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2012 DIGILAW 238 (ORI)

Kunjabihari Sahu v. State of Orissa

2012-05-09

SANJU PANDA

body2012
JUDGMENT S. PANDA, J. - The petitioner has filed this writ petition challenging the order dated 10.7.2000 passed by the Addl. District Magistrate, Bolangir in O.L.R. Revision No. 14 of 1933 confirming the orders dated 12.5.1993 and 18.2.1992 passed by the Officer on Special Duty (L.R.), Bolangir and Tahasildar & Revenue Officer, Tusra in OLR Appeal Nos. 4 and 5 of 1992 and OLR Case No.5 of 1986 respectively. 2. To appreciate the dispute between the parties, it is necessary to narrate the facts of the case which are as follows: Originally the disputed land was recorded in the name of Khageswar Sahu, the matrimonial grand-father of the present petitioner. Opposite party No.2 is the son of said Khageswar Sahu. There was a partition between Khageswar and his son in the year 1956. The Revenue Officer after due inquiry in a proceeding recorded the land separately in the name of the father and the son in the year 1974. Thereafter, Khageswar and his son possessed the property as per their respective shares and the ceiling proceeding was dropped, as there was no ceiling surplus land. While Khageswar was in possession of land, having full right, title and interest over his share, he executed a Willnama in favour of the petitioner in a sound health and mind. Khageswar died in the year 1976. After his death, petitioner succeeded to the said land as per the terms of the Willnama and remained in physical possession of the land since then. Opposite party No.2 had never claimed that property after the death of Khageswar. 3. While the matter stood thus, a ceiling proceeding was initiated by opposite party No.4 in OLR Case No.5 of 1986 against opposite party No. 2. In the said case, both the opposite party No.2 and the petitioner filed their objections. The petitioner reiterated the facts regarding the Willnama executed by Khageswar and after his death, the petitioner is in possession of the land and at no point of time, opposite party No.2 claimed the said land as his own land. Since the land possessed by the petitioner was under the ceiling unit and there was no ceiling surplus land in Bolangir district, it is not necessary to be probated. Opposite party No.2 supported the plea of the petitioner also. Since the land possessed by the petitioner was under the ceiling unit and there was no ceiling surplus land in Bolangir district, it is not necessary to be probated. Opposite party No.2 supported the plea of the petitioner also. The Revenue Officer on 25.10.1988 without considering the plea of the petitioner found that there is ceiling surplus land and opposite party No.2 succeeded to the property after death of Khageswar and he possessed the land measuring an area of Ac. 17.54 decimals. Being aggrieved by the aforesaid order, both the opposite party No.2 and the petitioner have preferred appeals before the Sub-Collector, Bolangir. In the said appeals, opposite party No.3 was impleaded himself as a party and he is the adopted son of Bishnupriya Sahu, one of the daughters of Khageswar. The appellate Court remanded the matter. On remand, the Revenue Officer heard the matter afresh and after recording the evidence adduced by the parties, came to' the finding that the Willnama was executed in a plain paper and the partition of the appellant should be made by way of registration of instrument by decree of, a Court and by an order of a Revenue Officer on mutual agreement. The record of rights of the village was physically published during the year 1976-77. Objector Kunjabihari Sahu had not taken any step to get the case land recorded in his favour during hal settlement. The scribe of the Willnamna has not corroborated the statement of the petitioner regarding place where the Willnama was written. Hence, the Willnama is not in force and cannot be relied upon. So far as the claim of opposite party No.3 is concerned, he was adopted by one of the daughters of Khageswar and the said opposite party No.3 in support of his plea examined opposite party No.2. The said witness was also cross-examined at length. Nothing tangible has come out from his deposition. On a plain scrutiny, the signature of Khageswar appears to be the same in the Willnama and gift deed. However, as he has not taken any plea to record the name during hal settlement proceeding, they are claimed the property in the ceiling proceeding. Therefore, their objection was rejected and approved the draft settlement prepared earlier showing surplus land of Ac. 14.83 equivalent to 3.64 standard acres which was confirmed and vested to the Government. 4. However, as he has not taken any plea to record the name during hal settlement proceeding, they are claimed the property in the ceiling proceeding. Therefore, their objection was rejected and approved the draft settlement prepared earlier showing surplus land of Ac. 14.83 equivalent to 3.64 standard acres which was confirmed and vested to the Government. 4. Being aggrieved by the said order, three OLR appeals have been filed by the opposite party Nos. 2, 3 and present petitioner. Those are OLR Appeal Nos. 3, 4 and 5 of 1992 respectively. The appellate Court heard the appeals analogously and dismissed the same confirming the finding of the Revenue Officer. Being aggrieved by the said order, the petitioner and opposite party No.2 filed OLR Revision No. 14 of 1993 and OLR Revision No. 15 of 1993 respectively which were heard and disposed of. The opposite Party No.3 has not preferred any separate revision and he was opposite party in both the aforesaid revisions. The revisional Court reiterating the facts came to the following finding: "Earlier Ceiling Case No. 1871 of 1974 instituted in the name of late Khageswar Sahu was dropped on 3.11.1976 with the finding that the father and son were separated prior to 26.9.1970. The share allotted to father naturally should be inherited by the son. Accordingly, the Revenue Office initiated the present ceiling case in the year 1986. The petitioner, Kunjabihari Sahu got the land mutated measuring an Area Ac. 13.69 decimals in his name in Mutation Case No. 349 of 1978-1979 by order dated 24.10.1976. Executing that land the petitioner is now claiming Ac. 13.97 decimals of land on the strength of Willnama. There is no reference in the previous ceiling cases regarding execution of any willnama or gift deed in favour of any person. The Willnama said to have been executed on 15.1.1973, but the case has been disposed of on 3.11.1976. Even after the death of said Khageswar Sahu, the petitioner also did not initiate any claim to the land on the basis of Willnama till institution of the present ceiling case. Therefore, the Willnama placed is to be treated as not existed and the entire exercise is an outcome of after thought to avoid the present O.L.R. proceeding. The Revenue Authority has rightly suspected the Willnama and registered the claim of the petitioner and the same has been confirmed by the appellate Court also. Therefore, the Willnama placed is to be treated as not existed and the entire exercise is an outcome of after thought to avoid the present O.L.R. proceeding. The Revenue Authority has rightly suspected the Willnama and registered the claim of the petitioner and the same has been confirmed by the appellate Court also. Accordingly, the revision is rejected." 5. learned counsel appearing for the petitioner submitted that Khageswar and his son are separated and possessing the land as per their respective share, which has been determined in ceiling case No.1871 of 1974 and the said proceeding was dropped on 3.11.1976. After the death of Khageswar, the present petitioner succeeded to the property of Khageswar by virtue of Willnama. A Willnama need not be registered and the same shall not be required to be probated also in the district of Bolangir Opposite party No.2 has also not claimed the property, being successor of Khageswar. The petitioner has duly proved the execution of the Willnama and its attestation. Therefore, the finding of the Court below is not sustainable in law and is liable to be interfered with. 6. learned counsel for the opposite party No.3 fairly submitted that opp. party No.3 had not filed any revision challenging the rejection of his appeal. However, he has reiterated the claim of the opp. party No.3. Since opp. party No.3 has not preferred any writ application against the said order, the order passed in OLR Appeal No.3 of 1992 need not be considered in this writ application filed by the present petitioner. 7. From the above fact, it appears that opposite party No.2 has not claimed the disputed property at any point of time as successor of Khageswar. The property was partitioned between Khageswar and his son and they are possessing the property separately as per the finding of the Revenue Officer in Ceiling Case No. 1871 of 1974, which was dropped on 3.11.1976. The will was executed by Khageswar in the year 1976. A Will is not to be probated in the district of Bolangir which was a ex-princely State. After the death of Khageswar in the year 1976, the petitioner possessed the property and pleaded that he had no scope to disclose regarding Willnama and claiming the property during the life time of Khageswar. A Will is not to be probated in the district of Bolangir which was a ex-princely State. After the death of Khageswar in the year 1976, the petitioner possessed the property and pleaded that he had no scope to disclose regarding Willnama and claiming the property during the life time of Khageswar. The Court below erred in law in holding that during Hal Settlement Operation in the year 1978-79, he did not file any document to record his name. It is well settled that the record-of-right does not create title nor extinguishes title. Therefore, the OLR authorities have to consider subsequent events on the happening of which a person may be subjected to a fresh ceiling proceeding under Section 52 of the OLR Act. As the share of Khageswar was separated in accordance with law, the Revenue Officer erred in law in holding that opposite party No.2 has only succeeded to the property of Khageswar and he has possessed the ceiling surplus land discarding the claim of petitioner erroneously. The opposite party No.2 has neither claimed the disputed land nor resisted the possession of the petitioner. The petitioner has been all-along possessing the land after the death of Khageswar. The Courts below however held that the petitioner has not initiated any claim to the land on the basis of Willnama till institution of the present ceiling case. The said finding is on error of record. There was no occasion for the petitioner to initiate any proceeding to claim the disputed property. After death of Khageswar, petitioner alone is possessing the land by virtue of Willnama and nobody resists his possession. Further, in the present case, the petitioner has examined the scribe as well as attesting witness to prove the genuineness of Willnama. Though the opposite party No.2 who is the person to oppose the Willnama. Though the opposite party No.2 who is the person to oppose the Willnama, he has supported the execution of the Willnama and has not claimed the disputed property. The petitioner has proved the Willnama as genuine. 8. In a decision reported in the case of Amrutlal Majhi,and Others V. Japi Sahuanhi and others 1972 (2) CWR 1451, this Court held, that the Indian Succession Act was extended to Bolangir by the Administration of Orissa States Order, 1948. The petitioner has proved the Willnama as genuine. 8. In a decision reported in the case of Amrutlal Majhi,and Others V. Japi Sahuanhi and others 1972 (2) CWR 1451, this Court held, that the Indian Succession Act was extended to Bolangir by the Administration of Orissa States Order, 1948. Therefore, neither the place where the Will was made is within the territories specified in Clause (a) of Section 57 nor the immovable' properties which they relate are within those specified territories, It follows that the prohibition contained, in Section 213 (1) does not apply to the Will in question, and as' such, absence of probate will not debar the legatee from claiming his rights, on the basis of the Will. In the present case, the disputed property is admittedly situated within the district of Bolangir. Therefore, the findings of the OLR Authority that the petitioner has not claimed the property by virtue of the Will earlier than the present 'ceiling proceeding, is an error apparent on the face of the record as explained in the above paragraph. Further, the decision in the case of Amrutlal Majhi (supra) was followed in another decision of the Court reported in Mst. Radha Hota v. Dutika Satpathy and another, 48 (1979) CLT 211, wherein it has been held that in the Ex-State of Bolangir the will executed need not be probated. 9. In view of the discussions made in the above paragraphs, this Court finds that there are errors apparent on the face of the record. Accordingly this Court quashes the impugned orders passed by the Courts below under Annexures-1, 2 and 3 in exercise of its jurisdiction under Article 227 of the Constitution of India. The writ application is allowed. No costs. Application allowed.