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2007 DIGILAW 290 (ORI)

Harekrushna Samal v. Suryamani Beura

2007-04-25

A.S.NAIDU

body2007
JUDGMENT A.S.NAIDU, J. : The order dated 21.6.1995 passed by Commis¬sioner, Consolidation, Board of Revenue, Orissa, Cuttack in Revision Case No.515/1990 is assailed in this writ application. The said revision petition was filed under Section 36 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter called the O.C.H.P.F.L. Act). After village Begulipada came under consolidation, Land Register was prepared and the disputed land was recorded in favour of opposite party No.1, Suryamani Beura. Assailing the said record¬ing, objection case was filed by the petitioner before the Con¬solidation Officer. The Consolidation Officer allowed the objec¬tion petition and directed that the land should be recorded in the name of the petitioner. An appeal was preferred and the Deputy Director confirmed the findings of the Consolidation Officer. Being aggrieved opposite party No.1 preferred a revision before the Consolidation Commissioner. The said Commissioner allowed the revision and set aside the orders passed by the Consolidation Officer and Deputy Director, Consolidation. The said revisional order as stated earlier, is assailed. 2. The land in question originally belonged to one Madan Samal. For the sake of convenience and better understanding, the genealogy of the joint family is given herein below: Madan Samal Aparti Bai Jagabandhu Bhagawan Harekrishna Krushna Ranjan 3. According to learned counsel for opposite party No.1 there was severance of joint status between the branches of Jagabandhu and Bhagawan and each branch possessed property sepa¬rately. When matter stood thus in the year 1969 Jagabandhu sold his 8 annas share i.e. Ac.0.42 dec. from Sabik plot No.710 and Ac.0.18 dec. from Plot No.718 along with some other lands in favour of opposite party No.1 by registered sale deed dtd.5.12.1969. According to the petitioner as there was no parti¬tion by metes and bounds the sale deed executed by one of the co-sharers (Jagabandhu) alienating the specific portions of the joint family properties was invalid in consonance with the provi¬sions of Article 261 of the Hindu Law. According to the petitioner as there was no parti¬tion by metes and bounds the sale deed executed by one of the co-sharers (Jagabandhu) alienating the specific portions of the joint family properties was invalid in consonance with the provi¬sions of Article 261 of the Hindu Law. It is further submitted that as the sale deed on the basis of which opposite party No.1 being a stranger of the joint family claims title is void, no right and title had accrued to opposite party No.1 and the Com¬missioner acted illegally in allowing the revision petition and setting aside the concurrent orders passed by the Consolidation Officer and Deputy Director and it is a fit case where the order impugned should be set aside. 4. This submission is strongly repudiated by the Mr. Ray, learned counsel for opposite party No.1. According to him there was severance of joint family status and there was a partition by metes and bounds. Consequent upon such partition sale deeds had been executed in the years 1961 and 1975 by favour different members of the family and as such the Commissioner had rightly set aside the concurrent orders passed by the Consolidation Officer and Deputy Director, Consolidation. 5. I have heard learned counsel for the parties at length and perused the records. Article 261 of the Hindu Law clearly stipulates that a co-sharer cannot alienate an undivided property without consent of other co-sharers. Thus the only question which needs to be considered in the present case is as to whether the property sold by Jagabandhu in favour of opposite party No.1 by means of the registered sale deed executed in the year 1969 belonged to joint family or was the exclusive property of Jaga¬bandhu after partition by metes and bounds inter se between the co-shares. Neither the Consolidation Officer nor the Deputy Director had considered the said aspect. The Commissioner ob¬served that there was severance of status and the same has been proved by evidence. There is difference between severance of status and partition by metes and bounds. Neither the Consolidation Officer nor the Deputy Director had considered the said aspect. The Commissioner ob¬served that there was severance of status and the same has been proved by evidence. There is difference between severance of status and partition by metes and bounds. This Court therefore feels that ends of justice and equity will be better served if the impugned judgment Annexure-3 dtd.21.6.1995 passed by the Commissioner, Consolidation, Cuttack is quashed and the matter is remitted back to the Consolidation Officer, Salipur for de novo disposal of objection Case No.1151/1988 after giving oppor¬tunity to parties to prove as to whether there was in fact parti¬tion in the family by metes and bounds between the co-sharers before execution of the sale deed by Jagabandhu in the year 1969. As the matter is pending since long the Consolidation Officer, Salipur is directed to dispose of the case expeditiously. To avoid unnecessary delay, I direct that both parties to appear before the Consolidation Officer, Salipur on 15th May, 2007 along with a certified copy of this judgment. The Consolida¬tion Officer on the said date shall take up the matter and post the same to some other date as per his convenience and dispose of the same as expeditiously as possible preferably within a period of six months. Petition disposed of.