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2016 DIGILAW 869 (ORI)

Ekadasia Panda v. Lalu Mahananda

2016-09-24

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. Filing this writ application, the petitioner has assailed the impugned orders, vide Annexures-4 & 5. 2. Short background involved in this case is that the petitioner has purchased the disputed property from his vendor, who had earlier purchased the property from the wife of late Dirju Dash being the sole owner of the property, family remaining issueless. When the petitioner was in enjoyment of the disputed property with absolute right, title and interest by virtue of the registered sale deed, O.Ps.1 to 6 filed Revenue Misc. Case No.19/89 before the Sub-Collector, Birmaharajpur under Section 23 of the O.L.R. Act alleging that they were the legal heirs of the original owner of the land and further, they being Scheduled Castes, there is no permission before transfer of the disputed land and the land should be resumed in their favour. The Revenue Misc. Case was heard and decided on contest between the parties and ultimately decided against the O.Ps.1 to 6 holding that neither the petitioners therein were the legal heirs of the original owner nor they belong to Scheduled Castes community to get protection of the provision under the O.L.R. Act. Challenging the dismissal of the Revenue Misc. Case, O.Ps.1 to 6 filed O.L.R. Appeal No.13/94 before the Additional District Magistrate, Sonepur and the said appeal was decided against the present petitioner reversing the order passed by the original authority following direction for restoration of the land in favour of the O.Ps.1 to 6. The appellate order being assailed by the present petitioner in the revision, the revision was finally decided, vide Annexure-5, dismissing at the instance of the present petitioners. 2. In assailing the revisional order under Annexure-5, learned counsel for the petitioner contended that once the original court decided the matter holding that O.Ps.1 to 6 are not the legal heirs of the original land owner, which has also been asserted following a judgment and decree passed in T.S. No.45/11/90, there was no question on the part of all the forums to enter into the question as to whether O.Ps.1 to 6 belong to Scheduled Castes or not ? In absence of reversal of the finding with regard to legal heirship of the O.Ps.1 to 6 through the original owner, the order passed by both the appellate court and revisional court have suffers, and therefore, a prayer is made for interfering with the orders passed by the appellate authority as well as the revisional authority under Annexures-4 & 5 and setting aside the same thereby further confirming the order of the original authority, vide Annexure-3. 3. In spite of appearance of a set of counsel for O.Ps.1 to 6, none appeared at the time of hearing. 4. Mr.Dash, learned Additional Standing Counsel for O.Ps.7 to 9, did not refute the submission made by the learned counsel for the petitioner. 5. Considering the submissions of the learned counsel appearing for the respective parties at the time of hearing of the matter, this Court finds that there is no denial to the fact that the original land owner was Dirju Dash, as clearly appearing from the Record of Right. There is also no denial to the aspect that there has been a transaction between the wife of the original land owner and the vendor of the petitioner at the first instance involving the disputed property and subsequently, the petitioner purchased the same property from his vendor, who had a valid purchased in his favour. 6. Taking into consideration the submissions of the learned counsel that the question as to whether O.Ps.1 to 6 were the legal heirs of the original vendor or not as has already gone into in T.S. No.45/11/90, this Court finds from the discussion in the order passed by the original authority, the original authority framed the particular issue, which reads as follows :- “Whether the petitioners are the legal heirs of the recorded tenant of the case land ?” This issue was decided on contest of the parties with a clear finding by the original court, which reads as follows :- “(1) The petitioners in this case are not the legal heirs of the R.T. of the case scheduled land as it has been established by the Addl. Munsif, Birmaharajpur in T.S. No.45/11 of 1990.” As per the finding recorded herein above, the original authority had a clear finding that Samari Dash, wife of late Dirju Dash being the only class one legal heir was having absolute right, title and interest over the disputed property. Munsif, Birmaharajpur in T.S. No.45/11 of 1990.” As per the finding recorded herein above, the original authority had a clear finding that Samari Dash, wife of late Dirju Dash being the only class one legal heir was having absolute right, title and interest over the disputed property. This Court is of the view that the pivotal issue framed herein above having gone against the petitioners therein, there was no need for the original authority to go into other issues as to if they were Scheduled Castes or not since irrelevant and the matter should have been dismissed on this point itself. 7. On perusal of the judgment passed by the appellate authority under Annexure-5, this Court finds, the said authority has not at all delved into the question of legal heirship of the appellants therein and there was neither any discussion nor is there any reversal of the finding by the original authority on the question of claim of legal heirship by the appellants therein, in absence of which, this Court finds, the appellate order cannot be sustained. Further from the perusal of the discussion of the revisional authority, this Court also finds, the revisional authority even though has taken note of a decree involving the claim of the present petitioner that O.Ps.1 to 6 are not the legal heirs of the original land owner, in deciding the matter against O.Ps.1 to 6 by virtue of disposal of T.S. No.45/11/90 but has not dealt with this aspect, on the other hand decided the matter only delving into the question as to whether the original owner of the property was Scheduled Caste or Scheduled Tribe ? There being a finding of the Civil Court holding that O.Ps.1 to 6 are not the legal heirs of the original land owner, the question as to whether the original owner belongs to Scheduled Caste or Scheduled Tribe at the instance of O.Ps.1 to 6, was irrelevant. 8. Under these circumstances, this Court finds, the orders passed by both the appellate authority as well as revisional authority are bad in law. Thus, while setting aside both the orders under Annexures-4 & 5, this Court confirms the order passed by the original authority passed under Annexure-3. The writ application stands allowed. Parties to bear their respective costs.