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2009 DIGILAW 147 (ORI)

MANGALA CHARAN SAMAL v. SARAT CHARAN SASMAL

2009-02-18

A.S.NAIDU

body2009
JUDGMENT : A.S. Naidu, J. - The common orders passed by the Consolidation Officer, GopKakatpur in RRC No. 423/95, 470/96 vide Annexure-4, which were confirmed by the Deputy Director, Consolidation, Puri in Appeal Case No. 52 of 1998 and 53 of 1998 (Annexure-5) and the order passed by the Commissioner, Consolidation in Revision Petition No. 101 of 1999 confirming the orders passed by the Consolidation Officer and Deputy Director vide Annexure-6 is assailed in this writ application. 2. The lands in dispute appertain to Sabik Plot No. 139 measuring an area Ac.2.01 dec, plot No. 146 measuring Ac.0.49 dec, plot No. 147 measuring Ac.0.08 dec. in total Ac.2.58 dec. under Sabik Khata No. 1 of mouza Anantapur. The said lands stood recorded jointly in the name of one Jogi Samal, son of Basu having 1/3rd share, Dhruba Samal, son of Anadi Samal having 1/6th share, Chemei Samal son of Bhubaneswar Sasmal having 1/3rd share and Dinabandhu Samal son of Raghab Sasmal having 1/6th share. In the year 1934, to be more precise on 20.7.1934 Dhruba son of Anadi, who had 1/6th interest over the lands sold his share to Dinabandhu Sasmal, son of Raghab Sasmal by a registered sale deed. By virtue of the said sale, Dinabandhu became 1/3rd share holder over the lands. By sale deed dated 9.7.1964 Gadei @ Gadadhara, son of Dinabandhu purchased the share of Sadananda, Satyananda and Hari, sons of Dinabandhu as well as Kailash son of Kasi. By virtue of the said purchase through registered sale deed, Gadei became the exclusive owner in respect of 1/3rd share in the property. Similarly on 17.3.1970 Dhadi and Ganesh sons of Chemei sold their 1/3rd share to Mangala Sasmal (present Petitioner) and Gopal Sasmal respectively by a registered sale deed. 3. It appears that Bhima Sasmal, son of Bidyadhar sold Ac.0.18 dec. to Kangali Sasmal and Gopal Sasmal sons of Gadadhara by registered sale deed dated 20.9.1968. The said Kangali and Gopal, sons of Gadei sold Ac.0.14 dec. to Mangala Sasmal (Petitioner) through registered sale deed dated 8.6.1972. Thus, it is claimed that the Petitioner became 1/3rd share holder. According to Learned Counsel for the Petitioner, by virtue of the aforesaid sale deeds, Mangala Charan Sasmal, the Petitioner became the absolute owner in respect of Ac.1.90 dec. of land having purchased (a) 1/3rd share of Chemei - Ac.0.86 dec. Thus, it is claimed that the Petitioner became 1/3rd share holder. According to Learned Counsel for the Petitioner, by virtue of the aforesaid sale deeds, Mangala Charan Sasmal, the Petitioner became the absolute owner in respect of Ac.1.90 dec. of land having purchased (a) 1/3rd share of Chemei - Ac.0.86 dec. (b) 1/3rd share of Dhruba & Dinabandhu Ac.0.86 dec. (c) Ac.0.18 dec. from Bhima through kangali and Gopal 3. The lands in question were part and parcel of "Lakharaj Bahal" and it vested with the State Government in consonance with a blanket notification issued under the Orissa Estate Abolition Act, hereinafter to be referred to as "the Act", in short. Thereafter, it is averred that by virtue of a petition filed under Sections 6 and 7 of the Act, the lands were settled in favour of Bhima, Opposite Party No. 6 and Lokanath, the father of Opposite Party No. 7 in O.E.A. Case No. 1825/63-64. During the settlement operation, the Petitioner filed objections and oil the basis of his sale deed got the lands recorded in his name exclusively. 4. After publication of the R.O.R., Sarat, Opposite Party No. l and others filed Revision Case No. 470 of 1996 before the Commissioner claiming that they have interest in the property and the Petitioner Mangala Charan Sasmal had purchased excess lands from the co-sharer and recording of the entire lands in his favour was not justified. According to the Opposite Party No. 1, Kangali and Gopal, sons of Gadei though had only Ac.0.11 dec, they have sold Ac.0.18 dec. thus, Ac.0.08 dec. of land had been recorded in excess in the name of the Petitioner, Mangala. Another revision was also filed by Arjun Sasmal, which was registered as Revision Case No. 423 of 1995 before the Commissioner, taking the stand that though he is a successor of Jogi through Biswanath, his name has not been recorded in the R.O.R. in respect of Hal Khata No. 58. The Commissioner heard both the revisions filed u/s 37 of the Act and came to the conclusion that the Consolidation Officer has not properly dealt with the matter and there are certain errors apparent on the face of the records leading to discrepancy with regard to the title of the parties. The Commissioner heard both the revisions filed u/s 37 of the Act and came to the conclusion that the Consolidation Officer has not properly dealt with the matter and there are certain errors apparent on the face of the records leading to discrepancy with regard to the title of the parties. Consequently, the order of the Consolidation Officer was set aside and the matter was remitted back to the Consolidation Officer for de novo adjudication. 5. The Consolidation Officer thereafter heard all the parties, went through the document and registered sale deeds and directed to correct the recording made in respect of Khata No. 73 and further directed to record all the lands in joint khata. The Petitioner being aggrieved by the said order filed appeals before the Deputy Director u/s 12 of the Act on the ground that though the dispute was confined to only Ac.0.08 dec, the Consolidation Officer acted illegally and with material irregularity in directing to record the entire lands jointly. The said appeals were registered as Appeal Nos. 52 of 1998 and 53 of 1998. The Director after discussing the entire evidence came to the conclusion that the Consolidation Officer had not committed any illegality or irregularity and dismissed the appeals. Being aggrieved by the said order, the Petitioner preferred the revision before the Commissioner, which was registered as Revision Case No. 101 of 1999. The Commissioner after going through the materials and relevant documents, confirmed the orders passed by the Consolidation Officer as well as the Deputy Director and directed that the lands should be recorded jointly in favour of all the parties. The said order as stated earlier is assailed in this Writ Petition. 6. Ms.Jena, Learned Counsel appearing for the Petitioner took strain to lead this Court through all the judgments and annexed documents. According to Ms. Jena, the dispute being confined only to Ac.0.09 dec. of land, which was said to have been sold in excess, the authorities below should have confined their orders to the said Ac.0.09 dec. The direction issued to record the entire lands in joint khata is illegal and contrary to law. 7. The aforesaid submissions of Ms. Jena was strongly repudiated by Mr. Mohanty, Learned Counsel appearing for the Opposite Parties. The direction issued to record the entire lands in joint khata is illegal and contrary to law. 7. The aforesaid submissions of Ms. Jena was strongly repudiated by Mr. Mohanty, Learned Counsel appearing for the Opposite Parties. According to him, number of disputed questions of facts are involved, more so with regard to the vesting of the intermediary estate and fresh settlement made u/s 6 and 7 of the Act. According to Mr. Mohanty, the registered sale deed dated 20.9.1968 does not create any right upon the Petitioner as the land sold did not belong to the vendor. Several other infirmities in the title were also pointed out. 8. After considering the submissions diligently and going through the pleadings and documents annexed meticulously, this Court finds in fact that several disputed questions of facts are involved. That apart, the mouza in which the lands are situated were brought within the fold of consolidation operation in pursuance of a notification under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 way back in the year 1993-94. After hearing the objections, records of rights were prepared. Thereafter, the village was de-notified, thus, bringing an end to the consolidation operation. In the case in hand, there are discrepancies with regard to different alienations made in favour of the parties. Be that as it may, the orders reveal that all lands have been recorded jointly in favour of the Petitioner as well as Opposite Parties. Thus, no prejudice whatsoever has been created to the Petitioner. If the Petitioner wants to have a separate recording, it was open for him to pray for partition before the consolidation authorities during consolidation operation, that is more so as because he was an outsider and had purchased joint family properties, which had never been partitioned among the co-sharers. Thus, in consonance with law the only option, which was left for him was to get the properties partitioned and to pray for allotment of lands purchased by him to the share of his vendors and thereafter to his share. It is not possible for this Court to effect partition inter se between the parties and to allot separate shares in favour of the Petitioner and the contesting Opposite Parties that too in exercise of jurisdiction under Articles 226 and 227 of the Constitution. It is not possible for this Court to effect partition inter se between the parties and to allot separate shares in favour of the Petitioner and the contesting Opposite Parties that too in exercise of jurisdiction under Articles 226 and 227 of the Constitution. That apart, this Court finds that no prejudice whatsoever has been caused to the Petitioner. Accordingly, this writ application is disposed of giving liberty to the Petitioner to work out his remedy before the Civil Court as the consolidation operation has already been completed and there is no bar for any of the parties to approach the Civil Court for effecting partition.