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2016 DIGILAW 910 (ORI)

Lochan Goud @ Karsel v. State of Orissa

2016-10-05

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. Filing the writ petition, the petitioners have assailed the order dated 27.11.1999 passed by the opposite party no.3 in Regulation Revision Case No. 2 of 1998 reversing the judgment dated 24.11.1997 passed by the opposite party no.2 in Misc. Case No.55 of 1982. 2. Facts as reveal are that a case under Section 3(2) of the Regulation II of 1956 was instituted against the petitioners on the premises of petitioners possessing the disputed land illegally and unauthorisedly. Subsequent to initiation of the proceeding, on 30.3.1984 the opposite party no.4 filed an amendment application stating therein that petitioners are illegally possessing the Plot No.813/1398 measuring an area of 20 decimals and Plot No.824, measuring an area of Ac.1.70 decimals totaling an area of Ac.1.90 decimals in Khata No.80 of village Banarai @ Tallimund, P.S.Bargaon, District-Sundargarh on the pretext of sale. It was the further case of the parties therein that land measuring Ac.1.90 decimals, indicated hereinabove, was mutated in the name of one Suban Kisan, the elder brother of the opposite party no.4 and as Suban Kisan died issue less, the entire land was mutated in the name of Gopi Kisan, the father of opposite party no.4. Out of his entire land of Ac.13.15 decimals, Ac.1.90 decimals was sold to one Parvati Dansana and the rest of the land remained with Gopi Kisan. During settlement operation, the remaining land was recorded in the name of Gopi Kisan and his children. In Rent Camp stage, the land measuring an area of Ac.0.20 decimals bearing Plot No.813/1398 and Ac.1.70 decimals bearing Plot No.824 were recorded in favour of the petitioners on the ground of purchase and possession. In the Objection Case, above two parcels of land were recorded in the name of petitioners in the Rent Camp stage on the premises of purchase. On the ground that opposite party no.4 being dispossessed, a case under the provision of Regulation II of 1956 was instituted. In the Objection Case, above two parcels of land were recorded in the name of petitioners in the Rent Camp stage on the premises of purchase. On the ground that opposite party no.4 being dispossessed, a case under the provision of Regulation II of 1956 was instituted. Petitioners appearing there disputed the claim of opposite party no.4 on the premises that the land possessed by the petitioners measuring Ac.1.90 decimals is their own acquired land and rightly land records are maintained disclosing their name as against the disputed land after conclusion of the Hal Settlement operation since 1977, which recordings have not been challenged either by way of appeal, revision or suit within time stipulation, hence the claim of opposite party no.4 cannot be accepted at this stage. Besides, it is also claimed that the petitioners have also get into possession of the disputed land for more than 20 years and they have thus acquired right and title by way of adverse possession and their claim also gets support on the Amin’s report obtained in the proceeding. Considering the rival contentions, the original authority found that there exist sale of the land to the petitioners and further after the recording of land in favour of petitioners in a settlement process, there is no litigation involving the same and further the petitioners were in possession for more than 12 years as on 1973, thus they have also otherwise perfected right over the disputed land vide Annexure-1. The opposite party no.4 being aggrieved, filed an appeal and it is alleged that the opposite party no.3 by the final judgment under Annexure-2 in wrong appreciation of the material and pleadings on record set aside the order passed in the proceeding under Regulation II of 1956. 3. In assailing the impugned order, learned counsel for the petitioners contended that the observation of the appellate authority lacks sufficient evidence to come to a conclusion that the petitioners have perfected right by way of adverse possession for more than 12 years by 1973 is contrary to the materials available on record. Further, for the opposite party no.4’s clear evidence that the final Record-of-Right has been issued in favour of the petitioners and a statement in cross-examination that he had no objection to such entries made in the final Record-of-Right have all not been properly appreciated by the appellate authority. Further, for the opposite party no.4’s clear evidence that the final Record-of-Right has been issued in favour of the petitioners and a statement in cross-examination that he had no objection to such entries made in the final Record-of-Right have all not been properly appreciated by the appellate authority. Further, in the objection case filed by Benu Kisan, the brother of opposite party no.4 expressed his no objection in the Settlement Camp Court and the order was passed in presence of the petitioner no.2 and the father of the opposite party no.4. Further, in the field inquiry also the father of opposite party no.4 did not raised any objection to the recording of the suit land in favour of the petitioners. Thus, the ground raised by opposite party no.4 that he could not challenge the order in the objection case for no service of the proceeding on him has no foundation. It is on these premises, learned counsel for the petitioners contended that there has been no proper appreciation of the materials available on record by the appellate authority and under the circumstances, the order of the appellate authority cannot be sustained. 4. Learned State Counsel supporting the order of the appellate authority submitted that there is no illegality in the observations and the findings of the appellate authority, consequently leaving no scope for interfering in the order. In spite of service of notice on the private opposite party no.4, the opposite party no.4 chose to remain absent. This matter is decided based on the argument of the parties participating and on perusal of the materials available on record. 5. From the pleadings and arguments of the parties, this Court finds the dispute involves Ac.0.20 decimals of land from Plot No.813/1398 and Ac.1.70 decimals from Plot No.824 totaling an area of Ac.1.90 decimals under Khata No.80 of village Banarai @ Tallimund, P.S.Bargaon, District-Sundargarh. This land appears to be mutated in the name of Suban Kisan, the elder brother of opposite party no.4, who died issueless and the father of petitioner has the sole inheritance. Aforesaid land was mutated in favour of the father of the opposite party no.4. This disputed land was sold to one Parvati Dansana and the rest of the land from out of total land of Ac.13.15 decimals remained with the father of the opposite party no.4. Aforesaid land was mutated in favour of the father of the opposite party no.4. This disputed land was sold to one Parvati Dansana and the rest of the land from out of total land of Ac.13.15 decimals remained with the father of the opposite party no.4. It is on the basis of sale of the disputed land by the father of the opposite party no.4, this land was recorded in favour of the petitioners on the ground of purchase and possession. This matter was carried in objection case and in the objection case Benu Kisan, the brother of the present opposite party no.4, a joint owner of the property and being the legal heir of the Gopi Kisan, their father, expressed no objection in the Settlement Camp recording the name of the petitioner and the order in the objection case was passed in presence of petitioner no.2 and the father of opposite party no.4. Therefore, the opposite party no.4’s claim that he had no opportunity to know the development therein since running contrary to the submission by his own father and brother, his claim in the proceeding under Regulation II of 1956 had no merit and the said proceeding has been rightly disposed of considering the aforesaid aspects. Besides, this Court also observes that the recording of land in favour of the petitioners has also never been challenged by the opposite party no.4. So, for the reasons of success of the petitioners in the objection case and further non-challenge of the recording in the settlement proceeding by the opposite party no.4 till the present stage, this Court finds there was no scope for considering the case against the petitioners in the Regulation II proceeding. Further, since the objection case was decided in active participation of the father of opposite party no.4 and further the father of the opposite party no.4 consenting the recording of the name of the petitioners as against the disputed plot, the opposite party no.4 was precluded from taking any stand otherwise. Perusal of the judgment passed in the proceeding under Regulation II proceeding, this Court finds the original authority after taking all the above aspects into consideration has rejected the proceeding under Regulation II of 1956 at the instance of the opposite party no.4 leaving no scope for interfering the same. 6. Perusal of the judgment passed in the proceeding under Regulation II proceeding, this Court finds the original authority after taking all the above aspects into consideration has rejected the proceeding under Regulation II of 1956 at the instance of the opposite party no.4 leaving no scope for interfering the same. 6. Now considering the allegation of the petitioners in so far as the impugned order passed by the appellate authority is concerned, on close scrutiny of the order passed by the appellate authority, this Court finds the order of the appellate authority solely rested on the question of adverse possession in favour of the petitioner and on the premises of inconsistency in the evidence establishing a case of right in favour of the petitioners by way of adverse possession and thereby allowed the appeal. The appellate authority has not at all considered the case of the petitioners with regard to a valid transfer by the father of opposite party no.4 and the consent of the father of opposite party no.4 and brother of opposite party no.4 in the objection case. In absence of reversal of the findings with regard to valid transfer of the disputed property in favour of the petitioners by the lawful owner and the outcome in the objection proceeding favouring the petitioners, the order of the appellate authority cannot be sustained. 7. Under the circumstances, while interfering in the impugned order, this Court sets aside the order of the appellate authority under Annexure-2 and since re-determination of the dispute is required at the hand of the appellate authority, the appellate authority is directed to re-hear the proceeding and pass appropriate order giving opportunity of hearing to the respective parties. Since the petitioners are protected all through by way of interim direction, this Court extends the interim protection granted by this Court till the end of the proceeding before the appellate authority. 8. In the result, the writ petition stands allowed but with an order of remand and the aforesaid observation. However, there is no order as to cost.