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2008 DIGILAW 253 (ORI)

Kanakmanjari Das v. Santosh Kumar Ray

2008-03-27

A.S.NAIDU

body2008
JUDGMENT A.S. NAIDU, J. — The dispute in the present Writ Petition arises out of a proceeding initiated under the Orissa Consolida¬tion of Holdings and Prevention of Fragmentation of Land Act (hereinafter called ‘the Act’). 2. The lands in dispute were the absolute properties of Durga Charan Dey who expired in the year 1990. The two petition¬ers are the daughters of Durga Charan through his wife late Basanta Manjari. It is alleged that opposite party No.2 Smt. Amruti Ray was the second wife of Durga Charan. Through Amruti, it is stated, Santosh Kumar Ray, opposite party No.1 was born. Purshpalata, opposite party No.3, is the wife of Santosh. After the village in which the lands were situated came within the fold of the Act, opposite party No.2 claiming to be the wife of late Durga Charan filed Objection Cases before the Consolidation Offi¬cer, Balia to get the lands left behind by Durga Charan recorded in her name as well as in the name of her son, opposite party No.1. The said claim was strongly refuted by the present peti¬tioners mainly on the ground that Amruti had never married Durga Charan. Thus she could not have claimed to be the wife nor Santosh as the son. The petitioners also filed Objection Cases before the same authority. Both documentary and oral evidence was adduced by the parties before the Consolidation Officer to establish their respective stands. The Consolidation Officer disposed of all the Objection Cases by a common judgment dated 20.7.1998 (Annexure-1) holding that opposite party Nos.1 and 2 being the legally married wife and son respectively of late Durga Charan Ray were entitled to a share. The said judgment of the Consolidation Officer was as¬sailed by the present petitioners before the Deputy Director of Consolidation, Range-II, Cuttack in Consolidation Appeal No.197 of 1998. The Deputy Director after going through the merits came to the conclusion that the authorities under the Act had no jurisdiction to decide the status of a person, and by order dated 30.4.1999 (Annexure-2) reversed the order of the Consolidation Officer and directed that the present petitioners being the daughters of Durga Charan through his first wife were exclusively entitled to the lands left behind by Durga Charan. The order Annexure-2 was assailed by opposite party Nos.1 to 4 before the Commissioner of Consolidation, Cuttack, vide Consolidation Revi¬sion No.1356 of 1999. The order Annexure-2 was assailed by opposite party Nos.1 to 4 before the Commissioner of Consolidation, Cuttack, vide Consolidation Revi¬sion No.1356 of 1999. The Commissioner after hearing learned counsel for the parties held that the Deputy Director in the appeal had wrongly opined that the Consolidation authorities had no power to adjudicate the matter relating to status of a party. He observed that while deciding the question of right, title and interest of a party, the authorities have jurisdiction to decide the question of status of a person which is consequential. The Commissioner confirmed the findings of the Consolidation Officer to the extent that opposite party No.2 Amruti was the second wife and opposite party 1 was the son of Durga Charan, but then held that as the second marriage of Durga Charan was cele¬brated during subsistence of the first marriage, the same was void. As such, Amruti could not claim any title as wife of Durga Charan. But then, opposite party No.1 Santosh having born out of an invalid marriage was treated to be an illegitimate son and as such was held to be entitled to a share in the property. On the basis of such conclusion the Commissioner allowed the Revision in part. The Commissioner also held that the sale deeds executed by Durga Charan in favour of the opposite parties were valid docu¬ments. 3. Mr. Mohanty, learned counsel for the petitioners, assails the order passed by the Commissioner mainly on the ground that the said authority committed an error in holding that San¬tosh, opposite party No.1, was an illegitimate son of Durga Charan while coming to the conclusion that Amruti was not the wife of Durga Charan. He further submitted that the presumption that only because Amruti was staying with Durga Charan as husband and wife could not lead to the conclusion that Santosh was the son of Durga Charan through Amruti. According to Mr. Mohanty, the documents relied upon by the opposite parties were manufactured for the purpose of litigation and that the sale deeds executed by Durga Charan were nominal ones and by that no title ever passed. These submissions are strongly repudiated by Mr. Dhal, learned counsel appearing for the opposite parties. According to him, Amruti and Durga Charan were staying as husband and wife after their marriage and out of the said wedlock Santosh, oppo¬site party No.1, was born. These submissions are strongly repudiated by Mr. Dhal, learned counsel appearing for the opposite parties. According to him, Amruti and Durga Charan were staying as husband and wife after their marriage and out of the said wedlock Santosh, oppo¬site party No.1, was born. He submitted that Basanta Manjari, the first wife of Durga Charan expired and Amruti continued to be the sole wife of Durga Charan. Thus there is no force in the submis¬sions made by Mr. Mohanty. Relying upon both oral and documentary evidence adduced before the Consolidation Officer, Mr. Dhal tried to convince this Court that there are enough materials to reveal that in fact opposite party No.2 Amruti was the wife of Durga Charan and Santosh was son of Durga Charan through Amruti. He further submitted that Durga Charan was the absolute owner of the property. He had no sons. During his lifetime he had executed sale deeds in favour of opposite party No.3 alienating some properties and got them registered. By virtue of the said regis¬tered sale deeds opposite party No.3 had acquired valid title to the disputed properties. He submitted that the order passed by the Commissioner does not suffer from any illegality or infirmity calling for interference of this Court. 4. This Court heard learned counsel for the parties dili¬gently and perused all the materials available on record meticu¬lously. This Court also examined the soundness of the orders passed by the authorities below. Two pertinent aspects are in¬volved in this case. First, whether the Consolidation authorities had right to decide the question of status of a party, and sec¬ondly, who is an illegitimate child. So far as the first aspect is concerned, the law is no more res integra that while deciding the question of right, title and interest in respect of a proper¬ty the Consolidation authorities have the power to decide the status of a person which is consequential to the main issue. Thus the Deputy Director had committed an error, which finding was rightly negatived by the Commissioner in Revision. 5. In the case at hand, the status of the present opposite parties was in dispute from the very initial stage. All the parties were conscious of the issue. They adduced sufficient evidence, both oral and documentary, to substantiate their re¬spective claims. Thus the Deputy Director had committed an error, which finding was rightly negatived by the Commissioner in Revision. 5. In the case at hand, the status of the present opposite parties was in dispute from the very initial stage. All the parties were conscious of the issue. They adduced sufficient evidence, both oral and documentary, to substantiate their re¬spective claims. Perusal of the materials leads to the conclusion that there was no dispute with regard to the fact that opposite party No.2, Amruti was staying with Durga Charan and they were accepted as husband and wife by all. Santosh was born to them. The Consolidation Officer has discussed the evidence in extenso and has held that marriage between Amruti and Durga Charan could not be established beyond all reasonable doubts. That apart, evidence are there to reveal that Durga Charan claimed to have married Amruti during the lifetime of his first wife Basanta Manjari. Thus the marriage between Durga Charan and Amruti could not be treated to be a valid one as the first wife of Durga Charan was alive. Durga Charan during his lifetime had executed several documents indicating that Amruti was his wife. The elec¬toral roll of 1985 and 1995 also reflected that Amruti was the wife of Durga Charan. Basing upon such evidence, the Consolida¬tion Officer held that Santosh was born to Amruti through Durga Charan. However he came to the conclusion that the marriage between Amruti and Durga Charan was not a valid one. The said finding has been confirmed in revision. After going through the materials this Court also finds no reason to interfere with the said finding of fact and confirms the conclusion that Amruti, opposite party No.2, was not entitled to any property left behind by Durga Charan. 6. Discussion of the evidence, however, reveals that Santosh was born to Amruti through Charan. According to this Court, a child born not out of lawful wedlock of his parents has to be called an illegitimate child. Therefore, the status of Santosh would be that of an illegitimate son. In consonance with the provisions of the Hindu Law, an illegitimate son has a right to his father’s property. That being so, Santosh had acquired valid right, title and interest, as per his share, on the proper¬ties left by Durga Charan. The conclusions arrived at by the revisional authority thus suffer from no infirmity. In consonance with the provisions of the Hindu Law, an illegitimate son has a right to his father’s property. That being so, Santosh had acquired valid right, title and interest, as per his share, on the proper¬ties left by Durga Charan. The conclusions arrived at by the revisional authority thus suffer from no infirmity. This Court, therefore, finds no reason to interfere with the revisional order Annexure-3 and dismisses the Writ Petition. Petition dismissed.