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2016 DIGILAW 1012 (ORI)

Gajendra Sahu v. Indramani Behera

2016-11-01

BISWANATH RATH

body2016
JUDGMENT : BISWANATH RATH, J. 1. All these three writ petitions filed by Gajendra Sahu assailing the orders passed by the Revisional Authority in Revision Case Nos. 69 of 2009, 70 of 2009 and 71 of 2009 respectively. All the above three revisions were filed before the Commissioner, Consolidation & Settlement appears to be under Sections 15 and 25 of the Orissa Survey & Settlement Act for mutation and recording of M.S. Plot No. 341, area Ac.0.07 decimals, M.S. Plot No. 337, area Ac.0.03 and M.S. Plot No. 338, area Ac.0.02 decimals respectively but all corresponding to Major Settlement Khata No. 261, 141 and 199 respectively again all corresponding to C.S. plot no. 349 (P). In dismissing the revisions, as appearing in all the writ petitions under Annexure-1, it appears that the Revisional Authority referring to the Civil Court judgment in O.S. No. 91-1 of 1978 dated 24.11.1982 and the order of the civil Court being confirmed in Title Appeal No. 01/69 of 1983/87 and then in Second Appeal No. 201 of 1989 dated 16.8.1989 by this Court found the claim of the petitioner un-genuine and consequently dismissed all the three revisions being decided on same date on a common approach for the similarity in all the three cases. 2. In assailing the impugned orders in Annexure-1 in all the writ petitions, learned counsel for the petitioner in a common approach contended that before coming to such conclusion, the Commissioner should have made an inquiry to find out which plot in Sabik Record-of-Right corresponds to C.S. Plot No. 349 (P) and consequently whether the petitioner is in possession of the plots claimed therein by virtue of the Registered Sale Deed under Annexure-2? It is further contended that the Commissioner has misapplied the judgment in O.S. No. 91 of 1978 and failed to appreciate the land claimed in the revision did not cover by the said judgment. Further, since the sale deed involved therein was registered on 4.10.1974 after obtaining due permission under Section 22 of the O.L.R. Act came into force on 16.9.1974, the Commissioner treating the sale deed as void runs contrary to law and an outcome of non-application of mind. The Commissioner also failed in appreciating the prima facie title and possession of the petitioner in all the three writ petitions as against the opposite parties in these writ petitions. The Commissioner also failed in appreciating the prima facie title and possession of the petitioner in all the three writ petitions as against the opposite parties in these writ petitions. Further, petitioner’s long possession over 30 years in respect of the disputed land also created a right in favour of the petitioner by virtue of adverse possession has also been not properly appreciated by the Revisional court. The Revisional court’s judgment also suffers on account of finding fault with the sale deed on mere technicalities in the sale deed describing case land in terms of sabik Record-of-Right. It is on these premises, learned Counsel for the petitioner contended that the impugned order remains unsustainable. 3. Learned counsel appearing for the contesting opposite parties on the other hand submitted that the suit at the instance of the petitioner (O.S. No. 91-1 of 1978) having been decreed in respect of ‘Ka’ schedule of land and which decree having been confirmed by the Second Appellate Court in dismissal of the S.A. No. 201 of 1989, the petitioner remained unsuccessful in his attempt all through and his subsequent filing of the revision, the question of claim of the present petitioner in the suit involving C.S. Plot No. 349 has been negatived by the Civil Court has been rightly appreciated by the Revisional Court and, therefore, the Revisional Court did not commit any illegality in passing the impugned order involved in all the writ petitions. Learned State Counsel supported the contention raised by the counsel appearing for the private parties and also contended that there is no illegality in the impugned order involving all these three writ petitions. State Counsel adopted the line of argument advanced by the counsel for private opposite parties. 4. For the common fact, common document and common pleadings of the respective parties involving in all the three writ petitions, this Court disposes all the three writ petitions by the following common judgment. 5. State Counsel adopted the line of argument advanced by the counsel for private opposite parties. 4. For the common fact, common document and common pleadings of the respective parties involving in all the three writ petitions, this Court disposes all the three writ petitions by the following common judgment. 5. The undisputed fact remains involve in all the three writ petitions is that the present petitioner in all the writ petitions before approaching the Revisional Authority preferred a suit in the court of Munsif, Bhadrak in O.S. No. 91-1 of 1978 for declaration of right, title interest and possession over the suit land and permanent injunction restraining the defendants therein from entering into the suit land and interfering with the possession of the plaintiff and in alternate, in the event the petitioner-plaintiff is found to be dispossessed during pendency of the suit for a decree of recovery of possession. The suit comprises "Ka" & "Kha" Schedule property and the suit also involved consideration of sale deed No. 5531 dated 4.10.1974, the suit on contest was decreed with the following order: “That the suit is decreed partly with cost on contest against D-1, D-2 and D-9 and ex-parte against D-3 to D-8 without cost. The plaintiffs right, title and interest is declared in respect of the "Ka" schedule land and for the lands as per list given below. The defendants are permanently restrained from entering into the above said lands and interfering in any manner with the possession of the suit land. List of Properties declared 1. Entire "Ka" schedule land 2. "Kha" schedule: Khata No. 199, Plot No. 342-A0.03 dec. Plot No. 379-A034 dec. Plot No. 414-A0.21 dec. Plot No. 531-A0.32 dec.” Reading of the aforesaid decree, it became clear that the suit was decreed against the defendants therein in respect of "Ka" Schedule land and thus it becomes apparent that the suit was dismissed in respect of “Kha" schedule property. From the further pleadings of the parties, it also appears that the plaintiff-petitioner remain satisfied with the judgment and decree in the suit. It is only the defendant No. 1 therein the preferred Title Appeal No. 1/69 of 1983/87 and the Title Appeal being dismissed, very same defendant No. 1 thereafter filed S.A. No. 201 of 1989 which was dismissed by this Court consequently confirming the judgment and decree in O.S. No. 91-1 of 1978. It is only the defendant No. 1 therein the preferred Title Appeal No. 1/69 of 1983/87 and the Title Appeal being dismissed, very same defendant No. 1 thereafter filed S.A. No. 201 of 1989 which was dismissed by this Court consequently confirming the judgment and decree in O.S. No. 91-1 of 1978. Under the circumstance, the petitioner cannot claim anything going behind the civil court decree which remained unchallenged by him at least. Reading of the pleadings of both the parties in the court below i.e. in the Revisional Court at the instance of the present petitioner in all the writ petitions, this Court finds fate of the parties remain much dependent upon close scrutiny of the dispute involved in O.S. No. 91-1 of 1978. Perusal of the impugned order, this Court finds even though the Revisional Court referred filing of the suit and consequence thereof in the Civil Suit up to the level of Second Appeal, but nowhere discussed as to whether the judgment and decree in the suit involved the present disputed property. For the dispute involved in the revisions, this Court feels the Additional Commissioner deciding the revision petitions involved in all the writ petitions ought to have discussed the fact and disputes involved in the Civil Suit and the finding involving therein in relation to the disputed property in the suit should have decided the fate of the parties in the revision. The Commissioner having not discussing the dispute involved in the suit and its bearing on the present claim, the findings arrived at by the Revisional Authority is not supportable, consequently, not sustainable in the eye of law. 6. Under the circumstance, this Court sets aside the impugned order under Annexure-1 in all the writ petitions and remits the matters back to the Revisional Court for re-consideration of the Revision Case Nos. 68 of 2009, 70 of 2009 and 71 of 2009 respectively in all the three writ petitions indicated hereinabove and following the direction of this Court the Revisional Authority is now required to re-hear the revisions and decide the matter afresh after affording opportunity of hearing to the respective sides. 68 of 2009, 70 of 2009 and 71 of 2009 respectively in all the three writ petitions indicated hereinabove and following the direction of this Court the Revisional Authority is now required to re-hear the revisions and decide the matter afresh after affording opportunity of hearing to the respective sides. It is made clear that this Court has not made any expression on the merit of the case and the case of the parties is now required to be decided on its own merit, independently and without being influenced by the expression made hereinabove and also in the impugned order under Annexure-1 involving each writ petitions. However, there is no order as to cost.