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2016 DIGILAW 788 (ORI)

Krushna Majhi v. Secretary, Revenue Department, Orissa

2016-09-13

BISWANATH RATH

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JUDGMENT : Biswanath Rath, J. This writ petition has been filed by the petitioner assailing the order passed by the Revisional Authority under Annexure-3 in deciding a matter under Section 23-A of the OLR Act. 2. In assailing the impugned order, learned counsel for the petitioner contended that in initiating a proceeding under Section 23A of the OLR Act, the father of the petitioner one Amar Singh Majhi being the land owner in respect of Plot No.292, 553, 563 & 558 had never sold the land to the opposite No.5. On the other hand, the opposite party No.5 was occupying the disputed land on the basis of a mortgaged deed in between the parties. On the basis of the above, learned counsel for the petitioner submitted that the Revisional Authority decided the claim of the petitioner appropriately and allowed the R.M.C No.24 of 1988 in his favour. This order was challenged by the opposite party No.5 in O.L.R. Appeal No.7 of 1990. The appeal was dismissed but the revision at the instance of the opposite party No.5 was allowed. 3. In assailing the order vide Annexure-3 passed in OLR Revision Case No.16 of 1990, learned counsel for the petitioner in referring to a document at Annexure-5 an order granting permission for sale of the disputed property, submitted that the permission whatever has been referred to by the Revisional Authority on the basis of document at Annexure-5 is all in respect of one Amar Majhi, S/o-Dokar Majhi. It is in this view of the matter, learned counsel for the petitioner submitted that Amarsingh Majhi being the S/o-Sankar Majhi, the permission whatever granted vide Annexure-4, is not in relation to his father and further in view of the provision under Section 23-A of the O.L.R. Act, 1960, a person is required to possess the land from more than 30 years on the date of initiation of proceeding. For the above, the finding of the Revisional Authority on the basis of adverse possession is also bad in law. In these premises, learned counsel for the petitioner prayed for interfering in the impugned order and setting aside the revisional order thereby restoring the order passed by the Original Authority vide Annexure-1. 5. For the above, the finding of the Revisional Authority on the basis of adverse possession is also bad in law. In these premises, learned counsel for the petitioner prayed for interfering in the impugned order and setting aside the revisional order thereby restoring the order passed by the Original Authority vide Annexure-1. 5. Learned counsel for the opposite party No.5 in his opposition, submitted that the plea of the petitioner that the opposite party No.5 came into possession over the land by virtue of a mortgage deed, is false one. The Case of the opposite party No.5 on the other hand, is that the father of the petitioner being the owner of the land described in page 10 of the brief, applied for permission for selling of the disputed land from the competent authority under Annexure-4 and the permission for sale of the whole land Ac.3.62 Decs. was granted by the competent authority in the R.M.C No.124/70 as at Annexure-5 and since the purchase is on the basis of a permission of the competent authority under Section 22 of the OLR Act, 1960 neither the sale nor the possession of the opposite party No.5 can be held to be illegal. 6. Learned State Counsel on the other hand, submitted that the revisional order being based on a valid permission of the competent authority is appropriate and leaves no scope to this Court to interfere in the same. 7. Leaving apart the admitted fact that the petitioner’s father and three others who are the joint owner of the disputed property and that the opposite party No.5 was in possession of the land at the time of initiation of the proceeding and since the permission has been granted in respect of the disputed property in disposal of a proceeding under Section 22 of the OLR Act, 1965 vide R.M.C. No.124/70, the original case at the instance of the petitioner was allowed whereas the appeal was dismissed and the revision has been allowed on reversal of the order of the original authority. On perusal of the records and on close scrutiny of Annexures-4 & 5, this Court finds this proceeding was initiated on the application of one Amar Majhi for permission of sale of the disputed land. On perusal of the records and on close scrutiny of Annexures-4 & 5, this Court finds this proceeding was initiated on the application of one Amar Majhi for permission of sale of the disputed land. This proceeding was concluded after observing some formalities and decided in absence of any objection received from any corner thereby granting permission in favour of Amar Singh to sale the lands to a non-Adibasi people at appropriate market price indicated therein. Further scrutiny of the records and the documents available in the brief, it discloses that the disputed land belongs to Chakara Majhi, Ganda Majhi, Amar Majhi all are son of Shankar Majhi and Gobal Majhi son of Bhobara Majhi for which, this Court finds it surprise as to when four person remaining as joint owner of the disputed property, how the application for sale of the disputed land entirely at the behest of one and the permission in favour of one person for sale of the entire disputed land is permissible. It is in this circumstance and as the permission was granted in favour of only one person in respect of property owned by four persons appearing under Annexures-4 & 5, this Court finds there is no consideration of this aspect by the Revisional Authority. No material even forth coming whether the application for permission for sale of land was as combined one or not. 8. Under the circumstances, this Court while interfering in the revisional order, remits the matter back to the revisional authority to re-determine the matter taking into consideration the validity of the permission under Annexures-4 & 5 and take a fresh decision in the matter but however, giving opportunity of hearing to all concerned. It is also open for the parties to file additional documents if any, to support their case in the Court below. In such event, the same shall also be taken into consideration. The entire exercise as directed hereinabove, be concluded within a period of six months from the date of appearance of the parties. Since the order is passed in presence of both the parties, both the parties are directed to appear before the revisional authority within a period of fifteen days hence with a certified copy of this order. 9. The writ petition stands disposed of with the above direction. Parties to bear their own cost.