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2015 DIGILAW 42 (ORI)

Srikanta Behera v. Narayan Chandra Barik

2015-01-21

B.K.NAYAK

body2015
JUDGMENT : B. K. NAYAK, J. Orders passed in OLR Appeal No.1 of 2001 (Annexure-19) by the Sub-Collector, Bhadrak and in OLR Revision No.4 of 2001 (Annexure-20) by the Additional District Magistrate, Bhadrak thereby reversing the order passed by the Tahasildar-cum-Revenue Officer, Bhadrak in OLR Case No.1 of 1988 filed by opposite party no.1 under Section 15 (1) (b) of the O.L.R. Act, have been assailed in this writ application. 2. Land measuring Ac.1.98 decimals out of Ac.2.14 dec. under khata No.1390/295, plot no.477 (part), corresponding to Plot No.477/6216 under khata no.21/322 forming part of sabik plot No.68 under khata no.952 in village-Kaupur, Tahasil-Bhadrak is the disputed property. 3. The facts of the case are as follows : (A) Sabik plot no.168 measuring Ac.3.50 dec. belonged to one Ganesh Prasad Ray, who leased out the same to one Chandramani Dixit under registered lease deed on 18.11.1947. Out of the said property, Chandramani Dixit sold Ac.1.50 to one Madan Mohan Kar by registered sale deed dated 20.09.1965 and thereafter said Chandramani Dixit also sold Ac.1.00 out of the said plot in favour of one Madhabananda Pal. Undisputedly, the present opposite party no.1 was an attesting witness to the sale deed executed in favour of Madan Mohan Kar. Out of his purchased area Madan Mohan Kar sold Ac.0.75 dec. to one Jagdish Prasad Khemeka by registered sale deed dated 07.07.1970 and the balance Ac.0.75 dec. was also sold by Madan Mohan Kar to said Jagdish Prasad Khemeka by sale deed dated 09.07.1971. Jagdish Prasad Khemeka also purchased Ac.0.64 from Ac.1.00 dec. from Madhabananda Pal by registered sale deed dated 07.06.1972. Thus, Jagdish Prasad Khemeka became the owner of total Ac.2.14 dec. of land under three sale deeds and got it recorded in his name in the M.S. R.O.R. Out of the same, he sold Ac.1.98 to the present petitioners under two registered sale deeds dated 16.04.1993. (B) It may be stated here that the property purchased by Jagdish Prasad Khemeka had been recorded in the name of Bijaya Dixit, wife of Chandramani Dixit in the record of right with note of possession of the present opposite party no.1 as bhag tenant in the remarks column. (B) It may be stated here that the property purchased by Jagdish Prasad Khemeka had been recorded in the name of Bijaya Dixit, wife of Chandramani Dixit in the record of right with note of possession of the present opposite party no.1 as bhag tenant in the remarks column. Jagdish Prasad Khemeka filed Revision Case No.1684 of 1984 challenging the entries made in the said record of rights in the name of Bijaya Dixit, so also the entry of note of bhag tenancy in favour of opposite party no.1. The revision was, however, dismissed. Jagdish Prasad Khemeka filed Review Case No.4 of 1988 before the Commissioner, Land Records, Settlement, Orissa and by order dated 03.03.1988, the Commissioner while disposing of the review directed Jagdish Prasad Khemeka (review petitioner) to file mutation proceeding before the Tahasildar-Bhadrak and also directed the Tahasildar to dispose of the matter after going through all formalities. This order was directed to be incorporated as part of the revisional order under review. (C) In pursuance of the aforesaid review order, Jagdish Prasad Khemeka filed Mutation Case No.1448 of 1988 and the Tahasildar, Bhadrak allowed the said mutation case and accordingly, R.O.R under Annexure-6 in respect of Ac.2.16 of the purchased land of Jagdish Prasad Khemeka was prepared under Khata No.1390/295. (D) It further transpires that after their purchase, the petitioners filed Mutation Case No.1332 of 1993, which was allowed on 28.07.1993 vide order under Annexure-9 and accordingly the purchased area of the petitioners measuring Ac.1.98 dec. from Jagdish Prasad Khemeka was corrected as Plot Nos.477 & 6216 under Khata No.1390/320 in the name of the petitioners. (E) It is further to be noted that OLR Case No.1 of 1988 was initiated by opposite party no.1 under Section 15(1) (b) of the OLR Act against Bijaya Dixit claiming bhag chasi right in respect of the case land, evidently, because at that point of time the records of rights stood in the name of Bijaya Dixit with note of possession as bhag chasi. Bijaya Dixit appeared in the said proceeding before the Tahasildar-cum-Revenue Officer, Bhadrak and filed her objection (Annexure-12) denying her ownership over the case land as also the allegation of inducting opposite party no.1 as bhag tenant in respect of the case land. By order dated 16.12.1989 (Annexure-13), the Revenue Officer rejected the claim of opposite party no.1. Bijaya Dixit appeared in the said proceeding before the Tahasildar-cum-Revenue Officer, Bhadrak and filed her objection (Annexure-12) denying her ownership over the case land as also the allegation of inducting opposite party no.1 as bhag tenant in respect of the case land. By order dated 16.12.1989 (Annexure-13), the Revenue Officer rejected the claim of opposite party no.1. Challenging the order under Annexure-13, opposite party no.1 filed OLR Appeal No.2 of 1990 before the Officer on Special Duty (LR), Balasore, Camp Court at Bhadrak. The appellate authority though came to the conclusion by his final order dated 29.03.1993 (Annexur-14) that Bijaya Dixit is not the owner of the land in question, but set aside the order of the Revenue Officer and remanded the matter for fresh hearing and disposal. After such remand, Jagdish Prasad Khemeka was impleaded as party to the OLR proceeding and filed objection denying the bhag tenancy right of the opposite party no.1 stating that he was neither the tenant under Bijaya Dixit, who had no locus standi to induct anybody as tenant over the land, which did not belong to her. Again, by order dated 09.12.1993 (Annexure-15), the Tahasildar, Bhadrak rejected the claim of opposite party no.1. Aggrieved by the same opposite party no.1 filed OLR Appeal No.1 of 1994 before the Sub-Collector, Bhadrak. The appeal was disposed of on 23.07.1997 by order under Annexure-16 again remanding the proceeding to the Tahasildar-Revenue Officer. Challenging the said remand order, Jagdish Prasad Khemeka filed OLR Revision No.21 of 1997 (Annexure-17) before the Additional District Magistrate, Bhadrak, who dismissed the revision and confirmed the appellate order. Challenging the aforesaid revisional order, the present petitioners, who had already purchased the land in question from Jagdish Prasad Khemeka, filed OJC No.12084 of 1999 before this Court. The writ petition was disposed of on 22.11.1999 and this Court was not inclined to interfere with the remand order and directed to dispose of the original proceeding within three months. (F) Thereafter, by order dated 30.12.2000 under Annexure-18 the Tahasildar-cum-Revenue Officer rejected the claim of bhag tenancy made by opposite party no.1. Challenging the said rejection order, opposite party no.1 filed Appeal No.1 of 2001 before the Sub-Collector, Bhadrak, who by his order dated 28.09.2001 under Annexure-19 allowed the appeal accepting the claim of opposite party no.1. (F) Thereafter, by order dated 30.12.2000 under Annexure-18 the Tahasildar-cum-Revenue Officer rejected the claim of bhag tenancy made by opposite party no.1. Challenging the said rejection order, opposite party no.1 filed Appeal No.1 of 2001 before the Sub-Collector, Bhadrak, who by his order dated 28.09.2001 under Annexure-19 allowed the appeal accepting the claim of opposite party no.1. The petitioners, thereafter, filed OLR Revision No.4 of 2001 challenging the aforesaid appellate order and the revisional authority, i.e, the Additional District Magistrate, Bhadrak dismissed the revision and confirmed the appellate order by order dated 27.03.2002 (Annexure-20). In the aforesaid scenario, the petitioners have challenged the appellate and revisional orders under Annexures-19 and 20 in this writ petition. 4. Learned counsel for the petitioners submits that admittedly, Bijaya Dixit was never the owner of the disputed property and that she also filed objection in the OLR proceeding stating the same and further contending that she never inducted opposite party no.1 as a bhag tenant and, therefore, the findings of the Sub-Collector and the Additional District Magistrate in the impugned orders that opposite party no.1 is a bhag tenant cannot be sustained. His further submission is that the claim of possession of opposite party no.1 as a bhag tenant was rejected by the Tahasildar-cum-Revenue Officer on assessment of evidence on record, but the appellate authority and the revisional authority without appreciating evidence on record set aside the findings of the Revenue Officer and, therefore, their orders are liable to be quashed. Learned State Counsel and the learned counsel for opposite party no.1 contend that there is no infirmity in the impugned orders. 5. The fact that originally the land in question was obtained by Chandramni Dixit under a registered lease deed from Ganesh Prasad Ray, the original owner is not in dispute. Similarly, the sale of Ac.1.50 dec. in favour of Madan Mohan Kar and Ac.1.00 in favour of Madhabananda Pal by registered sale deeds on 20.09.1965 by Chandramni Dixit is not in dispute. Similarly, the further sales of the property by Madan Mohan Kar and Madhabanand Pal in favour of Jagdish Prasad Khemeka and thereafter the sale by Jagdish Prasad Khemeka in favour of the present petitioners are not in challenge. Similarly, the further sales of the property by Madan Mohan Kar and Madhabanand Pal in favour of Jagdish Prasad Khemeka and thereafter the sale by Jagdish Prasad Khemeka in favour of the present petitioners are not in challenge. It is apparent that somehow in the Hal settlement records the case land was wrongly recorded in the name of Bijaya Dixit, wife of Chandramni Dixit with note of possession of opposite party no.1 as bhag tenant in the remarks column of R.O.R., for which Jagdish Prasad Khemeka challenged the said recording and note of possession by filing Settlement Revision Case no.1684 of 1984 before the Commissioner, Land Records and Settlement and that though the revision was initially dismissed, in Review Petition No.4 of 1988, the Commissioner, Land Records and Settlement modified the revisional order directing, Jagdish Prasad Khemeka to file mutation case before the Tahasildar. Accordingly, the mutation case filed by Jagdish Prasad Khemeka was allowed and his name was recorded by deletion of name of Bijaya Dixit as also the note of possession of opposite party no.1 as bhag tenant. Such mutation and deletion of the note of possession was not challenged by opposite party no.1. Similarly, after purchase of the land by them in 1993, the petitioners also got the land mutated in their names which was not opposed to by opposite party no.1. 6. In the OLR case, Bijaya Dixit was made the opposite party since the present opposite party no.1 claimed tenancy under her. Bijaya Dixit filed objection in the OLR proceeding stating therein that she was never owner of the case land and therefore, there was no question of inducting opposite party no.1 as tenant in respect thereof by her. She specifically stated that her husband had purchased the property and was the sole owner thereof and after his death she succeeded to only Ac.0.39 dec. of land which was recorded in her name in plot no.474 in the Hal settlement. It was also specifically stated by her that in respect Ac.2.16 pertaining to Plot No.477, in respect to which possession of opposite party as bhag chasi has been noted, did not belong to her, nor such noting has any basis. In such view of the matter, the Revenue Officer had rightly come to conclusion that the opposite party was never inducted as a tenant in respect of the land in question by Bijaya Dixit. 7. In such view of the matter, the Revenue Officer had rightly come to conclusion that the opposite party was never inducted as a tenant in respect of the land in question by Bijaya Dixit. 7. A division Bench of this Court in the case reported in ILR 1977, Cuttack 220 : Daitari Biswal and another v. Revenue Officer-cum-Collector under Estates Abolition Act and others have held that for grant of reliefs provided in clauses (a), (b) and (c) of Section 16(1) of the OLR Act the existence of relationship of landlord and tenant had to be enquired into as and when a dispute arose. Jurisdiction of the Revenue Officer to grant these reliefs depended upon existence of such relationship between the litigating parties. In view of the dictum of this Court as seen above and keeping in view the admitted fact that the case land never belonged to Bijaya Dixit and that she herself stated in her objection denying any relationship of landlord and tenant, the Revenue Officer rightly rejected the claim of opposite party no.1. The appellate authority and the revisional authority have failed to appreciate this aspect of the case. 8. The matter was remanded to the Revenue Officer two times and on all the occasions the Revenue Officer negatived the claim of opposite party no.1. The fact that the note of possession of opposite party no.1 as bhag tenant in the R.O.R., which was prepared in the name of Bijaya Dixit wrongly was deleted and the land was recorded in favour of Jagdish Prasad Khemeka as per order in Mutation Case No.1448 of 1988 and subsequently in the name of petitioners on mutation after their purchase from Jagdish Prasad Khemeka was consciously taken into consideration by the Revenue Officer in brushing aside the contention raised by the present opposite party no.1 with regard to the note of possession in the record of rights, as because the said record of rights did not exist anymore after the same was changed by virtue of the mutation order. The appellate and revisional authorities however very much relied upon the ROR which stood in the name of Bijaya Dixit with note of possession in favour of opposite party no.1, without at all taking into consideration the order passed in review by the Commissioner, Land Record and Settlement and the subsequent change of ROR as per orders passed in the mutation case. The appellate and revisional orders, therefore, suffer from non-consideration of material documents. Similarly, the evidence of independent witnesses particularly that of one Narayan Sahu, a boundary tenant, reveals that opposite party no.1 is in possession of the land for the last few years only and he was not a bhag chasi. The evidence of another witness namely, Banamali Dixit revealed that opposite party no.1 was in possession for last 5 to 7 years only. The statements of these witnesses were recorded in the year 2000. Therefore, taking such evidence into consideration along with all other materials on record, the Revenue Officer in his order under Annexure-18 came to the conclusion that opposite party no.1 has come to possess the dispute land during the last 5 to 7 years only and that such possession was forcible but not as a bhag chasi. The import of such evidence has not been considered in its proper perspective by the appellate and revisional authorities. 9. In the aforesaid circumstances, the appellate and revisional orders under Annexures-19 and 20 are not sustainable in the eye of law and accordingly I quash the same and restore the order of Revenue Officer dated 10.12.2000 passed in the OLR Case. The writ petition is accordingly allowed. No costs.