Orissa High Court
Bikala Barik vs Commissioner Of Settlement .... ... on 3 April, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.16405 of 2018
Bikala Barik .... Petitioner
Mr. B. Tripathy, Advocate
-Versus-
Commissioner of Settlement .... Opposite Parties
and Consolidation, Odisha,
Bhubaneswar & others
Mr. R. Pradhan, ASC for O.P. Nos.1 & 2
Mr. D.R. Bhokta, Advocate for O.P. Nos.3 to 6
Mr. B. Biswal, Advocate for O.P. Nos.7 to 9
AND
W.P.(C) No.13334 of 2024
Bikala Barik .... Petitioner
Mr. B. Tripathy, Advocate
-Versus-
Commissioner of Settlement .... Opposite Parties
and Consolidation, Odisha,
Bhubaneswar & others
Mr. R. Pradhan, ASC for O.P. Nos.1 & 2
Mr. D.R. Bhokta, Advocate for O.P. Nos.3 to 6
Mr. B. Biswal, Advocate for O.P. Nos.7 to 9
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:03.04.2025
1.Both the writ petitions are clubbed together for a common disposal.
2. Instant writ petitions are at the behest of the petitioner challenging the correctness, legality and judicial propriety of Page 1 of 14 the impugned orders as per Annexures-1 and 2 passed in connection with Revision Petition No.363 of 2013 and Revision Petition No.1556 of 2014 purportedly in exercise of powers under Section 15(b) of Orissa Survey and Settlement Act, 1958 (hereinafter referred to as „the Act‟) on the grounds inter alia that the same are untenable in law and hence, liable to be interfered with and set aside with consequential directions issued in that regard.
3. In fact, the petitioner filed W.P.(C) No.16405 of 2018 challenging the decision in the revisions, however, it stands confined to the impugned order in Revision Petition No.363 of 2013, whereas, W.P.(C) No.13334 of 2024 is related to the dismissal of Revision Petition No.1556 of 2014. So, to say, the petitioner is aggrieved by the remand of the revision by order dated 19th June, 2013 in Revision Petition No.363 of 2013 for inquiry and correction of the Mutation RoR by a decision of the learned Tahasildar, Bhubaneswar. The petitioner is equally affected by such decision of the Revisional Authority in dismissing the other proceeding i.e. Revision Petition No.1556 of 2014 and hence, therefore, the writ petitions are filed.
4. Briefly stated, the facts pleaded on record from the side of the petitioner are as follows. It is stated that the case land appertains to Sabik Khata No.197 and Plot Nos. 945 and 946 correspond to Mutation Khata No.474/4428, Plot Nos. 1410 and 1412 measuring Ac.0.220 decimal and Ac.0.110 decimal and further correspond to Hal Khata No.205 and Plot Nos.1410 and 1412 and as per Sabik Settlement Khata No.197, the same stood recorded in the names of one Bula Jena and Muli Jena Page 2 of 14 but the latter died issueless in the state of jointness and thus, the former alone succeeded the interest thereof. It is further pleaded that as per the record of rights, there was an entry of oral mortgage in the remarks column, which had no legal force and said Bula Jena exercising absolute ownership and possession over the plots in question, sold the same to one Maheswar Barik, namely, predecessor of the petitioner and opposite party Nos.7 to 9 through a sale deed (RSD No.1579) dated 14th March, 1952 but the record could not be corrected in Hal settlement of 1973, on the basis of such purchase, hence, the case land was allowed to be recorded in favour of the successors of the Sabik recorded tenants, namely, Dhukhishyam, Trilochan and Rabindranath, who are the predecessors of opposite party Nos. 3(a) to (e) to 6 but, despite such record of right, the purchaser, namely, Maheswar Barik continued to physically possess the same during his life time and after his death, the petitioner and opposite party Nos.7 to 9 and while matter stood thus, opposite party No.6 somehow by fraud and misrepresentation managed to obtain a registered Power of Attorney from the other heirs of late Maheswar Barik without their knowledge, as per and in terms of which, he was not authorized to transfer but was to manage the property, however, when failed, the original Power of Attorney was returned to the executants and was finally, cancelled by a deed dated 23rd May, 2012. It is also pleaded that in spite of such deed of cancellation, opposite party No.6 behind the back of the executants alienated the case land by a sale deed dated 11th February, 2013 in favour of his wife and another, namely, opposite party Nos.10 and 11 respectively. It is pleaded that the Page 3 of 14 Power of Attorney and subsequent transfer by the sale deed of the year, 2013 are all acts of fraud and hence, vitiated and in so far as the case land is concerned, the petitioner and opposite party Nos. 7 to 9 are continuing in physical possession of the same peacefully, uninterruptedly and continuously without any disturbance and so called the vendees, namely, opposite party No.10 and 11 do not derive any title and possession over the same and at best being the purchasers of a joint undivided property, remedy for them lies in a suit for partition and not otherwise. In the aforesaid backdrop, one revision was filed by the LRs of late Maheswar Barik against such successors of Bula Jena and considering the same order dated 19th June, 2013 in Revision Case No.363 of 2013 was passed with a direction and remand for the learned Tahasildar, Bhubaneswar-II to hold inquiry at the field level and thereafter, to dispose of the matter according to law. The other proceeding in Revision Petition No.1556 of 2014 was initiated at the behest of the petitioner in respect of the Hal Khata No.205, Plot Nos. 1411 and 1413 corresponding to Sabik Khata No.36, Plot Nos.946 and 948, in total, measuring an area of Ac.0.34 decimals. As earlier stated, the revision filed by the LRs of late Maheswar Barik was disposed of with a remand, whereas, the one filed by the petitioner was dismissed on such other grounds besides limitation. The learned Board of Revenue and Commissioner of Settlement and Consolidation, Bhubaneswar, Odisha disposed of the respective revisions in exercise of powers under Section 15(b) of the Act. Both the impugned orders under Annexures-1 and 2 respectively are under challenge by the petitioner.
Page 4 of 145. Opposite party Nos.3 to 6 filed counter affidavits and it is pleaded therein that the revision proceedings are in respect of different parcels of the land and as such, there is no resemblance in the Sabik record of rights vis-à-vis description of schedule properties. It is claimed that Revision Petition No.363 of 2013 is filed by the LRs of late Maheswar Barik through their Power of Attorney Holder to record their names in respect of Plot Nos. 1410 and 1412, Hal Khata No.205 corresponding to Sabik plots of Khata No.197 on the basis of the sale deed i.e. RSD No.1579 of 1952 as their predecessor had purchased the same from the Sabik recorded tenant, namely, Bula Jena but as the Hal record of rights in respect thereof are published in the names of the latter‟s successors, the proceeding was set in motion and in exercise of jurisdiction under Section 15(b) of the Act, the case was remanded back for inquiry and disposal by the learned Tahasildar, Bhubaneswar and after the disposal of the revision, Mutation Case No. 17860 of 2013 was initiated and after notice and general proclamation, the record of rights in respect of the land in question was corrected with the issuance of Mutation RoR in favour of opposite party Nos.10 and 11 since, they purchased the same through a registered sale deed dated 11th February, 2013. The further pleading is that the petitioner was never in picture at any point of time and was also not arrayed as a party in Revision Petition No.363 of 2013 arising out of OSS Case No.479 of 2011 on account of his identity not as the son of late Maheswar Barik and considering the facts and circumstances of the case, learned Member, Board of Revenue, Odisha dismissed the revision filed by him arising out of OSS Case Page 5 of 14 728 of 2018 and such a decision is, hence, perfectly justified, inasmuch as, the petitioner is a stranger and impersonated himself as the son of late Maheswar Barik with a demand to record his name along with other LRs in respect of the plots appertaining to Hal Khata No.205. It is stated that Sabik RoR in respect of the schedule land stood jointly recorded in the names of one Kanakamali Dei and Damodar Ray but the petitioner claims Bula Jena and Muli Jena as the recorded tenants and in such view of the matter, Revision Petition No.1556 of 2014 was dismissed upon verifying the evidence on record. At last, it is pleaded that the writ petition is not maintainable, since, the revision filed by the petitioner was defective with improper description of plots corresponding to Sabik RoR published in the year 1930-31, which was the reason for learned Board of Revenue, Odisha to dismiss the proceeding, again on the ground that there is inordinate delay of 40 years in filing the same, hence, therefore, the impugned order therein does not suffer from any impropriety. With such other facts pleaded on record, the plea of the petitioner has been refuted by opposite party Nos.3 to 6 with a contention that the Power of Attorney was duly executed and thereafter, opposite party No.6 alienated the case land in favour of opposite party Nos.10 and 11, which cannot be said to have been held behind the back of the executants or without their knowledge and hence, void ab initio. A copy of the Power of Attorney is referred to as at Annexure-A/3 besides the rent receipts (B/3 series) in respect of Hal RoR Khata No.205 and corresponding to Mutation Khata No.474/4428. With the above Page 6 of 14 grounds, opposite party Nos.3 to 6 pleaded for dismissal of the writ petitions in limine.
6. Heard Mr. Tripathy, learned counsel for the petitioner, Mr. Bhokta, learned counsel for opposite party Nos.3 to 6, Mr. Biswal, learned counsel for opposite party Nos.7 to 9 and Mr. Pradhan, learned ASC for opposite party No.1 and 2.
7. Mr. Tripathy, learned counsel for the petitioner would submit that on the one hand, the revision is filed by the LRs of late Maheswar Barik was entertained followed by a remand by an order dated 19th June, 2013 of learned Member, Board of Revenue, Odisha but on the other hand, the proceeding in Revision Petition No. 1556 of 2014 corresponding to OSS Case No. 728 of 2018 was dismissed on the ground of delay and laches with a conclusion that the schedule land has not been described in consonance with the Sabik record of rights. The contention is that without knowledge of the petitioner and opposite party Nos.7 to 9 and despite the fact that they are also the LRs of late Maheswar Barik, who continued to possess the plots in question, the other named LRs, such as, Musi Barik, Bhimsen Barik and Sadananda Barik executed the Power of Attorney in favour of opposite party No.6 in the year, 2004 through a deed dated 7th June, 2004 and though, it was cancelled on 23rd May, 2012, the alienation was effected in favour of opposite party Nos.10 and 11. Any such disposal of the case land on the strength of a Power of Attorney executed in favour of opposite party No.6 followed by a cancellation in the year, 2012 is invalid and in so far as the possession is Page 7 of 14 concerned, it is still with the petitioner and opposite party Nos.7 to 9 being the successors of late Maheswar Barik.
8. As earlier stated, Revision Petition No.363 of 2013 was disposed of by order dated 19th June, 2013 with a remand, whereas, the revision of the petitioner was dismissed by order dated 5th June, 2018 by learned Commissioner of Settlement and Consolidation, Bhubaneswar, Odisha. Admittedly, the petitioner was not a party to the proceeding in Revision Petition No.363 of 2013 filed by the other LRs of late Maheswar Barik. In fact, the status of the petitioner is questioned by opposite party Nos.3 to 6 by claiming that he is not the son of late Maheswar Barik. As far as, the decision in Revision Petition No.1556 of 2014 is concerned, it was held that there are inconsistencies in Sabik plot details vis-à-vis the case land recorded as the RoR published on 7th February, 1931 neither indicated the name of Bula Jena nor anything about the oral mortgage and that apart, there is no any evidence on record to show that the petitioner to be the son of late Maheswar Barik and he failed to successfully counter the defence of opposite party Nos.3 to 6 besides, no sufficient reason was shown for condoning delay of 40 years.
9. As far as the delay in filing of the revision is concerned; to consider such a question, it is necessary to refer to Section 15 of the Act and the same is extracted hereinbelow:
"15. The Board of Revenue may in any case direct-
(a) of its own motion the revision of any record-
of-rights, or any portion of a record-of-rights at Page 8 of 14 any time after the date of final publication under sub-section (2) of section 12 but not so as to affect any order passed by a Civil Court under section 24;
(b) on application, made within two years from the date of final publication under sub-section (2) of section 12, the revision of record-of-rights or any portion thereof whether within the said period of two years or thereafter but not so as to affect any order passed by a Civil Court under section 24:
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."
Section 15(b) of the Act provides that the application shall have to be made within a year from the date of final publication under Section 12(b) for revision of record of rights or any portion thereof, whether, within the said period or thereafter and the same can be entertained by the Board of Revenue.
10. Law is no more res integra that revision can be entertained even after one year as stipulated in Section 15(b) of the Act. In Kashi Prasad Modi Vrs. Chaitanya Dev and Radhakanta Dev Bada Matha, Puri, this Court in W.P.(C) No.3229 of 2016 by a decision dated 20th July, 2023 held and concluded that an application under Section 15(b) of the Act, beyond one year not to be time barred, in view of the expression „or thereafter‟. It is held therein that maintainability of revision after the period of one year of final publication Page 9 of 14 under Section 12(b) of the Act is permissible, since such an exercise is essentially an act of scrutiny in order to remove any defect or grant of relief upon improper exercise of jurisdiction by a lower Court. A decision of the Apex Court in Shri Raja Laxmi Dyeing Works Vrs. Rangaswamy Chettiar (1980) 4 SCC 259 is referred to therein, which is to the effect that revisional jurisdiction is analogous to a to a power of superintendence and may sometimes is exercised even without it being invoked by a party and the conferment of such jurisdiction is generally for the purpose of keeping the Tribunals sub-ordinate to the Revisional Authority within the bounds of their jurisdiction to make them act according to the well-defined principles of justice. With a reference to Sections 34 and 35 of the Act, this Court in Kashi Prasad Modi (supra) held that the revision is maintainable. In the case at hand, the petitioner demanded the delay to be condoned in terms of Section 5 of the Limitation Act. In Krushna Chandra Mahakul Vrs. State of Orissa and others 2003 (II) OLR 306, a Division Bench of this Court held that Section 5 of the Limitation Act applies where any appeal or application is filed with delay condonable provided sufficient cause is shown to exist but under Section 15(b) of the Act, there is no such requirement and therefore, even if, the revisioner has not been able to explain sufficiently the delay in filing of the application, the same cannot be thrown out on such ground of delay and in each case, the Authority entertaining the revision shall have to consider as to whether ends of justice required the application to be received beyond the period of one year or as to whether any valuable right as accrued to some other party on Page 10 of 14 account of delay, for which, it should not be entertained.
Similarly, in Durga Charan Roul and others Vrs. Bhagirathi Roul and others 2017 SCC OnLine Ori 896, this Court analyzed Section 15(b) of the Act with regard to entertainability of the application beyond one year limit without showing any cause and emphasized the importance of balancing procedural rules with substantive justice. So therefore, the settled position of law is that the delay should not always be fatal in so far as a revision filed under Section 15(b) of the Act is concerned and what is more important is to ensure a hearing on the principle of ex debito justitiae, while considering the competing rights of the parties involved.
11. The LRs of late Maheswar Barik filed the revision in 2013 and the other revision by the petitioner in 2014. The legality of the alienation in favour of opposite party Nos.10 and 11 by opposite party No.6 on the basis of a Power of Attorney subsequently cancelled has been questioned by the petitioner by stating that the deed dated 7th June, 2004 was not within his knowledge and opposite party Nos.7 to 9. Such alienation through a sale deed in 2013 by opposite party No.6 is questioned with a claim that the petitioner and opposite party Nos.7 to 9 are continuing in possession of the case land and since, the same was achieved through a Power of Attorney cancelled on 23rd May, 2012, opposite party Nos.10 and 11 did not derive any interest in respect thereof. As earlier mentioned, the locus standi of the petitioner is challenged by the other LRs of late Maheswar Barik justifying the impugned decision of opposite party No.1 in Revision Petition No. 1556 of 2014 Page 11 of 14 corresponding to OSS Case No.728 of 2018. As far as the revision proceeding before the learned Member, Board of Revenue, Odisha is concerned, it has suffered a remand for a decision by the learned Tahasildar, Bhubaneswar, namely, opposite party No.2, which in the considered view of the Court is impermissible. This Court in Siba Prasad Sahu Vrs. Revenue Divisional Commissioner (Central Division), Cuttack and others 2007 (Supp. I) OLR 281 held that the revision cannot be remanded for its disposal by the Tahasildar, rather it shall have to be entertained by the Revisional Authority to give finality to the dispute between the parties. In earlier decisions of this Court in Sarat Chandra Sahu Vrs. Commissioner of Land Records and Settlement, Orissa, Cuttack and others (1996) 82 CLT 321 and Harihar Mohapatra and others Vrs. Commissioner of Land Records and Settlement, Orissa and others 1998 (II) OLR 495 referred to in Smt. Bijaya Chatterjee Vrs. Commissioner, Land Records and others 2000 II OLR 349, it has been concluded that the revision under the Act cannot be remanded for final decision and the Commissioner may call for a report from the Tahasildar instead and hence, quashed such remand. In the case at hand, Revision Petition No.363 of 2013 has been remanded with a direction to opposite party No.2 to hold an inquiry and to dispose of the matter according to law. Of course, such remand by an order dated 19th June, 2013 is not under question but considering the plea of the petitioner in Revision Petition No.1556 of 2014 with the claim vis-a-vis the case land though held to be not properly described with reference to Sabik Record of Right of 1930-31, the Court is of Page 12 of 14 the view that not only there be a need for a fresh decision by opposite party No.1 with respect to Revision Petition No.363 of 2013, a disposal to be achieved along with Revision Petition No.1556 of 2014 considering the plea advanced by the respective parties. In view of the settled law as discussed hereinbefore on limitation and remand of a revision, the Court is inclined to restore both the proceedings for an analogous hearing and disposal according to law providing an opportunity for the petitioner to remove all such defects in the revision filed by him with regard to the Sabik Record of Rights in respect of the suit schedule properties, whether to be one and the same or separate and at the same time, proving the locus standi as his status as the son of late Maheswar Barik is disputed by opposite party No.6. To conclude, the Court is of the humble view that despite delay in filing of the revision by the petitioner and when the other one is of 2013, remand of which, is held not permissible, an analogous hearing of both the proceedings by opposite party No.1 would serve the purpose and meet the ends of justice.
12. Hence, it is ordered.
13. In the result, the writ petitions stand allowed with a direction to opposite party No.1 to dispose of the proceedings in Revision Petition No.363 of 2013 and Revision Petition No.1556 of 2014 after proper notices to all the parties involved followed by a decision at the earliest preferably within three months from the date of receipt of a copy of this judgment taking into account the discussions and observations made herein before and as a logical sequitur, the impugned orders Page 13 of 14 dated 19th June, 2013 and 5th June, 2018 passed therein are hereby set aside.
14. In the circumstances, there is no order as to the costs.
(R.K. Pattanaik) Judge Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: OHC, CUTTACK Date: 04-Apr-2025 10:55:29 Page 14 of 14