Nirmal Kumar Swain v. Commissioner, Consolidation, Orissa, Cuttack
2016-12-20
BISWANATH RATH
body2016
DigiLaw.ai
JUDGMENT : Biswanath Rath, J. This writ petition has been filed challenging the order under Annexure-5 to this petition passed by the Revisional Authority in exercise of power under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. 2. In assailing the impugned order, learned counsel for the petitioners contended that since the petitioners have succeeded in both the Courts below, it was incumbent on the part of the revisional authority first to frame proper issues and then to give its finding reversing the finding of the Courts below. The revisional authority reversed the findings of the original authority as well as the appellate authority in absence of any reverse finding. Since the revisional authority has answered on a non-issue, the revisional order is not sustainable in the eye of law. 3. Learned counsel for the private opposite party on the other hand, contended that for the core issue farmed whether the sale effected involving the disputed property is appropriate or not, the revisional authority was justified in giving a finding on the same. It is, therefore, contended that the judgment of the revisional authority cannot be found to be faulted with. In drawing this Court’s attention to the findings of the revisional authority at page 64 of the brief, learned counsel for the private opposite party contended that the revisional authority has given a right finding on the core issue involving the subject and therefore, there is no error in the impugned order. 4. Learned State Counsel also supports the stand taken by the learned counsel for the private opposite party. 5. Having heard the learned counsels for the respective parties, this Court finds, the petitioners have succeeded in the original case as well as in the appeal forum and by the impugned order, the orders of the original authority as well as the appellate authority has been set aside. On perusal of the impugned order, this Court finds, the revisional authority has framed the following issues : “(1) Whether the plaintiff was in possession of the land for over 70 years. (2) Whether the 1st defendant was entitled to possession of any area in excess of the first Kuthakapattam for 12 years. (3) Whether the trespass was on 13/16 October, 1939 and whether the plaintiff was evicted on July 24, 1939 by the Govt. from the suit land in addition to Ac.
(2) Whether the 1st defendant was entitled to possession of any area in excess of the first Kuthakapattam for 12 years. (3) Whether the trespass was on 13/16 October, 1939 and whether the plaintiff was evicted on July 24, 1939 by the Govt. from the suit land in addition to Ac. 160.00 dec.” Looking to the dispute involved in the matter, this Court finds, the core issue involving the sale of the property by the particular person in the garb of Patta is valid or not. This Court nowhere finds framing of such issue, though both the lower Courts orders had a clear finding on this particular issue. On perusal of the revisional order, this Court finds, the revisional authority has answered a question without either framing such issue or giving opportunity of hearing the parties in contest. 6. Under the circumstances, the revisional order cannot be sustained. Accordingly, while interfering in the revisional order, this Court sets aside the same and remits the matter back to the revisional authority for fresh adjudication of the matter by framing issues appropriately and answering the same by giving opportunity of hearing to both the sides. 7. It is made clear that this Court has not expressed any opinion on any of the issues. Since this matter is decided on contest and in presence of both the parties, both the parties are directed to appear before the revisional authority on 12th of January, 2017 along with a certified copy of this order to enable him/her to conclude the revision within a period of two months thereafter. 8. The writ petitions stand allowed but with an order of remand. There is no order as to cost.