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2016 DIGILAW 333 (ORI)

Gunnam Sarada v. Sub-Collector, Rayagada

2016-04-27

C.R.DASH

body2016
JUDGMENT : C.R. Dash, J. 1. The petitioner, in this writ application, has challenged initiation of the proceeding under Section 52 of the Orissa Land Reforms Act, 1960 (“Act” for short) and the order passed by the Revenue Officer-cum-Tahsildar, Rayagada on 30.09.2010 in O.L.R. Case No.10 of 2002, vide Annexure-4. 2. Gunnam Subbarao and Gunnam Ramayamma were husband and wife. Gunnam Subbarao died in the year 1948 and Gunnam Ramayamma died in 1982. They were blessed with four sons and four daughters. Out of whom, their fourth son namely Chandramauli died in his spate of bachelorhood in July, 1953, elder son Appa Rao died in the year 1973 and third son G. Hanumanji (husband of the present petitioner Smt. Sunnam Sarada) died in 1977. Their first daughter namely V. Vanumati has also died in the year 1999. 3. Against late G. Ramayamma (mother-in-law of the present petitioner), O.L.R. Case No.14 of 1974 was initiated, and against G. Hanumanji (third son of G. Ramayamma and late husband of the present petitioner) O.L.R. Case No.12 of 1974 was initiated. On death of G. Hanumanji, the present petitioner was substituted in O.L.R. Case No.12 of 1974. O.L.R. Case No.12 of 1974 was closed in the year 1994, and it was held that G. Sarada (present petitioner) was entitled to retain Ac.44.741 decimals of land. The finally modified confirmed statement about ceiling surplus land and retainable land of Gunnam Sarada was published on 18.04.1994. The land of Ac.44.741 decimals is equivalent to ten standard acres. As it includes different classes of lands, in the said proceeding, i.e. O.L.R. Case No.12 of 1974 it was held that the extent of Ac.16.799 decimals equivalent to 3.733 standard acres was the ceiling surplus land of Gunnam Sarada (present petitioner). After the exercise by the authorities under the O.L.R. Act, the modified confirmed statement as per Section 44 (3) of the O.L.R. Act was published on 18.04.1994. There is no dispute or assertion by any of the parties that only Ac.44.74 decimals of land is the ceiling surplus land of Gunnam Sarada now, or there has been change in the circumstances in the meantime since the publication of the modified confirmed statement on 18.04.1994. 4. There is no dispute or assertion by any of the parties that only Ac.44.74 decimals of land is the ceiling surplus land of Gunnam Sarada now, or there has been change in the circumstances in the meantime since the publication of the modified confirmed statement on 18.04.1994. 4. It is worthwhile to mention here that, learned counsel for the petitioner has emphatically submitted that, after the death of Gunnam Hanumanji (husband of the present petitioner), the present petitioner only was substituted in O.L.R. Case No.12 of 1974 as legal heir, and the sons and daughters of Gunnam Hanumanji were not included in the said O.L.R. Case, as they were said to be major and separated by family and mess as per the definition of Family Act and did not come within the purview of that. 5. So far as G. Ramayamma (mother-in-law of the present petitioner) is concerned, O.L.R. Case No.14 of 1974 was initiated against her. The subject matter of O.L.R. Case No.14 of 1974 is Ac.32.12 decimals of land. In the O.L.R. proceeding it was held by the Revenue Officer-cum-Tahsildar, Rayagada that G. Ramayamma was entitled to retain Ac.16.50 decimals of land out of Ac.32.12 decimals and the rest Ac.15.62 decimals of land is her ceiling surplus land. In respect of G. Ramayamma also the modified confirmed statement vide Annexure-1 was published. G. Ramayamma challenged the order of the learned Revenue Officer-cum-Tahsildar, Rayagada passed in O.L.R. Case No.14 of 1974 in different forums, so far as classification of land is concerned, and now the matter is subjudice before this Court in W.P. (C) No.21516 of 2011. It has not yet been decided by this Court as to whether the land of G. Ramayamma in O.L.R. Case No.14 of 1974 belongs to Class-IV category of land or Class-II category. If it is held that the land in question forming the subject matter of O.L.R. Case No.14 of 1974 is a species of Class-IV land, then the total acreage of Ac.32.11 decimals does not exceed ten standard acres, and no ceiling surplus land can be said to have been held by G. Ramayamma at any point of time. Be that as it may, that question can be settled by this Court while disposing of W.P. (C) No.21516 of 2011. 6. Be that as it may, that question can be settled by this Court while disposing of W.P. (C) No.21516 of 2011. 6. During pendency of the litigation regarding classification of land in different forums including this Court, G. Ramayamma by the year 1980 had sold almost all her retainable land of Ac.16.50 decimals to different purchasers, shown in Annexure-8 to the writ petition. A copy of the R.O.R., vide Annexure-5, reflects that G. Ramayamma is left with Ac.0.14 decimals of land only after such sale. G. Ramayamma was an old lady and she got those lands sold by executing a General Power of Attorney in favour of both the sons of the present petitioner Gunnam Sarada. They, as General Power of Attorney-holder, sold the retainable land of G. Ramayamma on her behalf. After the retainable lands of G. Ramayamma were sold, she executed a Will in 1982 in respect of her property. In the Will (Annexure-3), which is English translated copy of original Telugu version, G. Ramayamma has bequeathed all the rights, after her death, on G. Subbarao and G. Ramakrishna, both sons of G. Ramayamma, over her landed property. The Will has been executed in the year 1982 after sale of all her retainable land by G. Ramayamma to different purchasers, as enumerated in Annexure-8 in the year 1980. So, G. Ramayamma could not have bequeathed any Will of right to her grandsons, so far as the sold property is concerned. Therefore, the landed property in the Will means the properties which have been vested in the Government as ceiling surplus, and the litigation involving its classification is still pending in this Court. Such fact has also been mentioned in the Will itself very clearly. Therefore, according to the Will, G. Subbarao and G. Ramakrishna are the legal heirs of G. Ramayamma, so far as her landed property is concerned. 7. While matter stood thus, the Revenue Officer-cum-Tahsildar, Rayagada clubbed O.L.R. Case No.12 of 1974 and O.L.R. Case No.14 of 1974 together and initiated a new case, i.e. O.L.R. Case No.10 of 2002 in the name of G. Sarada (present petitioner). Learned Tahsildar in the Draft Statement showed the retainable land of Ac.16.50 decimals of land of G. Ramayamma as ceiling surplus land of the present petitioner G. Sarada. Learned Tahsildar in the Draft Statement showed the retainable land of Ac.16.50 decimals of land of G. Ramayamma as ceiling surplus land of the present petitioner G. Sarada. Learned Tahsildar held that the sons of the present petitioner are having acquired the land of G. Ramayamma through a Will, and the present petitioner being dependent on her two sons now, she has acquired the land of G. Ramayamma through her sons, who are residing with her in a common mess and property. 8. It is admitted fact that, the ceiling surplus lands of G. Ramayamma have already been distributed by the Government while the matter regarding classification of land was still pending and still it is pending in the High Court. Similarly, G. Ramayamma, during her lifetime, has sold all her retainable land to different purchasers, as shown in Annexure-8. Now, so far as the present petitioner is concerned, the retainable land of G. Ramayamma is shown as ceiling surplus land of the present petitioner, which have already been sold by G. Ramayamma herself. The basis of decision, as found from the impugned order, is that the learned Tahsilder has taken the land on succession from bottom to top instead of top to bottom. It was not legal on the part of the Revenue Officer-cum-Tahsildar, Rayagada to club O.L.R. Case No. 14 of 1974 and O.L.R. Case No. 12 of 1974 to initiate a fresh proceeding on assumption that the present petitioner, through her sons, has acquired the property of Ac.16.50 decimals in question from G. Ramayamma after her (G. Ramayamma’s) death, especially when there was separate ceiling proceeding in respect of the present petitioner and her sons. According to the Will, the right over the landed property of G. Ramayamma is to vest on the sons of the present petitioner and not on G. Sarada (present petitioner), though at her old age she is dependent on her sons and she is residing with them. From such fact alone, it cannot be held that all are living in a common mess and are not separate. 9. Taking into consideration all the aforesaid facts and especially the manner in which the proceeding has been initiated, the impugned order vide Annexure-4 is quashed. From such fact alone, it cannot be held that all are living in a common mess and are not separate. 9. Taking into consideration all the aforesaid facts and especially the manner in which the proceeding has been initiated, the impugned order vide Annexure-4 is quashed. It is however open for the Revenue Officer-cum-Tahsildar, Rayagada to re-initiate the proceeding, if found to be feasible and legal after disposal of W.P. (C) No. 21516 of 2011, against the persons who have taken benefit under the Will, vide Annexure-3. 10. The Writ Petition is accordingly disposed of.