Orissa High Court
Sahadatta Alli Khan vs State Of Odisha And Others on 18 April, 2016
Author: B.R. Sarangi
Bench: Vineet Saran, B.R. Sarangi
ORISSA HIGH COURT: CUTTACK
WRIT APPEAL No. 122 of 2016
In the matter of an appeal under Clause 10 of the Letters Patent
Appeal read with Article 4 of the Orissa High Court Order, 1948.
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Sahadatta Alli Khan ........ Appellant
- versus -
State of Odisha and others ........ Respondents
For Appellant: M/s. S. Mohanty, B.K. Behera, C.R.
Mohanty, A. Dash & S. Pattnaik.
For Respondents: Mr. B.P. Pradhan, Addl. Govt. Adv.
(For Respondent nos.1 to 5)
PRESENT:
THE HON'BLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HON'BLE DR. JUSTICE B.R.SARANGI
Date of Hearing: 08.04.2016 :: Date of Judgment:18.04.2016
Dr. B.R. Sarangi, J. The appellant, being the writ petitioner, has filed
this appeal against a common order dated 08.02.2016 passed by
the learned Single Judge of this Court in W.P.(C) No. 17633 of
2015 and W.P.(C) No. 1534 of 2016, by which the order passed by
the authorities in Mutation Appeal as well as Mutation Case have
been set side, leaving open to the parties to approach the
competent Court to get a succession certificate and also directing
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the parties to maintain status quo over the property in question till
obtaining such certificate.
2. The factual matrix of the case, in hand, is that Asraf
Alli Khan, being the owner of the property in question, died on
25.04.1984. The appellant claiming to be his son, filed Mutation Case No. 1147 of 2012 to change the name of the recorded owner and mutate the schedule land in his favour. The Tahasildar, Junagarh, after due inquiry, allowed the Mutation Case and deleted the name of Asraf Alli Khan and issued Record of Right (ROR) in the name of the appellant. Amir Alli Khan, claiming to be the brother of the deceased-Asraf Alli Khan objected to such recording and filed Mutation Appeal No. 1 of 2014 before the Sub-Collector, Dharamgarh alleging that the appellant is his sixth son and he left him in the house of his elder brother as he had no male child. Therefore, the appellant has falsely mutated the land in his favour though he has got a vested right over the said property. The Sub- Collector, Dharamgarh vide order dated 07.08.2015 allowed the said Mutation Appeal and remanded the matter back to the Tahasildar, Junagarh for fresh disposal. Being aggrieved by such order of Sub-Collector, Dharamgarh, the appellant filed W.P.(C) No. 17633 of 2015.
3. While the matter thus stood, the appellant wanted to sell an area of Ac.0.10 dec. of land for his urgent need of money 3 for his treatment and following the formalities, received the consideration money from the purchaser, Baktiar Alli Khan and when the appellant submitted his registered sale deed, the Sub- Registrar, Dharamgarh did not accept the said deed in view of the letter of the Tahasildar dated 17.10.2015 intimating him not go for any kind of registration of the scheduled land as per the order dated 30.09.2015 passed by this Court in W.P.(C) No. 17633 of 2015. Thereafter, the appellant produced the certified copy of the order dated 30.09.2015 passed in the said writ petition, wherein no order not to register the scheduled land has been passed by this Court. After receipt of the same, the Sub-Registrar, Dharamgarh sought for clarification from the District Registrar, Kalahandi for registration of the scheduled land, but no clarification was given by the District Registrar, Kalahandi in spite of the representation made by the appellant on 26.10.2015 to accept the sale deed for registration. As no clarification was received, the appellant filed W.P.(C) No. 1534 of 2016 seeking for direction for registration of the sale deed.
4. Both W.P.(C) No. 1534 of 2016 and W.P.(C) No. 17633 of 2015 were heard together and disposed of by the learned Single Judge in the impugned order dated 08.02.2016 by which the orders passed in the Mutation Appeal and Mutation Case have been set aside, leaving it open to the parties to approach the competent 4 Court to get a succession certificate and directing the parties to maintain status quo over the property in question till succession certificate is obtained from the competent Court. The appellant being aggrieved by such common order passed by the learned Single Judge, has filed this appeal.
5. Mr. S. Mohanty, learned counsel for the appellant strenuously urged that there is no dispute that the appellant is not the son of the deceased- Asraf Alli Khan as revealed from the Voter Identity Card as well as educational certificates. So far as the claim made by the Amir Alli Khan that the appellant is his sixth son without any supporting documents is concerned, the same cannot sustain in the eye of law. It is further urged that the learned Single Judge, without considering the materials available on record, set aside the orders passed in the Mutation Case as well as in the Mutation Appeal, without application of mind. According to him, as per Rule 34 of the Orissa Survey Settlement Rules, 1962, the Tahasildar, being the competent authority to correct the ROR after the death of the father of the appellant, has rightly allowed the Mutation Case and issued the ROR in his favour, thereby no illegality or irregularity has been committed by the Tahasildar in directing mutation of the property in favour of the appellant. But in Mutation Appeal the Sub-Collector, Dharamgarh set aside the order passed in Mutation Case and directed the Tahasildar to consider 5 afresh by giving opportunity of hearing to all the parties. As Mutation Case has been heard without giving any opportunity to Amir Alli Khan, he preferred appeal before the Sub-Collector. It is further urged that after the death of Asraf Alli Khan, the property devolved upon the appellant and therefore, Amir Alli Khan, who is the brother of Asraf Alli Khan, cannot have any right to claim mutation of the property in his favour.
6. Mr. B.P. Pradhan, learned Addl. Government Advocate for the State has raised a preliminary objection with regard to maintainability of the writ appeal on two counts, namely,
(i) since by a common order dated 08.02.2015, the learned Single Judge has disposed of two writ petitions bearing W.P.(C) No. 17633 of 2015 and W.P.(C) No. 1534 of 2016, the appellant could have preferred two appeals instead of one appeal; and (ii) the order impugned having been passed by the learned Single Judge under Article 227 of the Constitution of India, no appeal lies against the said order. Therefore, he claims for dismissal of the appeal. On merits, it is urged that the appellant having filed Mutation Case, without impleading Amir Alli Khan, who is the brother of the deceased- Asraf Alli Khan and might have a claim over the property, the Tahasildar without considering the same, having allowed the mutation in favour of the appellant, the consequential objection having been made by Amir Alli Khan, the 6 Sub-Collector, Dharamgarh has rightly set aside the Mutation Order and directed the Tahasildar, Junagarh to go for a fresh mutation by affording opportunity to all the parties and therefore, no illegality or irregularity has been committed by the appellate authority by passing such order. It is further urged that the learned Single Judge has neither committed any error apparent on the face of record, nor any illegality, in setting aside the order passed by the Tahasildar in the Mutation Case as well as the order passed by the appellate Court in the Mutation Appeal and leaving it open to the parties to approach the appropriate forum claiming for succession certificate and directing the parties to maintain status quo over the property in question till that period. Therefore, this Court need not interfere with the order passed by the learned Single Judge.
7. In support of his contention with regard to maintainability of the writ appeal against the impugned order passed under Article 227 of the Constitution of India, he has relied upon the judgments of the apex Court in Radhey Shyam and another v. Chhabi Nath and others, (2015) 5 SCC 423, Himalayan Coop. Group Housing Society v. Balwan Singh and others, (2015) 7 SCC 373 and Jogendrasinhji Vijaysinghji v. State of Gujarat and others, (2015) 9 SCC 1.
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8. Having heard the learned counsel for the parties and going through the records, we find that the parties to the proceeding belong to Muslim Community and the law of inheritance under Mohammedan Law is applicable to them. Admittedly, Asraf Alli Khan was the owner of the property and after his death on 25.04.1984, the appellant claiming to be his son, filed Mutation Case no. 1147 of 2012 to record his name in respect of the property in place of the deceased recorded tenant- Asraf Alli Khan, which has been allowed by the Tahasildar on 28.12.2012. But such recording has been objected to by Amir Alli Khan, who preferred Mutation Appeal No. 1 of 2014 before the Sub-Collector on the plea that Asraf Alli Khan died leaving behind one Jamala Khatun and Amir Alli Khan, his brother. The appellant is the son of Amir Alli Khan, who was left with the deceased- Asraf Alli Khan for his education. But without affording opportunity of hearing to them, being the survivors, the property has been mutated in favour the appellant by the Tahasildar in his order dated 28.12.2012. It is stated that while such recording was made, no opportunity of hearing was given, therefore, the Sub-Collector allowed the appeal by setting aside the order passed by the Tahasildar and remitted the matter back to him for fresh disposal by giving opportunity of hearing to the parties by order dated 07.08.2015. The said order of the Sub-Collector, appellate authority, was challenged by the 8 appellant in W.P.(C) No. 17633 of 2015 but during pendency of the said writ petition the appellant wanted to sell Ac. 0.10 dec. of land in favour of the purchaser, but the same having not been allowed by the registering authority, he has preferred W.P.(C) No. 1534 of 2016. Since both the writ petitions arise out of the same transaction, the learned Single Judge heard both the matters together and having came to a definite finding that law of inheritance under the Mohammedan Law is different and succession opens in the death of the title holder, the learned Single Judge set aside the orders passed by the Tahasildar in the Mutation case as well as the order passed by the Sub-Collector in appeal and left open to the parties to approach the competent Court to get Succession Certificate and directed the parties to maintain status quo till Succession Certificate is obtained.
9. On perusing the impugned order, we find that no illegalities or irregularities have been committed by the learned Single Judge in passing the impugned order dated 08.02.2016 so as to warrant interference by this Court.
10. Coming to the question of maintainability, admittedly, against the common order dated 08.02.2016 passed in W.P.(C) No. 17633 of 2015 and W.P.(C) No. 1534 of 2016, this writ appeal has been preferred. As such, the appellant should have preferred two appeals against two writ petitions even when 9 common order has been passed on 08.02.2016. But admittedly, one appeal has been preferred. It is not known against which order in the writ petition, the present appeal has been preferred. Therefore, a single appeal is not maintainable against the common order passed by the learned Single in two writ petitions.
11. Apart from the same, since one writ appeal has been filed against the common order passed in two writ petitions, the same is not maintainable legally and on merits also no infirmity having been committed by the learned Single Judge while passing the impugned order, this Court decides not to go into other questions raised by learned counsel for the State.
12. For the reasons, as aforesaid, we find no merit in the writ appeal, which is accordingly, dismissed. No order as to costs.
Sd/-
(Dr. B.R. Sarangi, J.)
Vineet Saran, C.J. I agree
Sd/-
(Vineet Saran, C.J.)
Orissa High Court, Cuttack
The 18th April, 2016/Ajaya/PKSahoo
True copy
Secretary