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2016 DIGILAW 1160 (ORI)

Cheru Sandha v. Uma Bhoi

2016-11-25

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. 1. This writ petition challenges the order dated 26.2.1998 passed by the Joint Commissioner, Settlement and Consolidation, Sambalpur, opposite party no. 4, in Consolidation Revision Case No. 1160 of 1988, vide Annexure-3. By the said order, opposite party no. 4 allowed the revision, thereby reversed the order dated 9.2.1983 passed by the Consolidation Officer in Objection Case No.2209/233, vide Annexure-1 and the order dated 15.9.1984 passed by the Deputy Director, Consolidation of Holdings, Sambalpur in Appeal Case No. 113 of 1983, vide Annexure-2 and directed the Consolidation Officer, Bargarh, opposite party no.2 to allot the share of opposite party no. 1. 2. The following genealogy would show the relationship of the parties. Bhubaneswar Dasarath (Son) Moheswar (Son) Kartik (S) Sartuka (S) Asharam (S) Kirkiri (D) Fulamati (D) Fula (D) Parsuram (S) Issueless Uma (D) Gsobardhan (S) Susuru (S) Natha (S) Issueless Arjuna (S) Cheru (S) Prahallad (S) Krupa Panchu (S) Bidya Dibakar (S) Lalita (W) Mani (S) Ugresena (S) 3. The brief facts of the case is that the suit land under L.R. Khata No. 170 corresponding to Major Settlement Holding Nos. 7, 8, 9, 10 and 11 originally belonged to one Bhubaneswar Sandha, who was the common ancestor. Bhubaneswar had four sons, namely, Dasarath, Maheswar, Krupa and Panchu. The present dispute relates to the branch of Dasarath. During consolidation proceeding, the land registered was prepared in accordance with Major Settlement Record of Rights. The opposite party no.1 filed Objection Case No. 2209/233 under Section 9(3) of the O.C.H. & P.F.L. Act claiming 1/4th share in the suit property, describing herself to be the only legal heir of Dasarath and to delete the names of Cheru (petitioner no. 1), Radha (the mother of petitioner no. 1) and Prahallad (the brother of petitioner no. 1) from the L.R. Khata No. 170 on the ground that Parsuram (the grandfather of petitioner no. 1) was not the adopted son of late Kartika Sandha. The Consolidation Officer, opposite party no. 2 came to hold that Arjuna has been recognised as the legitimate successor of Parsuram in the last major settlement and the same has not yet been challenged in any court. Held so, he negatived the claim of opposite party no. 1 and dismissed the case. The Consolidation Officer, opposite party no. 2 came to hold that Arjuna has been recognised as the legitimate successor of Parsuram in the last major settlement and the same has not yet been challenged in any court. Held so, he negatived the claim of opposite party no. 1 and dismissed the case. Assailing the order passed by the Consolidation Officer, opposite party no.1 preferred Appeal Case No. 113 of 1983 before the Deputy Director, Consolidation, Sambalpur, opposite party no. 3. The opposite party no. 3 held that the Consolidation Authorities have no jurisdiction to decide the status of the person and, accordingly dismissed the appeal. Thereafter opposite party no. 1 filed Consolidation Revision Case No. 1160 of 1988 assailing the order passed by the opposite party no. 3. The revisional authority came to hold that the petitioner has not proved the factum of adoption and, accordingly, allowed the revision and directed opposite party no. 2 to allot the share of opposite party no. 1. It is pertinent to mention here that during pendency of this writ petition, opposite party no.1 died. Thereafter her legal heirs have been substituted as opposite party no.1 (a) and (b). 4. Heard Mr. Sukumar Ghosh, learned counsel for the petitioners and Mrs. Sumitra Mohanty, learned counsel for opposite party no. 1 (a) and 1(b) as well as learned Additional Standing Counsel for opposite party nos. 2 to 4. 5. Mr. Ghosh, learned counsel for the petitioners submitted that prior to 1990 the Consolidation Officer dehors its jurisdiction to decide the status of the parties in view of the decisions of this Court in the cases of Puni Bewa vs. Ananta Sahoo, (1979) 47 CLT 494, Pranabandhu @ Panu Ojha vs. Bhikari Maharana @ Ojha, (1984) 57 CLT 65 and Krushna Chandra Nayak vs. Nisamani Bewa, (1986) 61 CLT 564. In Jairam Samantray vs. Baikuntha Samantaray and others, 1991 (I) OLR 29, this Court held that the consolidation authorities have jurisdiction to decide the status of the parties. In view of the same, the petitioners could not prove the case of adoption before the Consolidation Officer, Bargarh, opposite party no.2. Thus, the matter may be remanded to the Consolidation Officer, Bargarh and liberty may be granted to the petitioners to establish that Parsuram is the adopted son of Kartika. 6. Per contra, learned counsel for the opposite parties supported the order. 7. Thus, the matter may be remanded to the Consolidation Officer, Bargarh and liberty may be granted to the petitioners to establish that Parsuram is the adopted son of Kartika. 6. Per contra, learned counsel for the opposite parties supported the order. 7. In Puni Bewa (supra), this Court held that the Consolidation Authorities have not been vested with power to give a declaration on status or to set aside the decree or order of a competition Court. In Pranabandhu (supra), the learned Judge held that the Consolidation Authorities have no jurisdiction to decide the question of adoption. Following the aforesaid view, this Court in Kurshna Chandra Nayak (supra) held that the Consolidation Authorities have no jurisdiction to decide the status. 8. The Division Bench of this Court in Jairam Samantray (supra) held thus:- “Seeking a declaration simpliciter as to legal character as contemplated by Section 34 of the Specific Relief Act is exclusively within the jurisdiction of the Civil Court and not within the competence of the consolidation authorities. Except in case where title is claimed on the basis of transactions inter vivos in most cases title is claimed on the basis of relationship, say as son, father, mother, husband or wife etc. Each such question of relationship is a question pertaining to legal character or status, Don't the consolidation authorities decide such question of legal character in cases after cases day in and day out ? If then the consolidation authorities have jurisdiction to decide the question as to whether a person is son by birth, by what logic or law are they denied jurisdiction to decide if a person is son by way of adoption? Sonship is acquired either by birth or by way of adoption. They are the different modes of acquisition. If title to property as son by birth can be adjudicated upon by the consolidation authorities, we fail to understand why adjudication of claim to title as son by way of adoption should be out of bounds to them. We are, therefore, of the view that the statement of law that the consolidation authorities have no jurisdiction to decide the question of adoption, that being a question of status, is not correct. We are, therefore, of the view that the statement of law that the consolidation authorities have no jurisdiction to decide the question of adoption, that being a question of status, is not correct. In almost every case, consolidation authorities are deciding the question of status but a declaration of the law to the effect that the consolidation authorities have no jurisdiction to decide the question of adoption, if such question arises ancillarily or incidentally for adjudication of right, title and interest in property, is insupportable. We, therefore, hold that though Puni Bewa's case (supra) having regard to the declaration specifically sought has been correctly decided, the other two decisions, referred to above, where question of adoption was to be gone into ancillarily, have been correctly decided.” (Emphasis laid) 9. Before Jairam Samantray (supra), there were divergent views of this Court with regard to the jurisdiction of the consolidation authorities to decide the question of adoption, if such question arises ancillarily or incidentally for adjudication of right, title and interest in property. In view of this uncertainty, the parties were in a dilemma to put forth their claim before the consolidation authority. The parties cannot be blamed. Such an impasse arose because of the divergent views of this court. In view of the same, ends of justice would be better served if an opportunity is provided to the parties to put forth their case before the consolidation authority. 10. As a sequel to the above conclusion, the order dated 26.2.1998 passed by the Joint Commissioner, Settlement and Consolidation, Sambalpur, opposite party no. 4 in Consolidation Revision Case No. 1160 of 1988, vide Annexure-3, the order dated 9.2.1983 passed by the Consolidation Officer in Objection Case No. 2209/233, vide Annexure-1 and the order dated 15.9.1984 passed by the Deputy Director, Consolidation of Holdings, Sambalpur in Appeal Case No. 113 of 1983, vide Annexure-2 are quashed. The matter is remitted back to the Consolidation Officer, Bargarh for de novo hearing. 11. The writ petition is disposed of.