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2016 DIGILAW 1263 (ORI)

Narendra Kumar Prusty v. Prafulla Kumar Prusty

2016-12-21

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This writ petition has been filed challenging the impugned orders under Annexures-3 & 5 passed by the Consolidation Officer in Remand Revision Case No.355/84 and the Joint Commissioner Consolidation and Settlement in Consolidation Revision Case No.680 of 1998 respectively. 2. Short background involved in this case is that the suit land pertaining to Sabik Khata No.61 was in the name of Giridhari Jew marfat Adhikari Anadi Das. The said Marfatdar by way of Seba Samarpana Patra on 8.5.1909 transferred the deity alongwith its properties to Narana Prusty, Baidhar Prusty, Kalandi Prusty, Sundari Dei and Krushna Sahu. At a subsequent stage, the above persons again by way of a registered Seba Samarpan Patra on 22.5.1912 transferred the deity with its property to Narana Prusty, who by this process became the sole entity of the deity. Narana Prusty through an unregistered Permanent lease dtd.1.7.1925 leased out the suit land to one Kalpataru Mallik. From this date, Kalpataru Mallik was in peaceful possession of the land. Kalpataru Mallik being in peaceful possession of the land going on paying rent to the intermediary. In the year 1951, a litigation started between Narana and his co-sharers namely Bhagaban Prusty, Ratnakar Prusty creating disturbances in the smooth possession of Kalpataru Mallik over the disputed property. It is at this stage, Kalpataru Mallik filed a Title Suit bearing No.308/1951 before the Munsif, Jajpur clamming his occupancy right over the land. The suit was decreed by the judgment and decree dated 30.10.1953. There was no challenge to the said judgment and decree. While the matter stood thus, Kalpataru Mallik transferred the suit land through registered sale deed bearing No.391, dated 20.1.1969 and subsequently, delivered the possession to one Prafulla Kumar Prusty. Prafulla Kumar Prusty remained in continuous possession over the disputed land, which has been settled in the meantime with fair and equitable rent in favour of Prafulla Kumar Prusty by an order of the O.E.A. Collector in O.E.A. Case No.1248/87. 3. It is at this stage, it appears that Bhagaban Prusty and Ratnakar Prusty initiated a proceeding under Section 37(1) of the O.C.H. & P.F.L., 1972 for recording of the land in their favour on the premises that they have been declared as co-shebayats vide T.A. No.3/35 being confirmed in T.A. No.27/39. The deity properties have been transferred without having any permission of the Endowment Commissioner. The deity properties have been transferred without having any permission of the Endowment Commissioner. It is thus, claimed that the transfer of the disputed property in favour of Kalpataru Mallik is therefore, void. Consequently, any order passed by any of the authorities following such transfer also becomes void. The suit and the other proceedings since did not involve Bhagaban Prusty and Ratnakar Prusty, the judgment and orders passed therein are not binding on these two parties. It is in these premises, the adversary claimed for recording their name against the disputed property in the Revision Case No.355/1984 along with the name of the present opposite party No.1. This Revision Case had been remanded to the C.O., Dharmasala and the C.O., Dharmasala illegally disallowed the claim of the petitioners in disposing the Remand Revision Case No.355/84 by order dated 26.7.1994 at Annexure-3. Above order vide Annexure-3 was challenged by the petitioners in Consolidation Appeal vide No.122/1994. The appellate authority vide its judgment dated 24.3.19998 allowed the appeal and issued necessary direction for recording the disputed land in favour of Giridhari Prusty, Jagabandhu Prusty, Prafulla Kumar Prusty and the present petitioners at Annexure-4. The respondent No.3 i.e. the present opposite party No.1 filed Consolidation Revision Case No.80/98. This revision was decided on contest after observing that the Consolidation Authority cannot go behind the orders of the O.E.A. Collector and the decision given by the Deputy Director in the appeal became bad. Consequently, the revisional authority while setting aside the order passed in the appeal confirmed the order passed by the original authority. 4. In assailing the impugned order, learned counsel for the petitioners submitted that Bhagaban Prusty, Ratnakar Prusty and Narana Prusty have been held to be the co-marfatdars, co-sebayat and hereditary trustee of the religious institution involving the disputed properties by the competent Court under the O.H.R.E. Act. Said order became binding on the Consolidation Authorities. The Consolidation Authorities having failed in appreciating the above legal aspect arrived at wrong impugned judgment. Said order became binding on the Consolidation Authorities. The Consolidation Authorities having failed in appreciating the above legal aspect arrived at wrong impugned judgment. Learned counsel for the petitioners further contended that the original authority as well as the Commissioner got misguided by the judgment and orders referred to in Annexures-6 & 7 which were not only ex parte order but also passed behind back of the petitioners and for nondisclosure of the development involving the present petitioners in the O.H.R.E proceedings again the deity was never a party in all such proceedings at the instance of the said Kalpataru Mallik and as such claimed that the judgment and decree obtained by the said Kalpataru Mallik were not binding on the present petitioners. Both the C.O. and Commissioner have failed in appreciating the above aspect. Further, Kalpataru’s claim being based on the sale deed by an incompetent person and the sale deed being void in the eye of law, any decision pursuant to thereof becomes also void. The C.O. as well as the Commissioner having failed in appreciating the aforesaid aspect, arrived at wrong and erroneous impugned judgments. It is also further contended that since the O.E.A. order was obtained on the basis of a void document, there was no impediment on the C.O. or the Commissioner for ignoring the same in order to arrive at a just decision. Under the circumstances, learned counsel for the petitioner contended that the orders under Annexures-3 & 5 are all bad and should be interfered with and set aside. 5. Learned counsel for the private opposite parties while reiterating his client’s stand in the Courts below contended that the transaction in favour of the Kalpataru Mallik being by way of registered sale deed at the instance of one of the marfatdar, cannot be held to be void and accordingly, there is no wrong committed either by the C.O. or by the Revisional authority. Secondly, for the judgment and decree passed in T.S. No.3 of 1935 as well as in the appeal No.27 of 1939, since did not involve Kalpataru Mallik, all these judgments have no binding effect on Kalpataru Mallik. Secondly, for the judgment and decree passed in T.S. No.3 of 1935 as well as in the appeal No.27 of 1939, since did not involve Kalpataru Mallik, all these judgments have no binding effect on Kalpataru Mallik. Learned counsel for the opposite party No.1 also contended that for the orders of the O.E.A. Authority in favour of the Kalpataru Mallik involving the suo motu O.E.A. case No.1243 of 1987, the orders of the O.E.A. authority remain binding on the Consolidation authority. It is in these premises, learned counsel for the opposite party No.1 contended that there is no wrong committed either by the C.O. or by the Commissioner leaving any scope for interfering in the impugned order. 6. Learned State Counsel also supported the stand taken by the learned counsel for the opposite party No.1. 7. From the above narration, it appears, there remains two sets of facts. In one hand, the fate of the petitioners and the Narana Prusty vis-à-vis the deity property involving the suit property has been adjudicated upon in the duly constituted proceedings in exercise of power under the O.H.R.E. Act and there has been a concurrent finding that the present petitioners and Narana Prusty are the co-marfatdar as well as the Sebayats of the deity and joint custodian as well. This order has never been challenged. Thus, there is a clear admission that the petitioners and Narana Prusty have a joint interest over the deity property involving the disputed property. In the second set of fact, it appears, there has been a transaction by Narana Prusty through an unregistered permanent lease deed on 1.7.1925. There is a proceeding before the O.E.A. authority and some suit at the instance of the Kalpataru Mallik creating a right in favour of the Kalpataru Mallik in favour of the purchasers of the Kalpataru Mallik are all on the outcome of the unregistered permanent lease deed dated 1.7.1925 at the instance of the Narana Prusty one of the co-sebayat and marfatdar in favour of the Kalpataru. Thus moot question remain to be decided here is whether the permanent lease dated 1.7.1925 in favour of the Kalpataru Mallik being created by one of the co-sebayat/marfatdar late Narana Prusty becomes valid? In the event, it is found that the transaction above is invalid then all transactions thereafter, even through civil proceeding or O.E.A. proceedings also automatically become invalid. 8. In the event, it is found that the transaction above is invalid then all transactions thereafter, even through civil proceeding or O.E.A. proceedings also automatically become invalid. 8. On perusal of the impugned orders, this Court finds, there has been no consideration of the aforesaid issue either by the Consolidation Authority or by the Commissioner. In absence of which, the impugned orders remain unsustainable but as the matter still remain unresolved, this Court while setting aside the impugned order vide Annexures-3 & 5 remands the Revision Case to the Revisional Authority for considering the matter afresh taking into the questions framed hereinabove and after giving opportunity of hearing to all the parties concerned. 9. The writ petition stands allowed but with the direction indicated hereinabove. Parties to bear their respective costs.