 decimals of land from the ownership of Sukhi Dei for government purpose and Sukhi Dei has also been paid with due compensation. Thus, at this stage, Sukhi Dei continued to be the owner of Ac.0.105 decimals of land from which she alienated Ac.0. Ac.0.095 decimals of land in favour of the petitioner by Registered Sale Deed No.1300 dated 25.2.1963 with due delivery of possession of the land in favour of the petitioner. After alienation of the land, Ac.0.090 decimals of land in favour of the petitioner, Sakhi Dei remained owner of Ac.0.015 decimals of land and it is at this point of time, opposite party nos.2 and 3 purchased Ac.0.025 decimals of land from Sukhi Dei by way of Registered Sale Deed No.6818 dated 3.12.1980 but without considering the land remained in existence of the vendor of the petitioner so also the vender of the opposite party nos.2 and 3. It is at this point of time, consolidation operation started in the area where the Consolidation Authority 3 recorded Ac.0.080 decimals of land as against the petitioner alleged to have been lesser than the land sold to the petitioner by Registered Sale Deed No.1300 dated 25.2.1963 and final record of rights are also published accordingly as appearing in the year 1992. Petitioner having come to know the recording of lesser land involving the petitioner, petitioner preferred R.C. No.395 of 2004 challenging the illegalities made in hal consolidation record and thereby prayed for due correction in the consolidation record of right. The revision was dismissed by final order vide Annexure-4 holding against the petitioner.
3. Learned counsel for the petitioner assailing the impugned order contended that despite of a clear picture available, particularly, with regard to Sukhi Dei alienating Ac.0.090 decimals of land in favour of the petitioner by way of Registered Sale Deed dated 25.2.1963 and Registered Sale Deed in favour of opposite party nos.2 and 3 of a higher extent of land and there being a sale of higher extent of land in favour of opposite party nos.2 and 3 without entitlement of the vendor, the Revisional authority failed in appreciating this aspect of the matter and thereby arrived at the wrong and illegal impugned order. Learned counsel for the petitioner contended that unless the impugned order is interfered with the petitioner will suffer great prejudice for no fault of him.
4. To the contrary, Sri U.K. Mohanty, learned counsel appearing for the opposite party nos.2 and 3 referring to the contentions of opposite party nos.2 and 3, as narrated in the counter affidavit, contended that the claim of sale in 4 favour of the petitioner by Sukhi Dei to the extent of Ac.0.090 decimals of land by virtue of Registered Sale Deed dated 25.2.1963 and giving delivery of its possession to the petitioner of the while land are all false for non filing of the sale deed by the petitioner nor filing of a certified copy thereof to establish his case in the writ petition. Learned counsel for the opposite party nos. 2 and 3 claimed that the petitioner has no sustainable claim. The opposite party nos.2 and 3 also alleged involvement of malafide intention and stage managed sale deed obtained fraudulently in the guise of a will, which also was the bone of contention at the instance of Sukhi Bewa in T.S.No.69 of 1981. But unfortunately, the suit was dismissed for default on account of death of Sukhi Bewa. Referring to the plaint narrations, the counsel appearing for the opposite party nos.2 and 3 attempted to justify the claim on behalf of the opposite party nos.2 and 3. Denying the allegation in the writ petition, learned counsel appearing for the opposite party nos.2 and 3 prayed for dismissal of the writ petition.
5. Sri Birkam Senapati, learned Additional government Advocate supporting the stand of opposite party nos.2 and 3 and taking this Court to the observations of the learned authority below vide impugned order submitted that there is no infirmity in the impugned order.
6. Considering the rival contentions of the parties, this Court finds there is no dispute that even after acquisition of land by the State Government belonging to Sukhi Dei, Sukhi Dei still remains owner of Ac.0.105 decimals of land. There also appears a sale deed in favour of the 5 petitioner establishing the sale of Ac.0.090 decimals of land in favour of the petitioner by virtue of a sale deed dated 25.2.1963. There is also no denial to the fact that at the same time there also exists a sale deed dated 3.11.1980 in favour of opposite party nos.2 and 3 establishing sale of Ac.0.025 decimals of land to the father of the opposite party nos.2 and 3. Thus, here the question remains to be decided until and unless the sale deed standing in favour of the petitioner is not nullified by any court of law in spite of the vendor of the opposite party nos.2 and 3 had a sale deed with the opposite party nos.2 and 3 to the extent of Ac.0.025 decimals of land, no right of opposite party nos.2 and 3 can accrue in respect of Ac.0.025 decimals as their vendor did not have such land with her as on the date of that sale deed. Taking into consideration of the facts involving sale transaction between the petitioner and opposite party nos.1 and 2 and on perusal of the discussions on the case of the parties involving impugned order at Annexure-4, this Court finds the authority below has taken into account the above facts in deciding the claim of the petitioner. When the authority below taking into consideration the rival contentions parties and materials available in their support, came to observe that in 1930 settlement Plot No.916, Ac.0.13 decimals under Malik Khata No.295 was recorded n favour of Mayadhar Mishra, Jagnyeswar Mishra and Trilochan Mishra as stitiban status with note of sikim possession of Hadibandhu Mishra. After the death of Hadibandhu Mishra, his wife Nila Bewa alienated the sikim right for an area of Ac.0.03 decimals of land out of Sabik Plot No.916, Ac.0.13 decimals out of Sabik Plot No.916, Ac.0.13 decimals to 6 Rasananda Behera, the deceased father of the opposite party nos.2 and 3. Similarly, on the same day, Nila Bewa alienated her sikim right over rest of the area Ac.0.10 decimals out of Sabik Plot No.916, Ac.0.13 decimals to her own daughter Sakhi Dei through Registered Sale Deed dated 17.11.1939 where after Rasananda Behera further alienated Ac.0.015 decimals out of his purchased sikim area Ac.0.030 decimals of land to Sakhi Dei. Thus, Sakhi Dei became the owner of total land Ac.0.115 decimals. Accepting the claim of opposite party nos.2 and 3 that Sakhi Dei alienated Ac.0.025 decimals to Rasananda Behera through Registered Sale Deed dated 3.12.1980, petitioner became the sikim right purchaser of Ac.0.09 decimals. Records further also revealed that from the purchased land of the petitioner adjoins to the canal of the Irrigation Department. The Irrigation Department acquired Ac.0.010 decimals of land for canal purpose. So the petitioner remained with balance Ac.0.080 decimals of land as against his purchased sikim area Ac.0.090 decimals of land. It is fur the detailed discussions and the above observations of the lower authority and taking into consideration the claim of the petitioner that the petitioner had purchased all total Ac.0.090 decimals of land and for fact revelation that Irrigation Department has acquired land from the portion of the petitioner's land, this Court finds there no illegality in the sale of Sakhi Dei to an extent of Ac.0.025 decimals in favour of opposite party nos.2 and 3.
7. As a result, this Court finds there remains no wrong recording in the settlement record of right so far as the petitioner is concerned. For the above, 7 this Court finds there is no infirmity in the impugned order leaving any scope for this Court to interfere in the same.
8. The writ petition thus failed. However, there is no order as to cost.
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Biswanath Rath, J.
Orissa High Court, Cuttack.
The 1st day of December, 2017/.sks