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2005 DIGILAW 444 (ORI)

Keshab Charan Sahoo v. Mahani Charan Rout

2005-07-23

L.MOHAPATRA

body2005
JUDGMENT L. MOHAPATRA, J. — The petitioner in this writ application calls in question the legality of the orders passed by the au¬thorities under the Orissa Consolidation of Holdings and Preven¬tion of Fragmentation of Land Act (hereinafter called ‘the Act’). 2. The case of the petitioner is that he purchased Ac.0.52 decimals land pertaining to M.S. Plot No.1488 under M.S. Khata No.148 and the same has been reflected in the M.S. record of rights published in the year 1982. He has been paying rent to the State Government in respect of the said land and rent receipt for the years 1984, 1989, 1991, 1994, 1996 and 1997 in respect of M. S. Khata No.148 covering the aforesaid plot have been annexed to the writ application. His grievance is that during consolida¬tion operation as against plot No.1488 the area has been reflect¬ed as Ac.0.45 decimals instead of Ac.0.52 decimals and, there¬fore, he filed Objection Case No.1805 of 1992 before the Consoli¬dation Officer for correction of the map on the basis of the record of right, rent receipt and his possession over the same. The Consolidation Officer rejected the objection by order dated 18.5.1994 holding that the area cannot be enhanced to Ac.0.52 decimals. Challenging the said order, the petitioner filed Con¬solidation Appeal Case No.25 of 1994 before the Deputy Director, Consolidation of Holdings, Bhadrak and the same having been dismissed by order dated 5.10.1994, he filed Consolidation Revision Case No.1271 of 1994 before the Joint Commissioner of Settlement and Consolidation, Bhubaneswar. The Revisional Court dismissed the revision by order dated 21.12.1996 and further reduced the area from Ac.0.45 decimals to Ac.0.43 decimals. Challenging the aforesaid order, the writ application has been filed. 3. Shri P. Kar, the learned counsel appearing for the petitioner submitted that Annexure-1, the record of right, stands in the name of the petitioner and the area in respect of six plots including plot No.1488 extends to Ac.0.52 decimals. Annex¬ure-1/1 to 1/6 are the rent receipts showing payment for all the six plots covering an area of Ac. 0.97 decimals. It was further contended by Shri Kar that the record of right standing in the name of the petitioner in respect of plot No.1488 was never chal¬lenged by the opposite party No.1 at any point of time and that the rent receipts clearly indicate possession of the petitioner over the aforesaid plot. 0.97 decimals. It was further contended by Shri Kar that the record of right standing in the name of the petitioner in respect of plot No.1488 was never chal¬lenged by the opposite party No.1 at any point of time and that the rent receipts clearly indicate possession of the petitioner over the aforesaid plot. Shri Kar also relied upon the Annexure-5, a record of right standing in the name of the opposite party No.1 and referring to the said document, it was contended that plot No.1489 belongs to the opposite party No.1 covering an area of Ac.0.20 decimals. According to Shri Kar, the opposite party No.1 was owner in possession of Ac.0.20 decimals in respect of plot No.1489. In the M.S. Map, the same has been reflected as Ac.0.27 decimals and consequently Ac.0.7 decimals had been re¬duced from the area covered by plot No.1488 which belongs to the petitioner. In order to support such contention, reliance was placed on the sale deed executed by the opposite party No.1 in favour of one Maheswar Sahoo wherein it is stated that the oppo¬site party No.1 out of Ac.0.20 decimals from plot No.1489 has sold Ac.0.11 decimals to the said Maheswar Sahoo. The learned counsel also referred to a judgment delivered in Title Suit No.99 of 1993-I by the learned Civil Judge (Jr. Division), Bhadrak wherein the opposite party No.1 was the plaintiff and the suit for permanent injunction was dismissed. On the basis of aforesaid judgment, it was contended by Shri Kar that though there are records to show that the petitioner is the owner in possession of plot No.1488 covering an area of Ac.0.52 decimals, it has been wrongly shown in the map as Ac.0.45 decimals and the balance Ac.0.7 decimals have been added to Plot No.1489 and the area of Ac.0.20 decimals under the aforesaid plot has been enhanced to Ac.0.27 decimals. 4. Shri Dash, the learned counsel appearing for the oppo¬site party No.1 contended that a record of right neither creates nor extinguishes title. When M.S. Map is prepared, not only the records are looked into but also possession of the parties are considered. The petitioner being in possession of only Ac. 0.43 decimals of land out of plot No.1488, the same has been rightly reflected in the map and accepted by the Courts below. When M.S. Map is prepared, not only the records are looked into but also possession of the parties are considered. The petitioner being in possession of only Ac. 0.43 decimals of land out of plot No.1488, the same has been rightly reflected in the map and accepted by the Courts below. Referring to the grounds taken in the writ application, Shri Dash also contended that the petitioner never claimed to be in possession of Ac.0.52 decimals and has stated in the grounds that he was in possession of Ac.0.50 decimals in respect of plot No.1488. 5. After hearing the learned counsel for the parties at length, the first point that requires for consideration is, the order passed by the Revisional Court. Admittedly, during consolidation operation, the area of Plot No.1488 was indicated as Ac.0.45 decimals and the same was challenged by the petitioner by filing objection before the Consolidation Officer and the Deputy Director, Consolidation in appeal but the said Courts never found that the petitioner was in possession of Ac.0.43 decimals. The objection as well as appeal of the petitioner were dismissed by both the authorities on the sole ground that the petitioner was in possession of Ac.0.45 decimals. The said orders were not challenged by the opposite party No.1 in revision and, therefore, there was no occasion on the part of the Revisional Court to reduce the area from Ac.0.45 decimals to Ac.0.43 deci¬mals. On this ground alone, the Revision order is liable to be set aside. Now coming to the merit of the arguments advanced by the learned counsel for the petitioner, it appears from Annexure-I that the petitioner is the owner of the plot No. 1488 covering an area of Ac. 0.52 decimals. Annexures -1/1 to 1/6 clearly indicate that the rent has been paid by the petitioner for differ¬ent years in respect of total Ac. 0.97 decimals including plot No. 1488. This also prima facie supports the case of the peti¬tioner with regard to the claim of possession over Ac. 0.52 decimals land including plot No. 1488. There is no dispute that plot No. 1489 covers an area of Ac. 0.20 decimals and belongs to the opposite party No. 1 as reflected in Annexure-5. Now the question is as to whether the opposite party No. 1 was in posses¬sion of Ac. 0.20 decimals or Ac.0.27 decimals as against plot No. 1489. There is no dispute that plot No. 1489 covers an area of Ac. 0.20 decimals and belongs to the opposite party No. 1 as reflected in Annexure-5. Now the question is as to whether the opposite party No. 1 was in posses¬sion of Ac. 0.20 decimals or Ac.0.27 decimals as against plot No. 1489. The sale deed, Annexure-7, is admittedly executed by the opposite party No. 1 in favour of one Maheswar Sahoo. It is clearly stated in the sale deed that opposite party No. 1 had sold Ac. 0.11 decimals out of Ac. 0.20 decimals from out of Plot No. 1489. Had the area of plot No. 1489 been Ac. 0.27 decimals, the same would have been reflected in the sale deed. In the suit filed by the opposite party No. 1 on which the reliance has been placed by the learned counsel for the petitioner it also appears that the suit had been filed in respect of Plot No. 1489 covering an area of Ac. 0.20 decimals. From the aforesaid documents, it is clear that plot No.1489 covers an area of Ac.0.20 decimals where¬as plot No.1488 covers an area of Ac.0.52 decimals. The only document on which reliance has been placed by the learned counsel for the opposite party No.1 is the map attached to Annexure A/1 wherein the area covered by plot No.1488 has been indicated as Ac.0.43 decimals. Much reliance is placed by the learned counsel for the opposite party No.1 on the said document stating that the said map was signed by the counsel appearing for the petitioner and it was accepted by the Revisional Court. Law is well settled that for the mistake of a counsel a party should not suffer. When the documents clearly show that plot No.1488 covers an area of Ac.0.52 decimals and plot No.1489 covers an area of Ac.0.20 decimals, there was hardly any occasion either to reduce the area of plot No.1488 or enhance the area of plot No.1489. There is nothing on record to show that the opposite party No.1 was in possession of Ac.0.27 decimals of land as against plot No.1489. I am, therefore, inclined to accept the contention of the learned counsel for the petitioner that area of plot No.1488 has been illegally reduced to Ac.0.43 decimals from Ac.0.52 decimals. 6. There is nothing on record to show that the opposite party No.1 was in possession of Ac.0.27 decimals of land as against plot No.1489. I am, therefore, inclined to accept the contention of the learned counsel for the petitioner that area of plot No.1488 has been illegally reduced to Ac.0.43 decimals from Ac.0.52 decimals. 6. I, accordingly allow the writ application and remit the matter back to opposite party No.4 for reconsideration of the revision in terms of observation made by this Court as well as the documents relied upon by the parties. While deciding the revision, the Revisional Authority shall take note of the fact that out of Ac.0.20 decimals from plot No.1489, opposite party No.1 has already sold Ac.0.11 decimals in favour of one Maheswar Sahoo and is left with Ac.0.9 decimals only. Application allowed.