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2008 DIGILAW 67 (ORI)

Golam Khan v. Commissioner, Consolidation, Orissa

2008-01-19

SANJU PANDA

body2008
JUDGMENT S. PANDA, J. — In this writ application, the petitioners have challenged the order dated 27.11.1995 passed by the Consoli¬dation Commissioner, Bhubaneswar in Consolidation Revision Case Nos.263 and 264 of 1983 whereby the Consolidation Commissioner disposed of the said two revisions under Section 36 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred as to “the Act”). 2. The brief facts of the case are as follows : The writ petitioners are the permanent residents of village Bhandagar under Kakatpur Police Station in the district of Puri. Their case is that originally one Bahudi Khan was the owner of the land, who died in the year 1929 leaving behind his three sons, namely, Hamid, Rahim and Ashad Ali and three daughters, namely, Saiban, Haluson and Saliman. Hamid had only one son named Idrish who died on 23.7.1969. The intermediary estate vested in the year 1963 64. A claim case was filed by Idrish Khan, Golam Khan, Murtaja Khan, Mustafa Khan, Solema Bibi, Hawa Bibi and Khatija Bibi. The said claim case was settled in favour of the above seven persons in respect of villages-Lataharan, Bhandaghar and Sadans. But the land situated in village Patasundarpur, being sthitiban in character, was not vested under the Estates Aboli¬tion Act. Hence, there was no settlement in respect of the dis¬puted property situated at Patasundarpur. 3. Some portions of the disputed properties situated at Patasundarpur were acquired for excavation of canal and construction of embankment by the State Government and compensation was awarded in favour of the above seven persons. Idrish Khan being the eldest member of the family suggested to purchase some other properties from out of the compensation money. Hawa Bibi, one of the daughters of Asad ali Khan, trans¬ferred her share in favour of Idrish Khan at the time of her marriage. Hence, remaining six persons became the owners of the property in question. In the meantime, Idrish Khan died and his body was buried by the present petitioners. At the time of his funeral, the expenditures were borne by these petitioners. Before death, Idrish Khan had asked his wife, Solema Bibi to execute a sale deed in favour of the petitioners in respect of all the properties left by him and the properties of wife, Solema Bibi for the funeral expenditure. Thereafter, Solema Bibi lived with the petitioners from 1969-89. Before death, Idrish Khan had asked his wife, Solema Bibi to execute a sale deed in favour of the petitioners in respect of all the properties left by him and the properties of wife, Solema Bibi for the funeral expenditure. Thereafter, Solema Bibi lived with the petitioners from 1969-89. She transferred the entire share of Idrish Khan and her share in favour of Khatija Bibi, wife of Mustafa vide registered sale deed No.1508, dated 5.4.1971. During the year 1973, settlement operation began and during the settle¬ment operation, the land in question was recorded in favour of the petitioners and Khatija Bibi, Marium Bibi and others raised no objection to such recording in favour of the petitioners. Therefore, consolidation operation started in respect of villages Patasundarpur, Lataharan, Bhandagarh and Sadansa. During prepara¬tion of the second part land register, the disputed land was recorded in favour of five members, namely, the petitioners, Khatija Bibi and Solema Bibi. Against such entry in the land register of village Patasundarpur, an objection under Section 9(3) of the Consolidation Act was filed by Marium and others and another objection was filed by Golam Khan and others to delete the name of Solema Bibi. The Consolidation Officer vide his order dated 20.9.1982 rejected the objection filed by the opposite parties on the finding that the land register had been correctly prepared in favour of the rightful owners. He further observed that Marium and her three sisters had never come forward to claim the land. It is the son of Marium (Jilani Khan) who came up with the above objection case. Further, the Consolidation Officer held that Hamid died in the year 1935 and his four daughters were not in possession over the disputed land. It was also held by the Consolidation Officer that the four daughters of Hamid Khan remained silent till the death of Idrish Khan (died on 23.7.1969). After the death of Idrish Khan, his widow Solema transferred some landed properties to different persons in the years 1971 and 1974. Marium and her sisters never objected to such sales. On the said ground, the Consolidation Officer reject¬ed the names of the objectors (opposite parties) and allowed the objection case of the present petitioners. He specifically held that the sale deed executed by Solema Bibi was valid as the same had not been challenged in the Civil Court. Marium and her sisters never objected to such sales. On the said ground, the Consolidation Officer reject¬ed the names of the objectors (opposite parties) and allowed the objection case of the present petitioners. He specifically held that the sale deed executed by Solema Bibi was valid as the same had not been challenged in the Civil Court. The opposite parties, against the order of the Consolidation Officer, preferred two appeals before the Deputy Director, Consolidation registered as Consolidation Appeal Nos.534 and 556 of 1982 and the same were dismissed on 10.1.1983 by the appellate Court. Two revisions in case Nos.263 and 264 of 1983 were filed before the Consolidation Commissioner who, vide his order dated 9.6.1983 allowed the revisions and directed to delete the names of opposite party Nos.4 to 8 from the land register and record the names of the petitioners exclusively in respect of the disputed properties. In the land register, it was found that Solema Bibi had already transferred her entire share and the share of her husband to different persons. Hence, the Commissioner held that she had no interest in the property left by Bahudi Khan and the sisters of Idrish Khan even after the death of their brother Idrish also did not file any suit to recover their share. Further, it was held that the present opposite parties had no right, title and inter¬est in respect of the disputed properties in village Patasundar¬pur and accordingly the Consolidation Commissioner directed to record the disputed land in favour of these four persons includ¬ing the petitioners. 4. Opposite party Nos.4 to 8 filed a writ application bearing O.J.C. No.1798 of 1984 before this Court and vide order dated 20.6.1991 this Court remanded the matter to the opposite party No.1 Consolidation Commissioner to rehear the case and re-dispose of the same after giving an opportunity of hearing to both the parties. On remand, the Consolidation Commissioner allowed the claim of the petitioners to delete the name of Solema Bibi and disallowed the claim of the petitioners to delete the name of Marium Bibi, Jabu Bibi substituted by her legal heirs, Kabu Bibi substituted by her legal heirs and Nazuman Bibi. On remand, the Consolidation Commissioner allowed the claim of the petitioners to delete the name of Solema Bibi and disallowed the claim of the petitioners to delete the name of Marium Bibi, Jabu Bibi substituted by her legal heirs, Kabu Bibi substituted by her legal heirs and Nazuman Bibi. The Consolidation Commissioner directed to record the disputed land in favour of Golam Khan, Murtaza Khan, Mustafa Khan, Khatija Bibi’s legal heirs, Marium Bibi, Jabu Bibi’s legal heirs, Kabu Bibi’s legal heirs and Nazuman Bibi jointly and the said order passed by the Consolidation Commissioner on remand by this Court, is impugned here. 5. The petitioners mainly challenge the said order on the ground that Solema Bibi became the absolute owner in respect of the property left by her husband in addition to her own share which she had got from her father and the lands purchased from Hawa Bibi. Solema Bibi had transferred her entire share in favour of Khatija Bibi, wife of Mustafa. Admittedly, the present peti¬tioners Golam Khan and Murtaja Khan are brothers of Mustafa and they have joint interest in the properties which were purchased by the petitioners in the name of Khatija by virtue of registered sale deed. Solema had already transferred the entire share of Idrish Khan and her share in favour of Khatija. Therefore, oppo¬site party No.8 (Jahangir Khan) had no substantial interest in the disputed property and the Consolidation Officer has rightly rejected their objection case. But the Commissioner, Consolida¬tion having not considered this aspect, the impugned order passed by him is vitiated in law. So far as the lands in village Lataha¬ran, Bhandagarh and Sadansa are concerned, those have been re¬corded in favour of the seven persons including the petitioners and that was final. 6. So far as the properties situated in village Patasun¬darpur are concerned, it is submitted by the learned counsel appearing for the petitioners that Idrish Khan received the entire amount of compensation awarded in the land acquisition case and the sisters of Idrish Khan had never objected to the same and since the disputed properties were purchased from that compensation amount, the sisters are estopped from claiming their right in respect of the said properties in village Patasundarpur. Further, he submitted that Abdul Rajak, the son of Siban Bibi had sold her entire land in Mouza Patasundarpur, Lataharan, Bhanda¬garh and Sadansa to these petitioners vide register sale deed No.2913 dated 2.12.1974. Solema Bibi, daughter of Bahudi Khan, Khaze Fakir, son of Haliman Bibi had also sold their entire share in Mouza Patasundarpur, Bhandagarh, Lataharan, Sadansa to these petitioners vide register sale deed No.1431 dated 10.4.1974. Therefore, the opposite parties cannot claim any right over the disputed property. According to the learned counsel for the petitioners, the Consolidation Commissioner has not taken into consideration the right of the petitioners in respect of the disputed land and also the fact that the names of the petitioners have been recorded and final R.O.R. has also been issued in their favour so far as the lands situated in villages Lataharan, Bhan¬dagarh and Sadansa are concerned. 7. From the above facts as per the records, it is found that Bahudi Khan died in the year 1929 leaving behind him his three sons and three daughters. As per the Mohammedan Law, sons are entitled to get two shares each and daughters are entitled to get one share each. 8. Law of Succession in Mohammedan Law opens on the death of a Mohammedan. The rights of the heirs come into existence only on the death of the person of whom they are heirs and none else have the birth right. The deceased before his death made transfer his property to some person other than his heirs. Thus, it is only on the death of a person, the right of heir exists and the property of the deceased immediately vests with them at the moment he dies. On the death of a Mohammedan, each of his heirs takes a separate and specific share in the estate and all holding it as tenants in common. The heirs succeed to the estate of a deceased individually and their shares are specified as per the table of sharers under the Mohammedan Law Inheritance. On the death of a Mohammedan, each of his heirs takes a separate and specific share in the estate and all holding it as tenants in common. The heirs succeed to the estate of a deceased individually and their shares are specified as per the table of sharers under the Mohammedan Law Inheritance. In the said law, there is also a provision that certain sharers become residuaries on account of existence of certain other near rela¬tions under the following circumstances, as stated in Rule 228 of the Mohammedan Law : “Rule 228 - When sharers become residuaries-Certain sharers become residuaries on account of the existence of certain other near relations under the following circumstances: (i) The father and true grandfather how high so ever become residuaries when the deceased has no child or child of a son how low so ever; (ii) The daughter becomes a residuary when the deceased is sur¬vived by a son; (iii) The son’s daughter how low so ever becomes residuary when the deceased is survived by a son’s son how low so ever; (iv) The full sister becomes, residuary when the deceased is survived by a full brother; (v) The consanguine sister becomes a residuary when the deceased is survived by a consanguine brother.” 9. The order of succession among the heirs and successors to the estate of a deceased Mohammedan as per Rule 225 of the Mohammedan Law is as follows; I. First, the sharers who are entitled to specified shares in accordance with Rule 229 shall be given the shares to which they are entitled. II. Secondly, after the sharers take their specified shares, the residue shall be given, to the residuaries in accordance with Rule 233. And the Mohammedan Law in Rule 224 has also defined the heirs and successors on whom the estate of the deceased Mohamme¬dan devolves. “(a) Sharers - Those persons who are entitled to the speci¬fied shares of inheritance under Rule 229. (b) Residuaries - Those persons whose shares are not speci¬fied, but they are entitled to take residue after the sharers take their specified shares in accordance with Rule 233. (c) Distant kinderad - Those persons who are neither shares nor residuaries in accordance with Rule 239 to 243.” 10. Hamid died in the year 1935. After the death of Hamid, his son Idrish Khan and his daughters succeeded to his property. (c) Distant kinderad - Those persons who are neither shares nor residuaries in accordance with Rule 239 to 243.” 10. Hamid died in the year 1935. After the death of Hamid, his son Idrish Khan and his daughters succeeded to his property. After the death of Hamid, Idrish ousted his sisters by openly declaring that they have no any share in the property left by their father. The daughters of Hamid did not take any step to enforce their rights in a Court of law within the statutory period. From the record, it appears that neither the daughters of Hamid nor their legal heirs were in possession of the disputed land at any point of time. The Commissioner, Consolidation has not taken into consideration those facts available on records and has come to a conclusion which is perverse and illegal. 11. Under Articles 226 and 227 of the Constitution of India, Court should be slow in interfering with the findings of fact arrived at by the forum authorised to record the same. Though scope of interference with the conclusion on facts is limited, where such conclusions are perverse and are of such nature as no reasonable person could arrive at the same, there is certainly no bar on interference. A conclusion of facts based on no evidence or no relevant evidence is an error of law appar¬ent on the face of the record. Thus, a writ of certiorari can be issued if there be, inter alia, an error of law apparent on the face of the record. It is established that where the finding of fact is based on no evidence, or that the finding is perverse or some vital piece of evidence which would tilt the balance in favour of the parties has been over-looked, disregarded or wrong¬ly discarded, interference is permissible. If the forum below has mis-directed itself in its approach, over-looked the salient features of evidence, mis-read the evidence, thereby reached erroneous conclusion, the Court has jurisdiction to set aside that finding. 12. In the present case, as stated above, the Commissioner, Consolidation has not taken into consideration the possession of the opposite parties over the disputed land since Hamid died in the year 1935 and also the open declaration made by Idrish Khan that daughters of Hamid have no share in the property left by Hamid has not been considered in its proper perspective. The conclusion arrived at by the Commissioner, Consolidation per se is against the weight of materials on record. Accordingly, the impugned order dated 27.11.1995 passed by the Commissioner, Consolidation in Consolidation Revision Case Nos.263 and 264 of 1983 is set aside and the matter is again remanded to the Commis¬sioner, Consolidation for its fresh disposal. 13. The writ application is disposed of. No costs. Application disposed of.