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2007 DIGILAW 464 (ORI)

Agadhu Tareni v. Brahmananda Lenka

2007-06-20

A.S.NAIDU

body2007
JUDGMENT A. S. NAIDU, J. : The decision dtd. 19th July, 1995 passed by Commissioner, Consolidation, Bhubaneswar in Consolidation Revision Case No.3015/1993 is assailed by the petitioner in this writ application. The said revision was filed under Section 36 of the Orissa Consolidation of Holdings and Prevention of Fragmen¬tation of Land Act, 1972 (for short “the Act”) challenging the order dated 21.9.1993 passed by Deputy Director, Consolidation in Appeal Case No. 92/1993. The appellate Court confirmed the order dtd.27.2.1993 passed by Consolidation Officer, Gop-Kakatpur in Objection Case No.7052/1991. 2. For appreciating the dispute the short facts of the case may be stated as follows. Admittedly one Paramananda had share in the suit plot measuring Ac.1.09 dec. which were joint family ancestral property. The 1927 settlement records reveal that Ac.0.37 decs. of land was recorded in the name of Paramanan¬da towards his half share out of Plot No.888. Paramananda had three sons namely, Sapani, Bhajani and Arjuni. After death of Paramananda all the three sons got 1/3rd. share out of the afore¬said Ac.0.37 decs. Thus the share of Sapani was Ac.0.18 decs. approx. Bauribandhu, son of Sapani, inherited Ac.0.18 decs. of land allotted in favour of his father Sapani in an amicable partition of the joint family properties. In the year 1959, Bauribandhu by a registered sale deed sold Ac.0.37 decs of land i.e. lands excess to his share to one Fakir Swain. The said Fakir Swain in the year 1963 sold the said land to one Alekh Das. After his purchase in the same year, i.e. in the year 1963 Alekh Das sold the land once again to Draupadi the widow of Bauribandhu. Thus according to the petitioner Draupadi by virtue of a sale deed executed by Alekh Das in her favour in the year 1963 became the absolute owner in respect of Ac.0.37 decs of land. While matter stood thus, Draupadi, incurred certain loan from Ram Chan¬dra Gochhikar and as collateral security she executed a regis¬tered mortgage deed mortgaging Ac.0.37 decs. of land. She having failed to repay the loan, Ram Chandra Gochhikar took delivery of possession of the land mortgaged in his favour through Court. Thereafter he sold the land to one Biswanath Panda on 27.6.1972. In turn Biswanath sold the land to the petitioner on 5.7.1988. By virtue of the aforesaid sale deed the petitioner claims to be the rightful owner of the land measuring Ac.0.37 decs. Thereafter he sold the land to one Biswanath Panda on 27.6.1972. In turn Biswanath sold the land to the petitioner on 5.7.1988. By virtue of the aforesaid sale deed the petitioner claims to be the rightful owner of the land measuring Ac.0.37 decs. land apper¬taining to L.R. Plot No.734 corresponding to Sabik Plot No.888, Khata No.106, Mouza- Barimunda. After the village came under consolidation operation, an Objection Case was filed by the petitioner to record Ac.0.37 decs. of land in his favour. The said case was registered as Objection Case No.7052/1991. The present opposite parties resisted the claim of the petitioner mainly on the ground that the total land of the joint family which was allotted in favour of the common ancestor Paramananda was Ac.0.58 decs. Thus, the share of Sapani, father of the Bauri¬bandhu, was only Ac.0.18 decs. The other 2/3rd property belonged to two other brothers namely, Bhajani and Arjuni. According to the opposite parties the sale deed executed by Bauribandhu in favour of Fakir Swain in the year 1959 though related to Ac.0.37 decs of land, in fact Bauribandhu had right, title and interest only in respect of Ac.0.18 decs. The said land was sold to Fakir Swain. Similarly only Ac.0.18 decs. of land was sold by Fakir Swain to Alekh Das and by Alekh to Draupadi. In other words the sale deed in excess to the title is invalid. It is further sub¬mitted that Draupadi had in fact right, title and interest only in respect of Ac.0.18 decs of land and the mortgage deed executed in respect of Ac.0.37 of land was not justified. 3. The Consolidation Officer after vivid discussion of the evidence, both oral and documentary, and after going through the materials available was satisfied that the share of Bauribandhu in the ancestral property was only Ac.0.18 decs. He further held that the sale deed executed in respect of Ac.0.37 decs. was not justified and the purchaser only acquired title to the extent of Ac 0.18. On the basis of such discussion the objection case was allowed in part and Ac.0.18 decs of land was recorded in favour of the petitioner. 4. Being aggrieved by the said order the petitioner filed an appeal before the Deputy Director, Consolidation. The Deputy Director also after perusing the materials and hearing learned counsel for the parties confirmed the order passed by the Consol¬idation Officer. 4. Being aggrieved by the said order the petitioner filed an appeal before the Deputy Director, Consolidation. The Deputy Director also after perusing the materials and hearing learned counsel for the parties confirmed the order passed by the Consol¬idation Officer. The said confirmed order was assailed before the Commission, Consolidation, Bhubaneswar. The revisional authority after discussing the materials was satisfied that out of Ac.0.37 decs of land Bauribandhu had title only in respect of Ac.0.18 decs. of land. Thus, the decree passed in M.S. No.69/1970 which was confirmed in T.A. No.14/1992/128/90 was confined to the aforesaid Ac.0.18 decs. of land and not to Ac.0.37 decs of land. Accordingly the Commissioner found that the revision had no merit and dismissed the same, thereby confirming the order passed by the Consolidation Officer and the Deputy Director. 5. Learned counsel for the petitioner while assailing the orders forcefully submitted that as the sale deed executed by Bauribandhu in the year 1959 was not challenged the same had become final and at a belated stage the plea taken by the oppo¬site parties that Bauribandhu had title only over Ac.0.18 decs. of land cannot be accepted. This submission is strongly repudiated by learned counsel for the opposite parties. 6. I have heard learned counsel for the parties at length and considered the submissions advanced. Law is well settled that a person can alienate the property over which he has absolute right, title and interest. Admittedly the title of Bauribandhu was only in respect of Ac.0.18 decs. of land. Thus under no circumstances he could have executed the sale deed alienating excess land. Thus the sale deed in respect of Ac.0.37 decs of the land would not confer any title on the purchaser. But then admit¬tedly, Bauribandhu had title in respect of Ac.0.18 decs. of land. Thus the sale deed of the year 1959 executed by Bauribandu con¬fined to that share, i.e. Ac.0.18 decs. Further, it appears that though the sale deed was executed in the year 1959 the opposite parties are in exclusive possession of the land all through. The Consolidation Officer, Deputy Director and the Commissioner have vividly discussed the materials available and have arrived at a decision that the petitioner by virtue of his purchase acquired right, title and interest over Ac.0.18 decs. of land and not over Ac.0.37 decs. of land. 7. The Consolidation Officer, Deputy Director and the Commissioner have vividly discussed the materials available and have arrived at a decision that the petitioner by virtue of his purchase acquired right, title and interest over Ac.0.18 decs. of land and not over Ac.0.37 decs. of land. 7. After going through the impugned order, this Court does not find any infirmity or illegality. Law is well settled that while exercising certiorari jurisdiction, this Court should not interfere with the finding of fact unless it is satisfied that the said finding is either absurd or contrary to the materials available and/or there is an error apparent on the face of the record. None of the said three ingredients are satisfied in the present case. The Commissioner has not committed any error nei¬ther the orders suffer from any infirmity nor the same are ab¬surd. This Court therefore is not inclined to interfere with the impugned order and dismisses this Writ Application. Parties shall bear their own costs. Application dismissed.