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2007 DIGILAW 424 (ORI)

Kasinath Behera v. Commissioner of Consolidation

2007-06-18

A.S.NAIDU

body2007
JUDGMENT A.S.NAIDU, J. : The contesting parties in these two OJCs as also the facts and points of law involved therein being the same, both the OJCs were heard analogously. 2. The petitioner who is same in both the OJCs challenge the orders dated 20.5.1993 passed by the Commissioner of Consoli¬dation, Bhubaneswar in Consolidation Revision Nos.1124 and 1125 of 1991 dismissing the same, mainly on the ground that the said revisional authority neither properly appreciated the facts nor the law involved in the cases and, as such, the same cannot be sustained. 3. The property in dispute in both the OJCs originally stood recorded in the name of Agani Biswal and Banchha Biswal in the 1928 Settlement with Sthitiban status. The said lands were part and parcel of intermediary estate of Emar Math of Puri. It is submitted that by two registered sale deeds dated 4.5.1935 and 7.3.1938 the said properties were sold by Agani and Banchha in favour of Sudam Behera and Khudei Behera. After demise of Sudam and Khudei their legal representatives and successors, it is averred, remained in peaceful possession of the said property. Some of those legal representatives alienated that property in favour of present petitioner Kasinath and Manguli Behera, the deceased husband of opposite party No.6 Paramani Behera. After their purchase, petitioner Kasinath and Manguli possessed the said property by constructing their residential houses and residing there. While matter stood thus, the interme¬diary, i.e. Mahant Maharaj of Emar Math due to non-payment of rent in respect of the said properties filed Rent Suits before the Rent Officer, Puri which were registered as Rent Suit Nos.1265 of 1959-60 and 1262 of 1959-60 for realization of arrear rents against Dharmu Behera and Bali Behera, the legal represen¬tatives and successors of the original tenants. Both the said Rent Suits were decreed and thereafter Execution Case Nos.1180 of 1963-64 and 1231 of 1962-63 were initiated before the Rent Execu¬tion Officer, Puri Coming to know about the said fact, the present petitioner filed two separate applications in those two Execution Cases under Section 228(2) of the Orissa Tenancy Act praying to set aside the aforesaid sales. Both the said Rent Suits were decreed and thereafter Execution Case Nos.1180 of 1963-64 and 1231 of 1962-63 were initiated before the Rent Execu¬tion Officer, Puri Coming to know about the said fact, the present petitioner filed two separate applications in those two Execution Cases under Section 228(2) of the Orissa Tenancy Act praying to set aside the aforesaid sales. According to the peti¬tioners the said petitions were allowed by orders dated 10.10.1968 and 16.9.1968, the sales were set aside, but then the Rent Execution Officer directed the petitioner to deposit the entire rent decreed in the aforesaid two Rent Suits and in com¬pliance with that direction the petitioner deposited the same on 3.1.1968. It is averred that on the basis of a petition filed for mutation of the disputed property, the Tahsildar, Kakatpur regis¬tered Mutation Case No.625 of 1984 and after observing all para¬phernalia recorded the disputed lands in the name of the peti¬tioner and corrected the ROR accordingly. The village where the lands situate came under consolidation operation by virtue of a Notification issued under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. Before the Consolidation Officer, Gop,. the contesting opposite parties filed two Objection Cases under Section 9(3) of the aforesaid Act, being numbered as 998 and 999 of 1989, praying to record the disputed property in their names on the basis of a registered sale deed dated 16.7.1984. The said Objection Cases were resisted by the petitioner mainly on the ground that the sale deed relied upon by the said opposite parties had been set aside in a Rent Suit. The said opposite parties contended that the order passed in the Rent Suit having been assailed in appeal, the appellate authority remanded the matter to the Rent Officer with direction to him to realize the decretal dues and since no amount was paid the sale was confirmed by order dated 14.3.1973. Thereafter the auction-purchaser sold the disputed property to the said opposite parties by the aforesaid sale deed. The Consol¬idation Officer having rejected the said Objection Cases, the said opposite parties preferred appeals before the Deputy Direc¬tor of Consolidation, registered as Consolidation Appeal Nos.115 and 116 of 1990. Thereafter the auction-purchaser sold the disputed property to the said opposite parties by the aforesaid sale deed. The Consol¬idation Officer having rejected the said Objection Cases, the said opposite parties preferred appeals before the Deputy Direc¬tor of Consolidation, registered as Consolidation Appeal Nos.115 and 116 of 1990. The Deputy Director allowed the said Appeals mainly on the ground that the property was sold in execution by the Rent Officer and that even after the remand no amount was deposited by the petitioners and thus the sale stood conftrmed. Being aggrieved by the orders of the appellate authority, the petitioner preferred the Consolidation Revisions which were dismissed by orders passed on 20.5.1993 by the Consolidation Commissioner. The said orders are assailed in these OJCs, as stated earlier. 4. According to the learned counsel for the petitioner the revisional authority lost sight of the fact that in a Rent Execu¬tion Case, the sale in question was set aside and the petitioner had been directed to deposit the decretal amount. The said amount was deposited by the petitioner and therefore no title accrued to the auction-purchaser. It is further submitted by him that the revisional authority also lost sight of another fact that even if the petitioner had sold any portion of the disputed property, that could not be take away the rights of the petitioners by any means. 5. The aforesaid submissions by the learned counsel for the petitioner are strongly repudiated by the learned counsel for the contesting opposite parties. It was submitted that the prede¬cessors of the said opposite parties having purchased the disput¬ed property in a Court auction and the sale having been con¬firmed, the right accrued in their favour could not be ignored or taken away by any subsequent order. It was further submitted that the claim of the petitioner in respect of an undivided estate could not be considered on the basis of any subsequent sale. Whatever interest the petitioner and his co-sharer had acquired in respect of the disputed property had lost its force after that property was put to sale in an Execution Case. Learned counsel for these opposite parties contended that the sale was duly conducted by the executing Court and the opposite parties having deposited the decretal amount possession of the disputed property was delivered in their favour and they are continuing in posses¬sion thereof. 6. Learned counsel for these opposite parties contended that the sale was duly conducted by the executing Court and the opposite parties having deposited the decretal amount possession of the disputed property was delivered in their favour and they are continuing in posses¬sion thereof. 6. I have heard learned counsel for the parties at length and perused the materials available on record. The sale deed on the basis of which the petitioner advances his claim cannot be accepted in toto, inasmuch as the sale deed reveals that the vendor and vendee were the one and same person. Even otherwise, the contesting opposite parties acquired right, title and inter¬est to the disputed property pursuant a Court sale which cannot be wiped out lightly. The submission that the Court sale was set aside cannot be accepted without any cogent evidence that in fact the petitioner or his vendor deposited any amount as per the orders passed by the appellate Court. The Consolidation authori¬ties had no jurisdiction to either set aside the said sale deed and/or direct contrary to the order passed in the Execution Case. 7. After going through the appellate and revisional or¬ders, this Court finds that the said authorities did discuss the evidence in extenso. Their orders do not suffer any infirmity or illegality and the conclusions arrived at by them are neither absurd nor is there any error apparent on the face of the re¬cords, calling for interference of this Court exercising Certio¬rari jurisdiction under Article 227 of the Constitution of India. Order accordingly.