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2010 DIGILAW 423 (ORI)

Gurucharan Swain v. Commissioner, Consolidation, Orissa, Cuttack

2010-06-24

A.S.NAIDU

body2010
JUDGMENT A.S. NAIDU, J. : The petitioners in this Writ Petition seeks to assail the order dated 24.7.1996 (Annexure-1) passed by the learned Commissioner, Consolidation, Orissa, Cuttack in Consolidation Revision Case No.1511 of 1994 confirming the order dated 27.8.1994 (Annexure-7) passed by the learned Deputy Direc¬tor, Consolidation, Range-1 Cuttack in Appeal Case No.52 of 1994. However, they have prayed to quash the orders under Annexure-1 and 8 but then it appears that no document has been marked as Annexure-8 and in fact the petitioners want to quash Annexure-7 i.e. the order passed in Appeal Case No.52 of 1994 by the Deputy Director. 2. The petitioners and opposite party No.3 are defendants of a common ancestor i.e. Krushna Swain. Krushna had three sons being Nalu, Balakrushna and Balu. Petitioner Nos.1 to 6 are descendants of the branch of Nalu and petitioner Nos.7 to 10 are descendants of the branch of Balakrushna. Opposite party No.3 is the sole descendant of Balu’s branch. To appreciate the inter se relation¬ship it will be prudent to refer to the genealogy of the families which is given below :- Krushna Nalu Balakrishna Balu Bhikari Guru Arta Dibakar = sara Dibakar Bimbadhar Gangadhar (adopted by Bhikari) Dhruba Gurucharan Pira Surendra Niranjan Khirod Sridhar Ajit Amiya Saroj Manoj 3. The total lands in dispute having an area of Ac.8.84 decimals appertaining to 1929 Settlement Khata Nos.27, 408, 140, 448, 282 and 267 out of Khata No.27 stood recorded in the name of Bhikari Swain who was the ‘Karta’ of the family. The said proper¬ties are more fully described in Schedule ‘A’ of the Writ Peti¬tion. The said land correspond to Major Settlement Khata Nos.18, 408, 8, 199, 198, 182 and 103 which further correspond to Consol¬idation L.R. Khata Nos.1, 2, 3, 5 and 57. From the facts, it further appears that Ac.4.49 decimals of land appertaining to Hal Settlement Khata Nos.102 and 103 was purchased at different times in between 1939 to 1946 in the name of Gangadhar Swain, father of opposite party No.3 alone. Those properties are more fully de¬scribed in Schedule ‘B’ of the Writ Petition. From the facts, it further appears that Ac.4.49 decimals of land appertaining to Hal Settlement Khata Nos.102 and 103 was purchased at different times in between 1939 to 1946 in the name of Gangadhar Swain, father of opposite party No.3 alone. Those properties are more fully de¬scribed in Schedule ‘B’ of the Writ Petition. Disputes among the family arose some time in the year 1950 with regard to shares in aforesaid properties more particularly Ac.8.84 decimals of land described under Schedule ‘A’ which stood recorded in the name of Dibakar Swain, the ancestor of petitioner Nos.1 to 6, in the 1929 Settlement, as well as Ac.4.49 decimals of land which was pur¬chased in the name of Gangadhar Swain, father of opposite party No.3 alone. The dispute was referred to Village Panchayat in the year 1953 and it was decided that the entire properties of the family described under Schedules ‘A’ and ‘B’ i.e. properties recorded in the name of Dibakar and properties purchased in the name of Gangadhar should be treated as joint family properties. Accordingly the shares were carved out. Gangadhar being the eldest member was allowed to 6 annas share, Bimbadhar, the father of petitioner No.4 was given 5 annas share and Dibakar the grand¬father of petitioner Nos.1 to 6 was given 5 annas share. The decision of the Panchayat was recorded on 14.6.1953 and as per the said decision, it is alleged that the parties possessed the lands as per shares allotted by the Panchayat. By efflux of time the members of the joint family alienated the properties under Registered Sale Deeds in respect of the properties allotted to their shares. In the year 1966 the Major Settlement operation commenced. Gangadhar was the ‘Karta’ of the family at that rele¬vant time and he was looking after the settlement of the lands. He had filed a petition before the Settlement authorities praying to record the lands purchased by him as joint family properties. Basing upon such application the Asst. Settlement Officer by orders dated 20.1.1962 and 31.1.1962 recorded the lands purchased by Gangadhar as joint family properties. Gangadhar also produced Panchayatnama dated 14.6.1953 and according to the terms of the said Panchayatnama 6 annas share were allotted in favour of Gangadhar and 5 annas each in favour of other two branches. Relying upon said Panchayat name Settlement Case No.5318 was dis¬posed of by the Asst. Gangadhar also produced Panchayatnama dated 14.6.1953 and according to the terms of the said Panchayatnama 6 annas share were allotted in favour of Gangadhar and 5 annas each in favour of other two branches. Relying upon said Panchayat name Settlement Case No.5318 was dis¬posed of by the Asst. Settlement Officer and lands were directed to be recorded accordingly. 4. In the year 1990 the village in which the lands are situated was brought within the purview of Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. Thereafter, opposite party No.3 filed Objection Case Nos. 1047/91, 1048/91, 1049/91 and 1069/91 inter alia praying for partition of Schedule ‘A’ properties. He also prayed to record the lands more fully described under Schedule ‘B’ exclusively in his name. The Consolidation Officer, Salipur issued notices and heard all the cases analogously. After considering the submis¬sions made, documents produced and after conducting spot enquiry and consulting with Consolidation members the objection filed by opposite party No.3 was rejected and the records prepared by the Settlement authorities were confirmed. The order dated 30.12.1993 passed by the Consolidation Officer accepting the genealogy given by the parties and dismissing all the Objection Cases is annexed as Annexure-6 to the Writ Petition. 5. Being aggrieved by the said order, opposite party No.3 filed an appeal before the Deputy Director, Consolidation, Range-I, Cuttack which was registered as Appeal Case No.52 of 1994. The Deputy Director held that Schedule ‘B’ properties having been purchased exclusively in the name of Gangadhar Swain the same cannot be treated as joint family properties, more so because there is no materials to reveal that the said properties were purchased by utilizing joint family nucleus. On the basis of such conclusion the Deputy Director, directed that Schedule ‘B’ properties should be recorded in favour of opposite party No.3 alone. On the other hand it was held that the properties more fully described under Schedule ‘A’ and recorded in the name of Dibakar has to be treated as joint family properties and parti¬tioned among the parties. The order acted 27.8.1994 (Annexure-7) passed by the Deputy Director, Consolidation in Appeal Case No.52 of 1994 was assailed by the present petitioners before the learned Commissioner, Consolidation, Orissa, Cuttack in Consoli¬dation Revision Case No.1511 of 1994. By order dated 24.7.1996 (Annexure-1) the Commissioner dismissed the revision, which is assailed in this Writ Petition. 6. According to Mr. The order acted 27.8.1994 (Annexure-7) passed by the Deputy Director, Consolidation in Appeal Case No.52 of 1994 was assailed by the present petitioners before the learned Commissioner, Consolidation, Orissa, Cuttack in Consoli¬dation Revision Case No.1511 of 1994. By order dated 24.7.1996 (Annexure-1) the Commissioner dismissed the revision, which is assailed in this Writ Petition. 6. According to Mr. Patnaik, learned counsel for the petitioners the Commissioner committed grave error of law by not considering the fact that Gangadhar being the ‘Karta’ of the family was in possession of sufficient necleus and the lands purchased out of the said necleus had to be treated as joint family properties irrespective of the fact that the same were purchased in the name of the ‘Karta’. He further submitted that the Commissioner has not properly appreciated the fact that Gangadhar in course of Settlement Operation admitted that though Schedule ‘B’ lands were purchased in his name, the said proper¬ties were joint family properties. In short according to Mr. Pattnaik the Commissioner had adopted double standards inasmuch as while treating the lands more fully described under Schedule ‘A’ recorded exclusively in the name of Dibakar to be joint family properties acted illegally in holding that the properties more fully described under Schedule ‘B’ purchased by Gangadhar Swain, who was also the ‘Karta’ of the family after Dibakar, do not belong to the joint family. On the basis of such submission a prayer is made to quash order dated 24.7.1996 (Annexure-1) passed by the Commissioner in Consolidation Revision Case No.1511 of 1994 as well as the order of the Deputy Director (Annexure-7). 7. After receiving notice a counter affidavit has been filed on behalf of opposite party Nos.1 and 2 more or less sup¬porting the stand taken in the orders. Opposite party No.3 who is the contesting opposite party has also filed a detailed counter affidavit. At the outset, it is stated that the order passed by the Consolidation Officer in four Objection cases were assailed in one appeal before the Deputy Director and the appeal was thus not maintainable. It is further stated that a single revision also is not maintainable on the said ground. According to opposite party No.3, his father along with Upendra Biswal, Gajendra Das and Narendra Das had purchased about 10 acres of land from different vendors, out of which his share was only Ac.4.03 decimals. It is further stated that a single revision also is not maintainable on the said ground. According to opposite party No.3, his father along with Upendra Biswal, Gajendra Das and Narendra Das had purchased about 10 acres of land from different vendors, out of which his share was only Ac.4.03 decimals. The said properties having been purchased out of his own income cannot be amalgamated with the joint family properties. In course of 1997 Settlement operation the aforesaid lands stood recorded in the name of respective vendors according to their respective possession. Since the date of purchase Gangadhar father of opposite party No.3 and after his death in the year 1979, opposite party No.3 is in possession of the lands in question without any interference from any quarters. Since the lands have been purchased by Gangadhar out of his own income along with three other outsiders the Deputy Director as well as the Commissioner has rightly came to the conclusion that the said properties do not belong to the joint family. The theory of blending of the aforesaid properties with the joint family properties is also stoutly denied. In short according to opposite party No.3 the lands appertaining to Schedule ‘B’ having not been purchased out of the joint family nucleus, the same have been rightly allotted to the share of opposite party No.3. 8. To appreciate the inter se dispute this Court meticulously perused the pleadings and different orders and documents annexed to the Writ Petition. The major controversy between the parties is as to whether the lands more fully de¬scribed under Schedule ‘B’ of the Writ Petition are self acquired property of Gangadhar and opposite party No.3 is entitled to exclusive allotment of the said properties or the same should be treated as joint family property of the family ? So far as shares allotted out of the properties more fully described under Schedule ‘A’ of the Writ Petition is concerned, this Court finds no major discrepancy. The records clearly reveal that the said properties were joint family properties of the family though recorded in the name of ‘Karta’ of the family and have been rightly treated as such and have been partitioned among the branches. To decide as to whether Schedule ‘B’ properties are self acquired properties of Gangadhar or not it would be prudent to refer as to how the said properties were purchased. To decide as to whether Schedule ‘B’ properties are self acquired properties of Gangadhar or not it would be prudent to refer as to how the said properties were purchased. It is clear from the pleadings and other documents that the father of opposite party No.3, Gangadhar Swain along with Upendra Biswal, Gajendra Das and Narendra Das who do not belong to the family had purchased 10 acres of land from different vendors. By mutual partition between Gangadhar, Upendra, Gajendra and Narendra, Ac.4.03 decimals of land were allotted to the share of Gangadhar. Materials further reveal that from the date of purchase Gangadhar and after his death in the year 1979, opposite party No.3 were possessing the said purchased lands covered under Schedule ‘B’ without interference from any quarters and to the knowledge of all. It also appears that apart from the aforesaid 10 acres of land which was purchased jointly by Gangadhar and other outsiders some other lands were also purchased by him out of his own in¬come. 9. According to the petitioners Gangadhar during Settle¬ment operation had given consent to treat Schedule ‘B’ lands as joint family properties. This submission, however, could not be established by the petitioners by adducing any evidence. Fact remains, the lands have been recorded by Settlement authorities jointly but then law is well settled that the recordings made by the Settlement authorities neither creates not extinguishes any title. If it can be otherwise found that Schedule ‘B’ lands were exclusive properties of Gangadhar, only because the same were recorded jointly by the Settlement authorities, the right, title and interest cannot be extinguished. A bare reading of the order passed by the Deputy Director as well as other materials also reveal that Gangadhar had personal business of wood and cloth and earned substantially from the said business. Admittedly there was a partition by metes and bounds between the family members in the year 1920. The lands more fully described under Schedule ‘B’ were purchased thereafter. Thus it cannot be said that the said properties were purchased out of the joint family necleus. It appears that there is some dispute with regard to the fact as to whether the partition of the joint family properties took effect in the year 1920 or 1953. It appears from the records that the co-sharers have executed different sale deeds after the year 1920. It appears that there is some dispute with regard to the fact as to whether the partition of the joint family properties took effect in the year 1920 or 1953. It appears from the records that the co-sharers have executed different sale deeds after the year 1920. That apart, there are some materials to reveal that the petitioners admitted that there was an inter se partition in the year 1920. Both the authorities below have discussed the evidence in extenso and have arrived at the conclusion that the lands more fully described under Schedule ‘B’ were purchased by Gangadhar out of his own income along with some outsiders. The petitioners have also totally failed to prove that any income out of the joint family properties was utilized for purchase of the afore¬said lands. 10. The preliminary point raised by the petitioners to the effect that one appeal and revision is not maintainable against an order passed in four objection cases is repudiated by learned counsel for opposite party No.3. Fact remains, for the sake of convenience all the objections filed before the Consolidation Officer are assigned different numbers and registered them as Objection Cases. In the case at hand though four Objection cases were filed, the parties and facts as well as point of law in¬volved was one and the same. All the Objections cases have been disposed of by a common judgment. Against the said judgment only one appeal was preferred. Even before the Deputy Director, no objection was raised with regard to maintainability of the single appeal. Law is well settled that the question of maintainability should be raised at the very threshold. Even otherwise the par¬ties are no way prejudiced by the orders passed by the Deputy Director or Commissioner and as such the question of maintain¬ability of one Writ Petition at this belated stage cannot be accepted. 11. After going through evidence and the orders, this Court finds that the Consolidation authorities have not committed any error apparent on the face of the record. Law is well settled that while exercising power under Articles 226 and 227 of the Constitution of India, this Court do not act as an appellate Court. The power conferred is in the nature of superintendence. The same has to be exercised sparingly only in special circum¬stances in appropriate cases. Law is well settled that while exercising power under Articles 226 and 227 of the Constitution of India, this Court do not act as an appellate Court. The power conferred is in the nature of superintendence. The same has to be exercised sparingly only in special circum¬stances in appropriate cases. This Court can exercise its power under Articles 226 and 227 of the Constitution of India and quash an order passed by a Court/Tribunal if there is an apparent error or the findings of fact have been arrived at by non-consideration of the relevant and material documents. While exercising power under Articles 226 and 227 of the Constitution of India the findings of fact recorded by the authorities can be interfered with only if it is found that the same are either perverse or patently erroneous and dehors the factual and legal position on record. In other words the power under Articles 226 and 227 being a power of judicial superintendence should not be used to up-set conclusions of facts, however erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. Analyzing the facts in the case at hand on the basis of legal principles stated above this Court finds that the orders passed by the Deputy Director, Consolidation under Annexure-7 and by the Commissioner, Consolidation under Annexure-1 do not suffer from the vice of non consideration of materials. The decisions are just, proper and needs no interference by this Court in exercise of power of superintendence. The Writ Petition is accordingly dismissed. Petition dismissed.