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2008 DIGILAW 1108 (ORI)

KRUSHNA CHANDRA NATH v. KULAMANI MOHAPATRA

2008-12-05

A.S.NAIDU

body2008
JUDGMENT : A.S. Naidu, J. - The dispute is with regard to the lands appertaining to Sabik Plot No. 997 measuring an area of Ac. 0.25 decimals and Sabik Plot No. 1021 measuring an area of Ac. 0.32 decimals out of Sabik Khata No. 456 corresponding to L.R. Khata No. 926 comprising of Plot No. 1395 measuring an area of Ac. 0.32 decimals and L.R. Plot No. 1183 measuring an area of Ac. 0.27 decimals situated at Village Aagapal, P.S. Tirtol in the district of Jagatsinghpur. The lands were admittedly part and parcel of the intermediary State of one Sukadev Mohapatra. 2. In course of hearing it is submitted that Kulamani Mohapatra-opposite party No. 1 has expired in the meanwhile. But then because of the order this Court proposes to pass, substitution is felt not necessary at this stage. 3. According to the Petitioner the intermediary had inducted one Karunakar Nanda as tenant by executing a "Hat Pata". Karunakar in the year 1972 sold the said lands to the Petitioner by means of a Registered Sale Deed. Thus the Petitioner acquired title over the lands. It is also submitted that he was not in possession of the lands all through. After the mouza in which the lands situate came within the fold of consolidation operation, Land Register was prepared recording the lands in favour of opposite party No. 1 who claimed to be a tenant under the intermediary and whose name found place 'in the Tenants' Ledger. Objecting to the Land Register no case was filed by the Petitioner before the Consolidation Officer, Kujanga. But then after closure of the proceeding a petition was filed u/s 37(2) of the O.C.H and P.F.L. Act, 1972 (hereinafter referred to as "The Act") before the Director, Consolidation. The revision was allowed and the matter was remanded to the Consolidation Officer for de novodisposal. The Consolidation Officer thereafter initiated a proceeding u/s 11 of the Act and issued notices to the parties. After hearing, the Consolidation Officer directed the Asst. Consolidation Officer, Nachhipur to conduct a spot enquiry, verify the records and submit the report. The Asst. Consolidation Officer after verifying the Jamabandi Register from Revenue Inspector Office, which was produced by the Consolidation Officer submitted a report. The report indicated that the rent was assessed for an area of Ac. After hearing, the Consolidation Officer directed the Asst. Consolidation Officer, Nachhipur to conduct a spot enquiry, verify the records and submit the report. The Asst. Consolidation Officer after verifying the Jamabandi Register from Revenue Inspector Office, which was produced by the Consolidation Officer submitted a report. The report indicated that the rent was assessed for an area of Ac. 0.57 decimals out of Khata No. 456 in the name of Kulamani Mohapatra-opposite party No. 1 and he had been paying land revenue to the State up to 1987-88. The report further clearly revealed that the name of Karunakar Nanda the vendor of the Petitioner did not find place in the Jamabandi Register in respect of the lands appertaining to Sabik Khata No. 456. It was also revealed that said Kulamani was never recognized as a tenant in respect of the disputed land. 4. It is pertinent to mention here that before the Consolidation Officer the Petitioner had failed to file the "Hata Pata" in favour of his vendor Karunakar Nanda. The Tenants' Ledger also did not contain the name of Karunakar. On the basis of such facts, the Consolidation Officer came to the conclusion that Karunakar had absolutely no right, title or interest over the disputed land and as such the sale deed executed in the year 1972 was invalid and no right passed to the Petitioner. On the basis of such finding the Consolidation Officer dismissed the Objection Case. 5. Being aggrieved the Petitioner filed an appeal before the Deputy Director, Consolidation, Range-II, Cuttack. The Deputy Director though did not disturb the finding of the Consolidation Officer that the Petitioner had acquired no right by virtue of the sale deed, observed that the Petitioner was in possession all through and had acquired title by adverse possession. On the basis of such conclusion he allowed the appeal. The said appellate order was assailed before the Commissioner, Consolidation, Cuttack in Consolidation Revision Case No. 557/94. On a threadbare discussion of the entire materials the Commissioner being satisfied that the vendor of the Petitioner, Karunakar Nanda, was never recognized as a tenant by the ex-intermediary, observed that the sale deed executed by him was ab initio void. To establish his case the Petitioner failed to produce any other materials. On a threadbare discussion of the entire materials the Commissioner being satisfied that the vendor of the Petitioner, Karunakar Nanda, was never recognized as a tenant by the ex-intermediary, observed that the sale deed executed by him was ab initio void. To establish his case the Petitioner failed to produce any other materials. The Commissioner after hearing parties, came to the conclusion that the appellate authority acted illegally in arriving at the conclusion that the Petitioner had acquired title to the disputed land by adverse possession. Accordingly, the Commissioner set aside the order passed by the appellate authority and confirmed the order passed by the Consolidation Officer. The said order of the Commissioner is assailed in this Writ Petition. 6. Learned Counsel for the Petitioner forcefully submitted that in view of the clear finding of the Deputy Director that the Petitioner had acquired valid right, title and interest by virtue of his long possession, the Commissioner acted illegally and with material irregularity in allowing the revision by setting aside the order passed by the Deputy Director. These submissions are strongly repudiated by learned Counsel for opposite party No. 1. 7. This Court after perusing the materials available on record finds that fact remains, no Objection Case was filed by the Petitioner within the time prescribed under the Act. Section 14 of the Act reads as follows: Bar on objection: Subject to the provisions contained in Section 15, no question in respect of (a) right, title and interest in land, (b) partition of joint holdings, or (c) valuation of loans, houses, structures, trees, wells and other improvements. Where the question is sought to be raised by a land-owner recorded in the Land Register prepared u/s 6 which question might or ought to have been raised u/s 9 but has not been raised, shall be raised or heard at any subsequent stage of the consolidation proceedings. 8. The provision quoted above make it clear that the doctrine of constructive res judicata shall apply to the present case in as much as the Petitioner though had an opportunity did not raise the objection before the Consolidation Officer. Thus the bar u/s 14 of the Act can not be ignored. 8. The provision quoted above make it clear that the doctrine of constructive res judicata shall apply to the present case in as much as the Petitioner though had an opportunity did not raise the objection before the Consolidation Officer. Thus the bar u/s 14 of the Act can not be ignored. Be that as it may, fact remains, in the case at hand the Petitioner had moved the Director, Consolidation u/s 37 of the Act and in exercise of the power conferred upon him the Director had asked the Consolidation Officer to hear the parties once again. So far as the merit of the case of the Petitioner is concerned, it appears that he has purchased the property in the year 1972 from one Karunakar Nanda who described himself to be a tenant under the ex intermediary. The materials produced before the Consolidation Officer and the report submitted by the Asst. Consolidation Officer coupled with the Jamabandi Register make it very clear that Karunakar Nanda was never inducted as tenant by ex-intermediary. His name also did not find place in the Tenants' Ledger. That apart the Petitioner failed to produce any scrap of paper to reveal that either Karunakar Nanda or he himself was inducted as tenant by the intermediary. No rent receipt showing payment of land revenue to the intermediary or State was produced. Thus the conclusion arrived at by the Consolidation Officer that Karunakar Nanda had no title over the suit land is well established and needs no interference. 9. Once it is held that Karunakar Nanda had no title the Petitioner cannot claim to have acquired any title to the disputed land by virtue of a sale deed said to have been executed by said Karunakar Nanda in his favour. The only question, which needs to be considered is as to whether the Petitioner had acquired title by adverse possession or not. Law is well settled that adverse possession must be adequate and in continuity, in publicity and the plea is required at the last to show when possession became adverse, so that the starting point of limitation against the party affected can be found. (See S.M. Karim Vs. Mst. Bibi Sakina, ). 10. In the case at hand the plea of the Petitioner from the very beginning was that his vendor had been inducted as a tenant in respect of the disputed lands. (See S.M. Karim Vs. Mst. Bibi Sakina, ). 10. In the case at hand the plea of the Petitioner from the very beginning was that his vendor had been inducted as a tenant in respect of the disputed lands. Law is well settled that possession of a tenant is always permissive and such permissive possession cannot be said to be adverse, unless a specific plea is taken. The pleadings reveal that no averment was made at any time with regard to adverse possession. Even otherwise, neither the Petitioner stated nor was any evidence adduced-to establish as to on which date the possession of the Petitioner became adverse to the true owner. There is no evidence as to hostile animus. Thus the basic ingredients required to establish adverse possession are very much lacking in this case. It is no more res Integra that while exercising power of superintendence under Article 227 of the Constitution this Court did not act as an appellate Court. The jurisdiction of this Court is only to rectify the errors, which are very much apparent on the face of the record. Law is well settled that the conclusions arrived at by the Courts below if found not striking to the common sense a Writ Court should not interfere with the same. After going through the orders assailed, this Court finds no error therein and the conclusions arrived at are in consonance with law as well as materials available on record. This Court is therefore not inclined to interfere with the orders passed by the Commissioner, Consolidation confirming the orders of the Consolidation Officer, Kujanga. The Writ Petition is disposed of.