Orissa High Court
Gobardhan Khamari vs Sarat Chandra Bohidar And Others on 30 November, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 594 of 2005
An appeal under Section 100 Code of Civil Procedure.
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Gobardhan Khamari ...... Appellant
-Versus-
Sarat Chandra Bohidar and Others ..... Respondents
Advocate(s) appeared in this case:-
_______________________________________________________
For Appellant : Mr. G. Mishra, Sr. Advocate
For Respondents : M/s. M. Kanungo, Mr. S.K. Mishra
Sr. Advocates
M/s. S. Mishra, P.K. Behera,
N. Padhi, S.K. Mohanty, M. Verma
Y.S.P. Babu, D. Pradhan,
P.R. Singh, S.N. Das, A.K. Mohanty
M/s. S. Das and A.K. Padhee
Advocates
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
30th November, 2024 SASHIKANTA MISHRA, J.
This is a defendant's appeal against a reversing judgment. The judgment passed by learned Addl. District Page 1 of 32 Judge, Sambalpur on 03.09.2005 followed by decree in RFA No.26/03 of 2003/2004 is under challenge whereby the judgment passed by the leaned Civil Judge, Sr. Division, Sambalpur on 17.04.2003 followed by decree in Title Suit No.184 of 1995 was reversed.
2. For convenience, the parties are referred to as per their respective status before the court below.
3. The suit property corresponds to land measuring Ac.0.13 decimals bearing Consolidation Plot No.603 under Consolidation Khata No.17 of Mouza- Kainsir with a dilapidated house standing thereon.
4. The suit was filed by the plaintiffs for declaration of their right, title and interest and confirmation of their possession over the schedule land with alternate prayer for recovery of possession and permanent injunction. The case of the plaintiffs is that one Ashutosh Bohidar was the predecessor-in-interest of the plaintiffs and proforma defendant No.2 being the Lambardar Gountia of the suit village. Said Ashutosh died on 16.10.1985. Before that, had been allowed to reclaim Page 2 of 32 the land measuring Ac.4.85 corresponding to Hamid Settlement Plot No.297/B and Plot No. 66 measuring Ac.1.47 decimals. He reclaimed the property and remained in possession after making improvements. He gifted and sold some portions of the property to different persons and the remaining land was recorded in his name as described in the schedule. On 24.12.1994, the contesting defendant made an application before the Tahasildar, Sambalpur for mutation of the suit property, which was allowed in his favour behind the back of the plaintiffs in Mutation Case No.2195/94. The plaintiffs therefore, filed appeal bearing No.14 of 1995 before the Sub-Collector, Sambalpur. During pendency of the appeal, the plaintiffs finding that a cloud of doubt having been raised over their right, title and interest and possession, brought the suit in question.
5. The contesting defendant No.1 filed written statement refuting the plaint averments. It is his case that Ashutosh Bohidar was never allowed to reclaim the suit land. Moreover, the consolidation scheme issued on Page 3 of 32 18.11.1978 in respect of the suit village was subsequently cancelled by notification dated 12.04.1991. As such, consolidation Khata No.17 was invalid. On the contrary, the suit land corresponding to Hamid Settlement Plot No. 66 was recorded in the name of the government in Major settlement in Khata No.153, Plot No.214 measuring Ac.0.13 decimals, which was never challenged by Ashutosh Boihdar or his legal representatives. Subsequently, the Tahasildar, Sambalpur granted lease of Plot No.414 in favour of the defendant in Lease Case No. 95/78 and delivered possession whereupon, the defendant constructed a house on the suit land and started paying land revenue. Said land was separately mutated in his name against Khata No. 330/42.
6. Basing on the rival pleadings, the trial court framed the following issues for determination:-
"(1) Whether late Ashutosh Bohidar was allowed in Revenue Case No.5(A)/1 (9) of 1952 to reclaim the lands of Hamid Settlement plot nos.297/B and 66 of Mouza-
Kainsir ?
(2) Whether pursuant to any such permission for reclamation, said Ashutosh Bohidar and Page 4 of 32 after him the plaintiffs have been possessing the suit land till date ?
(3) Whether the publication of the suit land in consolidation Khata No.17 is valid under law ?
(4) Whether the suit land has been recorded in Govt. Khata during Major Settlement operation in village Kainsir ?
(5) Whether the defendant has been possessing the suit land since 1952 through his late father or since 1978 pursuant to grant of lease in lease case No.95 of 1978 ?
(6) Whether the plaintiffs or the defendant has right, title and interest over the suit property ?
(7) Whether the defendant has perfected his title over the suit land by adverse possession ?
(8) Whether the suit is not maintainable for undervalued or under law of limitation ? (9) To what relief, the plaintiff is entitled ?"
7. The trial Court took up the Issue Nos. 1, 2 and 5 for consideration at the outset. It was noted at the outset that the claim that Ashutosh was the gountia of village Kainsir was proved. Further basing on the certified copy of the entry of revenue register of the Court of Collector and ADM, Sambalpur in Revenue Case Page 5 of 32 No.5(A)/1 (9) of 1952), the trial court found that the Deputy Commissioner, Sambalpur had allowed Ashutosh Bohidar to reclaim Plot No.297(B) and 66 of the suit mouza. However, basing on the plaint averments and the evidence adduced by the Plaintiff (P.W-1), the trial court found that there is no evidence to show that the plaintiffs are in possession of the suit house after the death of Ashutosh. Further basing on the evidence adduced by the defendant including the lease patta marked Exhibit-C of Lease Case No.95 of 1978, the trial court found that Major settlement Plot No. 414 of Khata No.153 had been leased out to him and possession was also duly delivered. The order of mutation passed by the Tahaildar vide Ext-E was relied upon. It was noted that the order had been set aside in appeal. Notwithstanding the setting aside of the mutation patta, the finding that the possession of the suit land was the contesting defendant was still valid. The trial court also took note of the admission made by the plaintiff, Sarat Chandra Bohidar during field inquiry on 04.05.1995 that the house standing on the suit land was Page 6 of 32 constructed by the contesting defendant. The rent receipts were also relied upon by the trial court to hold that the same proved possession of the contesting defendant No.1. The issues were answered accordingly. On issue No.4, it was held that the suit land was kept in the name of the government in MS ROR. On Issue No.3, the trial court considered the effect of cancellation of consolidation notification under Section-5 of the Consolidation of Holding and Prevention of the Fragmentation of Land Act read with Section-13(4) of the said Act and held that there was no material to show as to if by the time of publication of the cancellation notification, the Map and Land register etc. were prepared by the Consolidation Authorities. But as the validity of correctness of the Consolidation ROR had not been challenged, it cannot be treated as invalid. But Record of Right cannot create or extinguish the title of the real title holder. On such basis, the trial court held that the title of the suit land had passed on to the contesting defendant along with possession as per Lease Proceeding No.95/78. The other issues were answered Page 7 of 32 accordingly and the suit was dismissed on the above finding.
8. The plaintiffs carried the matter in appeal. The 1st Appellate Court disapproved the fact that the trial court had not given due importance to the consolidation ROR on the ground of cancellation notification being published by referring to the relevant provisions of the Act. Interpreting Section-5 (2), the 1st Appellate Court held that the title and possession of the parties decided prior to cancellation cannot be nullified. Since the Deputy Director, Consolidation had as early as in 1981 held the right and title of the plaintiffs' predecessor-in-interest over the suit land and ordered that same is to be recorded in his favour but a cancellation notification was issued ten years thereafter, it cannot invalidate the said earlier finding regarding the title of the plaintiffs' predecessor. Further, even though the consolidation ROR was published in 1992, i.e. after issuance of cancellation notification in 1991, it cannot be said that it has no value in view of the provision under Section-13 (4) of the Act, Page 8 of 32 which is to be deemed to have been published and prepared under the provisions of Orissa Survey and Settlement Act. Basically on such findings, the 1st Appellate Court held that Ashutosh Bohidar was the title holder and in possession of the suit land. As regards the claim of the defendant, the 1st Appellate Court placed no importance on the mutation patta on the ground that the order of mutation was set aside in appeal. As regards the lease patta, the 1st Appellate Court held that the defendant had failed to show the co-relation between MS Plot No. 214 of Khata No.153 with the suit khata and plot. The 1st Appellate Court also held that the plaintiffs were in possession and that the claim of the defendant of being in possession as a lessee was without any legal basis, the Appeal was thus, allowed and the suit was decreed. Being aggrieved, the contesting defendant has filed this appeal, which was admitted on the following substantial questions of law:-
"i. Whether the Consolidation R.O.R under Ext. 1 could have been relied upon by the learned lower appellate court when the consolidation scheme had been subsequently cancelled under section 5 of the Page 9 of 32 Consolidation Act much prior to the final publication u/s 41 of the Consolidation Act?
ii. Whether the entry under Ext. 1 can create any title in favour of the plaintiff in view of the provisions under section 13 (4) of the Consolidation Act which provides that after cancellation of the consolidation scheme the entries made under the Consolidation Act shall be deemed to have been made under the Orissa Survey and Settlement Act, 1958 ?
(iii) Whether the impugned judgment and decree are illegal as the learned lower appellate court failed to appreciate that an entry made under the Orissa Survey and Settlement Act, 1958 neither creates nor extinguishes any title?
(iv) Whether the learned lower appellate court committed an error apparent on the face of the record by failing to take note of the admission of the plaintiff under Exhibit A indicating that the defendant No. 1 had been in possession over the suit land since 1978 and had constructed a house over the suit land?
(v) Whether the impugned judgment and decree suffer from serious errors which an apparent on the face of the record as the learned lower appellate court and has not considered exhibit is A, A/1, C, D, E & F in its proper perspective as the said exhibits indicate that the defendant No. 1 was in possession over the suit land since 1978 and had constructed a house over the suit land?
(vi) Whether the impugned judgment and decree is liable to be set aside as it is based on no evidence as there was no materials to show that the suit land was reclaimed by the ancestors ofthe plaintiffs?Page 10 of 32
(vi) Whether the learned lower appellate court failed to take note of the fact that the consolidation R.O.R. could not have been issued in favour of the plaintiff in the year 1992 when the notification under section 5 cancelling the consolidation scheme came into existence on 12.4.1991?"
9. Heard Mr. Goutam Mishra, learned Senior Counsel with Mr. J.R. Deo, learned counsel for the defendant-appellant and Mr. S.K. Mishra, learned Senior Counsel with Mr.J. Pradhan for the plaintiffs-respondents.
10. Assailing the impugned judgment, Mr. Goutam Mishra forcefully argues that once the consolidation notification stood cancelled vide notification under Section-5 on 12.04.1991, the consolidation authorities had no power to publish ROR as in view of the language employed in the said provision, all power conferred on them by the Act automatically ceased. Mr. Mishra has relied upon the judgment passed by this Court in the case of Pradeep Kumar Behera and Others vs. Commissioner of Land Records and Settlement,1 in this regard. Mr. Mishra further argues that the plaintiffs 1 (2014 SCC OnLine Ori 520) Page 11 of 32 preferred appeal before the Deputy Commissioner of Consolidation in 1981 without impleading the defendant as a party for which there was no scope for the defendant to put forth his objection. According to Mr. Mishra therefore, the finding of the 1st Appellate Court that the defendant never objected before the consolidation authority at the relevant time is untenable. As regards the plea of the plaintiffs that they were not heard in the mutation case, Mr. Mishra would argue that the field inquiry was done by the R.I. in presence of one of the plaintiffs, which also revealed that the defendant had constructed a house on the said land having been granted lease since 1978. The grant of lease in favour of the defendant was never challenged by the plaintiffs. Summing up his arguments, Mr. Mishra submits that the 1st Appellate Court placed undue reliance on the consolidation ROR ignoring the overwhelming evidence on record to show that the defendant had been granted lease, which was never challenged and he was admittedly in Page 12 of 32 possession over the suit land and had constructed a house thereon.
11. Per contra, Mr. S.K. Mishra would argue that the trial court had committed gross error in relying upon the order passed by the Tahasildar in the mutation case, even though the same had been set aside in appeal by the Sub-Collector. In this context, Mr. Mishra would argue that once an order passed by an authority is set aside in appeal, the same is no longer available to be relied upon. As regards the consolidation ROR, Mr. Mishra places reliance on the provision under Section 13(4) of the Act to submit that notwithstanding cancellation of consolidation operation by issue of notification under Section-5, the evidentiary value of the ROR so issue by the Consolidation Authorities would remain valid and treated as one having been issued under the Orissa Survey and Settlement Act. Therefore, according to Mr. Mishra, the consolidation ROR is a good evidence of the title as well as the possession of the plaintiffs over the suit land. As regards the lease patta in view of absence of co-relation between the land covered Page 13 of 32 there under with the suit land, the 1st Appellate Court rightly rejected the claim of the defendant.
12. Analysis and findings:
Substantial questions of law Nos. 1 and 2
"i. Whether the Consolidation R.O.R under Ext. 1 could have been relied upon by the learned lower appellate court when the consolidation scheme had been subsequently cancelled under section 5 of the Consolidation Act much prior to the final publication u/s 41 of the Consolidation Act?
ii. Whether the entry under Ext. 1 can create any title in favour of the plaintiff in view of the provisions under section 13 (4) of the Consolidation Act which provides that after cancellation of the consolidation scheme the entries made under the Consolidation Act shall be deemed to have been made under the Orissa Survey and Settlement Act, 1958 ?"
As both these questions of law are related, they are taken up together for determination.
After going through the pleadings of the parties and contentions raised by them, this Court feels it apposite to refer to certain provisions of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. Sections 3, 4, 5 and 13 read as follows:-
3. Declaration and notification regarding consolidation- The State Government may, where Page 14 of 32 they are of the opinion that any area, which shall comprise a village or group of villages, may be brought under consolidation operations, issue a notification to that effect whereupon it shall become lawful for the Consolidation Officer or his subordinate or any other Officer acting under his authority-
(a) to enter upon and survey in connection with rectangulation or otherwise and to take levels of any land in such area, if necessary ;
(b) to clear by cutting or removing any tree, jungle, fence, standing crop or other material obstruction during such survey or taking of levels; and
(c) to do all acts necessary to ascertain the suitability of the area for consolidation operations;
(2) The Consolidation Officer shall cause public notice of the notification issued under Sub-
section (1) to be given in the prescribed manner.
(3) The Assistant Consolidation Officer shall tender compensation to the person concerned for any damage which may have been caused by any action taken under Sub-section (1) and in case of any dispute as to the assessment or payment of the amount so tendered, he shall refer the matter for decision by the Consolidation Officer whose decision thereon shall be final and shall not be questioned in any Court of law.
4. Effect of notification:- Upon the publication of the notification issued under Sub-section (1) of Section 3 in the Official Gazette. The consequences as hereinafter set forth, shall, subject to the provisions of this Act, ensue in the consolidation area till the publication of notification under Section 41, or Page 15 of 32 Sub-section -(1) of Section 5 as the case may be-
(1) The consolidation area shall be deemed to be under consolidation operations and the duty of preparation of record-of-rights and map of each village comprised in the are shall be performed by the Assistant Consolidation, Officer who shall prepare them in the manner hereinafter provided; (2) Notwithstanding anything contained in any law for the time being in force, no land- owner, except with the permission, in writing of the Consolidation Officer previously obtained, shall, after publication the notification under Sub-section (1) of Section 13, transfer by way of sale, gift, mortgage or exchange any land, and no document purporting to effect any such transfer shall be registered by a Registering officer appointed under the Registration Act, 1908 unless the document accompanied by a certified copy of the aforesaid written permission:
Provided that no permission of the Consolidation Officer shall be necessary for transfer by way of sale, gift, mortgage or exchange of lands, which are covered by orchards, groves or homestead lands which in the opinion of the Director of Consolidation is subject to several fluvial action, intensive soil erosion, or prolonged water-logging or is otherwise for cultivations.
(2-a) No landowner shall after the publication of the map and land register under Section-9, convert any land in the unit to be used in any manner so as to render it unsustable for consolidation Page 16 of 32 without obtaining the permission in writing of the consolidation offer:
(3) Every proceeding, relating to survey, preparation and maintenance of record of right and settlement of rent shall stand abated after publication of the notification under Sub-section (1) of Section 6: and (4) Every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceedings could be or ought to be started under this Act, which is pending before any Civil Court, whether of the first instance or appeal reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending stand abated.
Provided that no such order shall be passed without giving the parties concerned an opportunity of being heard:
Provided further that on the issue of a notification under Sub-section (1) of Section 4 in respect of the said area or part thereof-
(a) every order passed by the Court under Clause (4) in relation to the lands situate in such area or part thereof, as the case may be, shall stand vacated, and
(b) all such suits and proceedings as are referred to in Clause (3) or Clause (4) which relate to lands situate in such area or part thereof, as the case may be, shall be proceeded with and disposed of in accordance with the law as it they had never abated:Page 17 of 32
Provided also that such abatement shall be without prejudice to the right of the person affected to agitate the right or interest which formed the subject-matter of the said suit or proceeding before the consolidation authority in accordance with the provisions of this Act or the rules made thereunder.
5. Cancellation of notification-(1) It shall be lawful for the State Government at any time to cancel, by publication of an order to that effect in the Official Gazette, the notification made under Sub-section (1) of Section 3 in respect of the whole or any part of the area specified therein.
(2) Where a notification has been cancelled in respect of any area under Sub-section (1), such area shall cease to be under consolidation with effect from the date of the cancellation.
13. Revision of map and land register-
(1) The map, land register and other records, if any, prepared under Section 6 shall be revised, if necessary, on the basis of the orders passed under Sections 10, 11 and 12 and shall be published for a period of fifteen days in the unit for information of all concerned.
(3)[Deleted] (3) The map, land register and other records, if any, may thereafter be maintained from time to time on the basis of orders passed by competent authorities under the relevant provisions of this Act.
(4) Where in respect of any village an order in published under Sub-section (1) of Section 5 at any time after the publication Page 18 of 32 of the map and land register under Sub-
section (1), the map and the record of rights prepared on the basis of such land register shall, for all intents and purposes, be deemed to have been prepared under the Odisha Survey and Settlement Act, 1958 (Odisha Act, 3 of 1959), provided they are published in the same manner as required by Sub-section (92) of Section 22 and extracts of the record-of-rights are supplied to the land-owners at the time of such publication."
13. On a conjoint reading of the aforequoted provisions, it becomes abundantly clear that once the notification under Sub-section-1 of Section-3 in respect of any area is cancelled by subsequent notification issued under Section-5, the consolidation authorities cease to have any jurisdiction whatsoever to exercise power under the different provisions of the Act. In fact, in view of the specific language employed in Sub-section (4) of Section- 13, the ROR and map prepared before publication of notification under Section-5(1) shall be deemed to have been prepared under the Orissa Survey and Settlement Act, 1959. In the case of Pradeep Kumar Behera (supra), this Court, while considering the effect of Page 19 of 32 publication of cancellation notification under Section 5(1) held as follows:-
"24 The publication of cancellation order under Section 5(1) must be held to have the effect of obliterating and setting at naught all decisions of the consolidation authorities with regard to right, title and interest in land for the reason that for want of notification under Section 3 (1) of the Act, the authorities under the Consolidation Act cannot continue to exercise the power and jurisdiction under the Act within the consolidation area. Section 3(1) notification is the starting point that entitle the authorities under the Act to exercise the power and jurisdiction in respect of the area brought under consolidation. Once the Section 3(1) notification is cancelled, the authorities under the Act become disentitled to exercise their power in respect of the de- notified area.
25. The matter can be looked into from another angle. As has been seen earlier, upon issuance of notification under Section 3(1) of the Consolidation Act, the authorities under the Act become entitled to exercise power to decide the question of right, title and interest in land within the area covered under the said notification and if any suit relating to right, title and interest in respect of any such land is pending before the civil court on the date of such notification, on order being passed to that effect, such suits abate and thereafter the question of right, title and interest in respect of the land in question is to be decided by the authorities under the Consolidation Act. We have seen earlier that as per clause (b) of the second proviso to sub-Page 20 of 32
section (4) of Section 4 of the Act, on the issue of cancellation notification under Section 5(1) of the Act the suit which got abated because of notification issued under Section 3(1) of the Consolidation Act, shall be proceeded and disposed of by the civil court, as if it had never abated. In case we hold that by publication of R.O.R. under Section 13(1) of the Act prior to publication of Order under Section 5(1) has the effect of attaching finality to decisions on questions relating to right, title and interest in land covered under the R.O.R., the law enacted in the second proviso to Section 4(4) of the Act would create an anomalous and incongruous position, meaning thereby, that the consolidation authorities will continue to have power and jurisdiction to hear appeal or revision under Sections, 12, 36 and 37 of the Act and at the same time, the civil court will also continue to proceed with the suit, which had earlier abated but revived due to publication of cancellation order under Section 5(1) of the Act and decide the question of right, title and interest in respect of the very same land, resulting in conflicting decision by two forums. It can never be assumed that legislature intended to create such anomalous situation, which would have the effect of leading to inconsistent decisions being passed by two forums in respect of the same subject matter.
It is a salutary principle of interpretation of statute that the provision of an Act should be read harmoniously so as to avoid anomaly and conflict. Hence, in view of the provisions of the Consolidation Act and OSS Act as discussed above, it must be held that the Consolidation Commissioner or Director of Page 21 of 32 Consolidation has no authority to examine in exercise of revisional power under Section 37 of the Consolidation Act, the correctness of R.O.R. published under Section 13(1) of the Act and preceded by publication of cancellation order under Section 5(1) of the Act. In view of the deeming provision of Section 13(4) of the Consolidation Act an R.O.R. published under Section 13(1) before publication of cancellation notification under Section 5(1) shall have all the consequences attached to the R.O.R. as if it is one published under the OSS Act and, therefore, correctness thereof can be examined by the Settlement Commissioner under Section 15(b) of the said Act. By exercising power under Section 15 of the OSS Act, the Settlement Commissioner does not decide right and title in the land. For the reasons aforesaid, contention of the learned counsel for the petitioner fails and the writ petition is dismissed.
(emphasis supplied)"
14. Coming to the facts of the present case there is no dispute that the suit village Kainsir was notified for consolidation operation. But by notification dated 12.04.1991 (Exhibit-B) issued under Section 5(1) of the Act, the consolidation operation was cancelled. The notification dated 12.04.1991 published in the Orissa Gazette reads as follows:-
Page 22 of 32
"SRO No. 213/91-In exercise of the powers conferred under Sub-section (1) of Section 5 of the Orissa Consolidation of Holdings and Prevention of Fragmentations of Land Act, 1972 (Orissa Act 21 of 1972), the State Government do hereby cancel the notification No. 7163- CH (Legis) 74/78 dated the 30th October, 1978 issued under Sub-section (1) of Section-3 of the said act published in an extraordinary issue of the Orissa Gazette No. 1666 dated the 18th November, 1978 in respect of area mentioned in the schedule given below:-
SCHEDULE Name of the Name of the Name of the village with district Police station thana No. (1) (2) (3) Sambalpur Sambalpur Kainsir Thana-7"
15. Surprisingly however, the consolidation ROR, i.e., Exhibit-1 was published on 31.03.1992, which is clearly after publication of the notification of cancellation under Section-5(1). Sub-section (4) of Section-13 comes into picture only when an ROR is published prior to the notification under Section-5 but as already seen, once the cancellation notification under Section-5 is published, there being no power vested with the consolidation authorities any longer, no ROR could have been published subsequent thereto. The trial court has held that there is no evidence to show revival of the consolidation Page 23 of 32 proceeding in the suit village but failed to consider the effect of cancellation notification under Section-5 or any further acts done by the consolidation authorities including publication of consolidation ROR on the basis of enquiry during consolidation operations. In view of the settled position of law as per Pradeep Kumar Behera (supra) and followed by a coordinate Bench of this Court in the case of Satyabhama Sahoo v. Commissioner, Consolidation, Odisha, Cuttack and others, [OJC No. 13177 of 2021], it can be said that after publication of notification under Section-5 (1), the consolidation operation is set at naught and the consolidation authorities have no jurisdiction to thereafter to sit over the matter. Reference to Sub-section (4) of Section- 13 by the Courts below is entirely misconceived because Sub- section (4) relates to the things done in respect of the Sub- section-1. In other words, if an ROR has been published prior to issuance of notification under Section-5 then, it would be deemed to have been prepared under Orissa Survey and Settlement Act. There is no provision in the Page 24 of 32 Act covering a situation where an ROR is published after publication of cancellation notification under Section-5(1). This Court therefore, finds considerable force in the submission of learned Senior Counsel, Mr. G. Mishra that the publication of the consolidation ROR vide Exhibit-1 by the consolidation authorities is wholly without jurisdiction and cannot be sustained in the eye of law. This Court therefore, holds that the consolidation ROR vide Exhibit-1 has no sanctity of law. The 1st Appellate Court has not considered the effect of the cancellation notification under Section-5(1) on the publication of consolidation ROR vide Exhibit-1 at all. This Court further holds that no title could be said to have passed in favour of the plaintiffs' predecessor in interest by virtue of the consolidation ROR vide Exhibit-1. The finding of the 1st Appellate Court that the orders of the authorities constituted under the Act deciding the title and possession of the parties prior to the cancellation cannot be nullified runs entirely contrary to the position of law as reflected in the statute as also the judgments of this Court in Pradeep Kumar Behera Page 25 of 32 (supra) and Satybhama (supra). The further finding that the right and title decided by the Deputy Director, Consolidation in 1981 was long prior to the cancellation notification is entirely untenable in the eye of law. The 1st Appellate Court must be held to have made a complete misreading of the provision under Section-13(4), which refers to the situation obtaining prior to publication of the cancellation notification. It is stated at the cost of repetition that the consolidation ROR was published after publication of the cancellation notification and would therefore, have no value.
16. It would not be out of place to consider the merits of the claim of the plaintiffs of having title over the suit land by virtue of the order passed by the Deputy Commissioner, Sambalpur in Revenue Case No. 551 of 1952. In this regard, Exhibit-3, being copy of entry of revenue register of the Collector and ADM, Sambalpur for the year, 1953-54 has been pressed into service, wherein the following entries have been made Page 26 of 32 "place to reclaim gochar under Act XIX of 50-allow Plot No.297/(B)(4.85 and 66) (1.42)"
It is contended that Ashutosh Bohidar was the lambardar gountia of the mouza. As to the effect of the order allowing him to reclaim the land, it is no longer res integra that any land held by a gountia is only incidental to his office. As such, after abolition of the gounti system, the gountia shall cease to have the right to hold to the same. In other words, such land held by the gountia is not his personal property. This has been the consistent view of this Court in several judgments such as the cases of Murarilal Patel v. State of Orissa and another (arising out of in RSA No. 18 of 2005), Sidheswar Panigrahi v. State of Orissa and Others,2 Satish Kumar Naik vs. Debendra Patel and Others,3 . In all these cases, it has been unequivocally held that the land held by the gountia as an incident of his office is not his personal property and the same shall stand vested to the 2 2019 SCC OnLine Ori 24 3 2018 SCC OnLine Ori 245 Page 27 of 32 State free from all encumbrances after abolition of the gounti system. Even otherwise, on the basis of evidence adduced, even if Plot No.297(B) and 66 were allowed to be reclaimed by Ashutosh Bohidar, it cannot be said that the same conferred title on him over the said plots. In fact, there is even no evidence as to if Ashutosh Bohidar had actually reclaimed the land. It is stated that while possessing said land, Ashutosh gifted out a portion to Kainsir M.E. School and sold out some portions to different purchasers and possessed the remaining portion till his death, while the particulars relating to such transactions have not been stated or proved, there is also no pleading or evidence to show as to who possessed the land after death of Ashutosh. The trial court, taking note of the above has held and rightly so, that there is practically no evidence on record from the side of the plaintiffs as to if they were in possession of the suit land after the death of Ashutosh.
Therefore, merely on the basis of the order under Exhibit-1 passed in Revenue Case No.591(9) of 1952 Page 28 of 32 granting permission to Ashutosh Bohidar to reclaim the land without any further evidence showing the passing of title to his successors that is, the plaintiffs, it cannot be conclusively held that the plaintiffs have right, title and interest including possession over the suit land The substantial questions of law Nos.1 and 2 are answered accordingly.
17. Substantial questions of law Nos. 3 and 4.
"iii) Whether the impugned judgment and decree are illegal as the learned lower appellate court failed to appreciate that an entry made under the Orissa Survey and Settlement Act, 1958 neither creates nor extinguishes any title?
(iv) Whether the learned lower appellate court committed an error apparent on the face of the record by failing to take note of the admission of the plaintiff under Exhibit A indicating that the defendant No. 1 had been in possession over the suit land since 1978 and had constructed a house over the suit land?"
18. In this context, it has been argued that the plaintiffs have not proved their antecedent title. The defendant, on the other hand, has adduced cogent evidence to show that vide Lease Case No.95 of 98 (Exhibit-C), lease of the suit property was granted in his Page 29 of 32 favour. The order passed in the lease case was never challenged before the higher forum either by Ashutosh or the plaintiffs at any point of time. The plaintiffs have heavily relied upon the order passed in the Mutation Case No.2195 of 1994 which was set aside in appeal by the Sub-Collector. Nevertheless, in the inquiry report submitted by the Tahasildar vide Exhibit-A, one of the plaintiffs, namely, Sarat Chandra Bohidar admitted that the Khaprali house standing over the land was constructed by the defendant. This admission is highly significant in the context of the case, particularly, when considered along with the rent receipts proved by the defendant marked Exhibits-F and F/1 showing payment of land revenue to the State in respect of the suit land at least in 1996-97 and 2002-2003. This, in the absence of any contrary evidence, prima facie, suggests that the defendant was in possession of the suit land. As is evident, the 1st Appellate Court fell into error in not considering the fact that even though there is some evidence of the suit land being leased out originally to Page 30 of 32 Ashutosh Bohidar in 1952 for the purpose of reclamation yet, the plaintiffs have not been able to establish a continuous link in respect of the suit land since the death of the lessee Ashutosh. It would appear that the 1st Appellate Court has been swayed way by the order passed in 1952 and as also the order passed in the mutation appeal. It must be noted that the mutation appeal was allowed by the Sub-Collector taking note of the consolidation ROR but then as discussed in detail hereinbefore, the said ROR being entirely without jurisdiction, the order passed by the 1st Appellate Authority would not enure to the benefit of the plaintiffs rather, the finding of the mutation authority in favour of the defendant would hold good. All the above facts raise considerable doubts as regards the title of the plaintiffs over the suit property. The 1st Appellate Court has not considered the evidence adduced by the defendant in the proper perspective at all and in any case, not in light of the above. The finding of the 1st Appellate Court is Page 31 of 32 therefore, rendered vulnerable. The substantial questions of law Nos.3 and 4 are answered accordingly.
19. Thus, from a conspectus of the analysis of facts, evidence and the position of law vis-à-vis the contentions raised by the parties, this Court finds that the claim of the plaintiffs over the suit land is without any legal basis being based on an invalid ROR (Ext-1) and lack of evidence regarding antecedent title and to link the original lessee, Ashutosh Bohidar with them. For the above reasons therefore, the impugned judgment passed by the 1st Appellate Court is held to be unsustainable in the eye of law.
20. In the result, the appeal succeeds and is therefore, allowed. The impugned judgment passed by the 1st Appellate Authority is hereby set aside. The judgment passed by the trial court is hereby confirmed. Parties to bear own costs.
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(Sashikanta Mishra) Signature Not Verified Judge Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Orissa Sr. Stenographer High Court, Cuttack Reason: Authentication The Orissa Location: 30th High November, 2024 B.C.Tudu, Sr.Steno Court, Cuttack Date: 30-Nov-2024 13:42:17 Page 32 of 32