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2016 DIGILAW 1011 (ORI)

Narayan Dalai v. Bhramar Dalai

2016-11-01

BISWANATH RATH

body2016
JUDGMENT : BISWANATH RATH, J. 1. This writ petition is filed assailing the impugned orders under Annexures-4, 5 and 6 passed by the competent authorities in exercise of their power under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short the O.C.H. & P.F.L. Act, 1972). 2. For the involvement of several sets of objection cases, appeals and revisions, to avoid confusion, it is necessary to bring the following facts before proceeding to enter into the factual dispute involved in the case, presently the dispute in the writ petition confined to Objection Case No. 2511 of 1996 resulting thereon Appeal No. 126 of 1999 and finally Revision No. 362 of 2000 involving the orders under Annexures-4, 5 and 6. 3. Short background involved in the case is that the land involved in the present proceeding recorded in L.R. Khata No. 190 of Mouza-Bisarpur corresponds to Sabik Settlement Khata No. 182 stood recorded in the name of Mahanta Bhagaban Ramanuja Das, as the intermediary, predecessor of the petitioners, namely, Bharat Dalai having been separated from his brothers in mess and property remained as a Rayat under the intermediary thereby remained in physical possession of the disputed land. It is in this capacity, on the date of vesting of the land treated as a Rayat under the State Government. On an application by the aforesaid predecessor of the petitioners registered as O.L.R. Case No. 216 of 1973, the Revenue Officer Nimapara by order dated 12.12.1973 was pleased to settle the land in question in favour of the predecessor of the petitioners on payment of premium to the tune of Rs.664.20. Petitioners further case is that the predecessor of the petitioners could not be in a position to pay the amount assessed within the time limit for which the Revenue Officer by order dated 26.6.1980 was pleased to allow the predecessor of the petitioners to deposit the premium assessed within seven days consequent upon which the entire premium was also deposited on 30.6.1980. Annexure-1 is the certified copy of Sabik Settlement Record of Rights and the order-sheet in O.L.R. Case No. 216 of 1973 appears at Annexure-2. Annexure-1 is the certified copy of Sabik Settlement Record of Rights and the order-sheet in O.L.R. Case No. 216 of 1973 appears at Annexure-2. While the matter stood thus, in terms of direction dated 29.11.1994 of the Director, Consolidation in suo motu R.P. Case No. 4738 of 1994, the consolidation operation in the Mouza-Bisarpur started denovo, land register in respect of the disputed land was prepared in the name of the predecessor of the petitioners alone. It is at this stage, the opposite party nos. 1 and 2 filed Objection Case claiming the disputed land to be recorded in their joint name along with the petitioners, being joint owner of the property. This matter was heard along with several other Objection Cases relating to other lands. Order passed in Objection Case being challenged in appeal, all the matters including the dispute involved in Objection Case No. 2511 of 1996 was remanded for fresh consideration vide Remand Appeal No. 39 of 1997. The Remand Appeal No. 39 of 1997 was disposed of recording the land in question as joint property of the opposite party nos. 1, 2 and the petitioners as find place at Annexure-4. Petitioners preferred appeal vide Appeal No. 126 of 1999, which appeal was disposed of along with other batch of cases by judgment dated 23.9.2000 by a common judgment appearing at Annexure-5. Petitioners Revision Case No. 362 of 2000 as against this appeal was heard along with other revisions involving other appeals and the revision applications were dismissed by a common judgment dated 24.9.2001 as appearing at Annexure-6. 4. Assailing the impugned orders vide Annexures-4, 5 and 6, Sri S.K. Dash, learned counsel for the petitioners contended that the findings of the courts below not only remain contrary to the materials available on record but some of the findings also remain contrary to their own findings rendered earlier. Further, the findings with regard to previous partition of the property between the ancestor of the petitioners and contesting opposite parties ultimately also remain beyond the materials available on record. It is thus, contended by Sri Dash, that the impugned judgments are perverse and cannot be sustainable in the eye of law. 5. In spite of sufficiency of notice, there is no appearance on behalf of the contesting opposite party nos. 1 and 2. It is thus, contended by Sri Dash, that the impugned judgments are perverse and cannot be sustainable in the eye of law. 5. In spite of sufficiency of notice, there is no appearance on behalf of the contesting opposite party nos. 1 and 2. Learned State Counsel however, in his opposition to the submissions of learned counsel for the petitioners submitted that in view of the particular finding of facts by all the courts, the grounds raised by the petitioners are of no value and the impugned orders have no scope for being interfered at this stage. 6. Considering the submissions of learned counsel appearing for the respective parties, this Court finds there is no dispute with regard to the petitioners submission that originally the land belong to Mahanta Bhagaban Ramanuja Das, who was an intermediary over the disputed property vide L.R. Khata No. 190 of Mouza Bisarpur corresponding to Sabik Settlement Khata No. 182. There is also no dispute with regard to an application being filed by the predecessor of the petitioners claiming to be the rayat under the intermediary involving O.L.R. Case No. 216 of 1973, the Revenue Officer, Nimapara disposed of the said O.L.R. Case by order dated 12.12.1973 settling the land in favour of the Rayat, namely, Bharat Dalai, the father of the petitioners on payment of premium of Rs.664.20 paise. Perusal of the records, this Court finds there is no dispute either in the initiation of the proceedings vide O.L.R. Case No. 216 of 1973 or the orders passed therein involving annexures-1 and 2. Similarly, there is also no dispute with regard to the order passed in R.P. Case No. 4738 of 1994 and the order being passed opening Land Register involving the disputed land in the name of predecessor of the petitioners, Bharat Dalai. It is at this stage, it is to be seen as to materials in support of the objectors making a claim in Objection Case No. 2511 of 1996. Reading of the order under Annexure-4, it appears that the original court for the involvement of several objection cases decided the matter in a common order treating the fact scenario in all the Objection Cases as one set of pleading. Reading of the order under Annexure-4, it appears that the original court for the involvement of several objection cases decided the matter in a common order treating the fact scenario in all the Objection Cases as one set of pleading. For the difference in fact scenario in the objection cases, particularly, involving the Objection Case No. 2511 of 1996 corresponding to L.R. Khata No. 190 for having altogether a different set of pleading, this Case should have been decided independently. Perusal of the objection case, at internal page 5, this Court finds there appears a specific pleading to the effect that father Narayan Dalai and others claimed that the L.R. Khata No. 190 was exclusively settled in favour of Bharat Dalai vide O.L.R. Case No. 216 of 1973 by order of the Revenue Officer, Nimapara and consequently the Consolidation Authority have also gave a finding while preparing the record in favour of Narayan Dalai and others holding they are the sons of Bharat Dalai. Basing on this finding, Objection Case No. 2511 of 1996 involving L.R. Khata No. 190 stood rejected, as clearly finds place at page 20 of the brief, while passing separate order in respect of other objection cases, which are of course not the subject matters of this case, clearly appearing in Annexure-4. Appeal No. 126 of 1999 being filed against the said order also was dismissed confirming the order passed by the original authority. From the reading of the observations of the original authority as well as the appellate authority, this Court finds that for the difference in the fact scenario involved in the Objection Case No. 2511 of 1996, both the authority should have decided the matter on independent consideration of the case involved in Objection Case No. 2511 of 1996. Now, coming to the revision at the instance of the petitioners vide Revision No. 362 of 2000, this Court finds in deciding this revision along with other revisions involving other objection cases, the revisional court framed the following issues: "(1) Whether the disputed land is the joint family property or not? (2) Whether the Regd. Gift deed of 1925 executed by Rajan valid or not? (3) Whether the settlement made in favour of Bharat in OLR Case No. 216/73 enures benefit to his other two brothers?" And again decided the matter treating all the objection cases to have a common pleading. (2) Whether the Regd. Gift deed of 1925 executed by Rajan valid or not? (3) Whether the settlement made in favour of Bharat in OLR Case No. 216/73 enures benefit to his other two brothers?" And again decided the matter treating all the objection cases to have a common pleading. Perusal of the discussion in the revisional order, this Court finds surprise that not only the findings on the issues arrived therein remain contrary to materials available on record, more surprisingly, this Court also finds that the property involved in Khata No. 190 is a joint property, which is being contrary to the materials available on record as well as the pleadings of the respective parties and thus remain perverse. Now, coming to the findings in respect of Issue Nos.2 and 3 of the revisional authority, this Court while answering issue No. 1 though held that the property remained in joint status for some time and subsequently has been partitioned, but answering Issue No. 2 regarding validity of the Regd. Gift deed in 1925 has come to record the findings of the Consolidation Officer that there was no partition of the joint family property and Rajan was not competent to transfer such property in 1925. The finding of the revisional court that the claim of partition of the disputed property is sustainable is found to be not only in absence of any pleading and material to that effect but also in absence of a finding disturbing the finding of the original authority who have categorically held that there was no partition of the joint family property. Be that as it may, since this Court finds the case involved in Objection Case No. 2511 of 1996 resulting Appeal No. 126 of 1999 and Revision No. 362 of 2000 was altogether different. Objection Case No. 2511 of 1996 should have been considered separately and taking into consideration the orders and materials available on record vide Annexures 1 to 3. 7. Objection Case No. 2511 of 1996 should have been considered separately and taking into consideration the orders and materials available on record vide Annexures 1 to 3. 7. Under the circumstance, while interfering in the impugned orders, this Court sets aside the impugned orders vide Annexures-4, 5 and 6 so far it relates to the observations involving Objection Case No. 2511 of 1996, Appeal No. 126 of 1999 and Revision No. 462 of 2000 and remits the matter back to the Original Authority to re do the hearing involving Objection Case No. 2511 of 1996 and decide the matter afresh giving opportunity of hearing to the parties in dispute. This Court further makes it clear that the impugned orders so far it relates to other objection cases, other appeals and other revisions remain undisturbed. However, there is no order as to cost.