Orissa High Court
Dvijottam Biswal vs Menaka Biswal & Others on 12 December, 2014
Author: B.K.Nayak
Bench: B.K.Nayak
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.13699 of 2014
An application under Articles, 226 and 227 of the Constitution of India.
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Dvijottam Biswal ... ... Petitioner.
Versus.
Menaka Biswal & others ... ... opp.parties.
For Petitioner : M/s. Ramakanta Mohanty,
D.Mohanty, D. Varadwaj &
S. Mohanty.
For opp.parties : M/s. Upendra Ku. Samal,
C.D.Sahoo, S.P. Patra &
S. Naik.
PRESENT
THE HON'BLE SHRI JUSTICE B.K.NAYAK
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Date of hearing : 11.11.2014 : Date of judgment: 12.12.2014
B.K.NAYAK, J.In this writ petition the petitioner challenges the order dated 28.06.2014 (Annexure-1) passed by the Additional Sub-Collector-cum- Additional Settlement Officer, Jajpur-opposite party no.3 in Appeal Case No.16 of 2014.
2. The disputed land appertains to Plot No.5, Ac.1.13 decimals under Sabik Khata No.147 corresponding to Not Final Hal Settlement Plot No.223/1433 under Not Final Hal Settlement Khata No.497 (Ka) in mouza-Chorda, P.S.Jajpur Road under Sukinda Tahasil.
3. It is stated by the petitioner that Menaka Biswal (opposite party no.1), who is the paternal grand-mother of the petitioner, was the 2 original owner of the case land. During the minority of the petitioner, by Registered Gift Deed No.2149 dated 28.09.1999, opposite party no.1 gifted away the disputed land to the petitioner. The petitioner through his father guardian took possession of the land and got it mutated in his favour and accordingly Mutation Khata No.147/1 was prepared in his name. During the current settlement draft R.O.R. vide Annexure-2 was prepared in the name of the petitioner. It is alleged that at the behest of the daughters of opposite party no.1 misunderstanding between the petitioner's father and opposite party no.1 arose. Opposite party no.1 filed Civil Suit No.395 of 2007 against the petitioner and his parents in the court of Civil Judge (Senior Division) 1st Court, Cuttack, challenging the validity of the gift deed executed by her in favour of the petitioner alleging that the gift deed was a forged document and prayed to cancel the said deed. The petitioner and his parents are contesting the suit by filing written statement denying the allegations made in the plaint. The suit is now subjudice. While the suit is pending, opposite party no.1 has executed a registered deed on 06.12.2013 (Annexure-5) unilaterally cancelling the gift made in favour of the petitioner. After coming to know about such deed of cancellation, the petitioner has filed a counter claim in the suit praying to declare the cancellation deed as illegal and inoperative.
While the matter stood thus, opposite party no.1 filed Appeal Case No.16 of 2014 under Section 22(2)(a) of the Orissa Survey and Settlement Act praying to record her name in the Not Final R.O.R. in respect of the case land deleting the name of the petitioner. The petitioner 3 filed his objection that on the basis of the cancellation deed executed by opposite party no.1 unilaterally during the pendency of the suit, Not Final R.O.R. (Draft R.O.R.) cannot be corrected. On the basis of the cancellation deed and Amin report, vide Annexure-9 opposite party no.3 passed the impugned order allowing the appeal, even though he has observed that he has no jurisdiction to declare a deed as forged.
4. It is submitted by the learned counsel for the petitioner that since the gift in respect of the disputed land was accepted by the petitioner, opposite party no.1 could not have unilaterally cancelled the gift deed, particularly when the question of validity of the gift deed is sub- judice before the Civil Court. It is also submitted that the deed of cancellation has been created purportedly on the basis of Board of Revenue Circular No.3700/IX-84/11/IGR dated 23.05.2011, as per recital made in the said deed, which has no application to the case in hand. It is further submitted that opposite party no.3 could not have taken recourse to the Amin's enquiry report (Annexure-9), inasmuch as enquiry by the Amin, if any was never conducted in presence of the petitioner or his parents and they were not noticed for any such enquiry. It is, therefore, submitted that opposite party no.3 could not have passed the impugned order for correcting the draft R.O.R. Learned counsel for the petitioner also submits that the Board of Revenue Circular No. 3700/IX-84/11/IGR dated 23.05.2011 issued by the Inspector General of Registration (IGR), Orissa has been subsequently superseded by Board of Revenue Instruction No.5488 dated 28.11.2013, a copy of which has been produced for perusal.
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5. Learned counsel for opposite party no.1, on the other hand, submits that in view of the registered deed of cancellation of gift executed by opposite party no.1, which was in accordance with Circular No.3700 dated 23.05.2011, opposite party no.3 has done nothing wrong in allowing the appeal and directing for correction of the draft R.O.R. in favour of opposite party no.1. He further submits that a fraudulent sale deed can be cancelled unilaterally by the true owner since fraud played by the transferor and the transferee makes the deed void. He also submits that the cancellation of a sale deed cannot be equated with the revocation of a gift deed inasmuch as the transfer under the former is with consideration and under the latter without consideration and as such, there is no bar for unilateral cancellation/revocation of a gift by the donor.
6. The question is whether a gift deed can be unilaterally revoked/cancelled by the donor and whether principle with regard to cancellation of transfer by sale can be equated with the principles governing revocation of a registered gift. Both the parties have relied upon certain decisions of the apex Court as well as different High Courts in support of their respective contentions.
Questions as to whether the gift deed executed by opposite party no.1 in favour of the petitioner was forged or fraudulent and whether the gift was accepted by the petitioner-donee and whether the cancellation deed is valid or not are to be decided in the suit which is still subjudice between the parties. Therefore, this Court is not inclined to give any decision on the questions raised. Authorities under the Orissa Survey 5 and Settlement Act have no power to decide disputed questions of title though they are required to see the prima facie title for the purpose of preparation of R.O.R., which would have merely presumptive value. Therefore, in the impugned order opposite party no.3 has rightly observed that he has no jurisdiction to declare a deed as forged for which the civil court is the competent forum. Since the registered deed of cancellation has been executed revoking the gift, the impugned appellate order cannot be said to be wholly unreasonable or illegal or without jurisdiction, since the appellate authority has taken into consideration the prima facie effect of the cancellation deed. Therefore, the impugned order does not call for interference by this Court in exercise of its writ jurisdiction. This Court, however, directs that final R.O.R. in respect of the disputed land, if published on the basis of the impugned appellate order, shall be subject to the result of the civil suit between the parties as referred to above.
The writ petition is accordingly disposed of.
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B.K.Nayak,J.
Orissa High Court, Cuttack The 12th December , 2014/Gs.