Jute Marketing Co-operative Society v. Guru Charan Das
2011-09-14
B.K.NAYAK
body2011
DigiLaw.ai
JUDGMENT B.K. NAYAK, J. - The petitioner, who is a registered Society under the Orissa Co-operative Societies Act has through its Secretary filed this writ petition challenging the order dated 31.07.1992 passed by the Commissioner, Consolidation, Orissa, Cuttack in Consolidation Revision Case No.943 of 1989 reversing the decision passed by one Consolidation Officer, Raghunathpur in Objection Case No.217/88 and the confirming order passed by the Deputy Director, the confirming order passed by the Deputy Director, Consolidation, Cuttack Range-V, Jagatsinghpur in Appeal Case No.90 of 1989. 2. The facts of the case are that the petitioner-society purchased the case land from his vendors by two registered sale deeds on 05.03.1968 under Annexures-1 and 2. It was recited in the sale deeds that the property in question belonged to Santh Deva Goswami and that by virtue of permission order granted by the Commissioner of Endowments on 09.05.1955 and 13.06.1956 he granted lease in favour of the vendors of the petitioner and while such lessees were continuing in possession, they sold the suit land to the petitioner under the aforesaid registered deeds. The petitioner is continuing in possession over the case land which was recorded in its favour during the current settlement in Khata No.992, plot Nos.161 and 162 and R.O.R. was finally published in the year 1983 as per Annexure-3. Thereafter consolidation operation having been started in the village, Land Register was published in the name of the petitioner in respect of the same. Opposite party Nos.1 to 5 filed Objection Case Ns.217/88 before the Consolidation Officer under Section 9(3) of O.C.H. & P.F.L. Act contending that the disputed land originally belonged to their ancestor and recorded as such in the R.O.R. of the year 1930 and therefore, the said land should be recorded in favour of the opposite parties. The Consolidation officer vide its order dated 21.12.1988 rejected the objection holding that the current R.O.R. stands in the name of the petitioner on the basis of its purchase from 1968 and the petitioner on field enquiry was found in possession of the land in question having house thereon and that at no point of time the objectors raised objection challenging the said R.O.R., or exercised any right over the land and they had not been able to show how the vendor of the petitioner transferred the land to the petitioner.
It was further held that even otherwise, the petitioner being in continuous possession from 1968, the date of its purchase, it has acquired title by way of adverse possession. The objectors-opposite party Nos.1 to 5 challenged the order of the Consolidation Officer, in Appeal Case No.90 of 1989 under Section 12 of O.C.H. & P.F.L. Act. The Deputy Director, Consolidation dismissed the said appeal and confirmed the order of the Consolidation Officer. 3. Being aggrieved by the said appellate order the opposite party Nos.1 to 5 filed Consolidation Revision Case No.943 of 1989 under Section 36 of the O.C.H. & P.F.L. Act before the Commissioner, Consolidation, Orissa, Cuttack. By the impugned order under Annexure-5 the Commissioner has allowed the revision and set aside the order passed by the Deputy Director, Cuttack Range-V, Jagatsinghpur holding that the present petitioner has not raised any claim of acquisition of title by adverse possession before the Consolidation Officer and therefore finding of acquisition of title by the petitioner by adverse possession is bad. It is further held that presumption of correctness of the current R.O.R. arising in favour of the petitioner stands rebutted by R.O.R. of 1930 Settlement which was in favour of the ancestor of the present opposite party Nos.1 to 5. 4. In assailing the impugned order, learned counsel for the petitioner submits that finding with regard to acquisition of title by adverse possession given by the Consolidation Officer and the Deputy Director of Consolidation is merely an alternative finding and even if no such specific claim was made by the present petitioner, on the basis of the entries made in the recent R.O.A. in its favour which has a presumptive value of correctness, it can be said to have title as the presumption arising therefrom cannot be said to have stood rebutted merely because in the 1930 R.O.R. the ancestor of opposite party Nos.1 to 5 were recorded as 'Praja'. It is his submission that there being conflict in entries made in 1930 ROR and 1983 ROR, the later one shall be presumed to be correct and the onus lies on the opposite parties to rebut that presumption by pleading and proving necessary facts that the subsequent entry is fraudulent and/or wrong. 5. Sub Section (3) of Section 13 of the Orissa Survey and Settlement Act, 1958 attaches presumption of correctness of the R.O.R. published under the Act.
5. Sub Section (3) of Section 13 of the Orissa Survey and Settlement Act, 1958 attaches presumption of correctness of the R.O.R. published under the Act. The said provision is extracted hereunder. "13. Presumption as to final publication and correction of record-of-rights – (1) Any record-of-rights prepared and finally published under this Chapter or a certified copy thereof or extract therefrom shall be conclusive evidence of such publication. (2) The Government may by notification declare with regard to land in any local area or village that record-of-rights has been finally published and such notification shall be conclusive evidence of such publication. (3) Every entry in a record-of-rights so published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is provided by evidence to be incorrect: Provided that, if any entry in a record-of-rights is altered in a subsequent record-of-rights, the later entry shall be presumed to be incorrect until it is proved by evidence to be correct, but the previous entry shall be admissible as evidence of the facts existing at the time such entry was made.” 6. It is held in the decision reported in AIR 1963 S.C. 361 that where there is a conflict between the entries in different records of rights, it is the later entry which must prevail. This Court also in the decision reported in Vo.XV (1949) CLT. 114 (Raja Brajasundar Deb -v. Patit Paban Nath) and in AIR 1951 Orissa 240 in case of conflict between the previous and later Settlement entries the later shall be presumed to be correct. 7. When law attaches a presumption of correctness to the entries made in subsequent ROR, obviously, person who challenges the correctness has the onus to prove the same to be incorrect and that the state of affairs existing at the time of publication of previous ROR were continuing as such. The 1930 ROR in respect of the case land shows that Santha Deva Goswami was the proprietor under whom one Jogiram, son of Sandaram, the ancestor of opposite party Nos.1 to 5 was the tenant. The onus being on the opposite party Nos. 1 to 5 to prove that such tenancy as reflected/recorded in the 1930 ROR continued unabated/unaffected and that 1983 ROR published in favour of the petitioner was incorrect or baseless or fraudulent.
The onus being on the opposite party Nos. 1 to 5 to prove that such tenancy as reflected/recorded in the 1930 ROR continued unabated/unaffected and that 1983 ROR published in favour of the petitioner was incorrect or baseless or fraudulent. The burden was heavy because of the specific recital in the sale deed made in favour of the petitioner that the land in question was leased out to the vendor of the petitioner by its original proprietor in the year 1956. It was incumbent on the part of the opposite parties to prove that neither the tenancy of their ancestor was resumed/terminated by the proprietor nor the proprietor granted any lease in favour of the vendor of the petitioner. The opposite parties except producing the 1930 ROR which is in conflict with the 1983 ROR have not proved any such fact and therefore failed to discharge their burden. 8. Therefore, the Consolidation Officer was well within its jurisdiction to direct recording of the case land in favour of the petitioner. Finding of the Consolidation Officer that the petitioner has acquired title by way of adverse possession is merely an additional approach to the case in hand. The observation of the Commissioner of Consolidation that the presumption of correctness arising out of 1983 R.O.R. stands rebutted by virtue of 1930 ROR cannot be accepted inasmuch as in view of the discrepancies between the two, the tater R.O.R. is presumed to be correct. 9. For the reasons aforesaid the impugned order passed by the Commissioner Consolidation cannot be sustained and therefore I quash the same and uphold the order of the Consolidation Officer as has been confirmed by the Deputy Director in appeal. The writ petition is accordingly allowed. No costs. Petition allowed.