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2016 DIGILAW 943 (ORI)

Balaram Mishra v. Digambar Badpanda

2016-10-17

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This writ petition has been filed challenging the impugned orders under Annexures-4 and 6 respectively passed by the opposite party nos. 2 and 4 in exercise of their power under the O.C.H. & P.F.L. Act, 1972. 2. Short background involved in the case is that the petitioner filed a petition under Section 9(3) of the O.C.H. & P.F.L. Act, 1972 bearing Objection Case No. 936 of 1982 for recording of suit land in his name exclusively on the ground that he has purchased the same from the private opposite party no.1. By order dated 23.8.1983 direction was given to keep the record intact in the name of Digambar Badpanda, the private opposite party no.1 thereby rejecting the claim of the objector and no appeal was preferred as against the said order. While the matter stood thus, the petitioner straightway filed a claim before the Consolidation Commissioner under Section 37 of the O.C.H. & P.F.L. Act, 1972 in Consolidation Revision No. 95 of 1990. Disposal of the Revision, the order of the Consolidation Officer dated 23.8.1983 was set aside and the case was remanded to the Consolidation Officer, Binka-Dunguripali for fresh disposal after verifying the records and affording reasonable opportunity to the parties in contest. Objector filed as many as 4 documents and the private opposite party no.1 also filed as many as 13 documents in support of their case. Three witnesses have been examined in the objection case. In order to prove his case, petitioner submitted that he has purchased the land from opposite party no.1 on the strength of Registered Sale Deed No. 2324 dated 26.12.1961 followed by delivery of possession and since that date he is in exclusive possession of the land. In O.L.R. Case No. 446 of 1975 considering the sale taken effect prior to 26.9.1970, the original court recognising the same directed to exclude the same from the Ceiling case of the opposite party and there cannot be any dispute on the disputed property involving the present petitioner. 3. The case of the private opposite party on the other hand is that the suit land corresponds to Bhogra land under Khata No.16 of third Settlement of Balupali village, vested with State on 2.2.1956 and the Collector, Bolangir settled the same along with other lands in the year 1962 in favour of the private opposite party vide Bhogra Case No.459 of 1962. There was sale of the suit land, depending on sale consideration, as admitted by the objector, who also executed a counter acknowledgement of this fact. However, the objector could not pay the consideration money and voluntarily gave up his interest by handing over the Registered Deed of Sale to the private opposite party no.1 and the Sale Deed was claimed to be not to have been acted upon at any point of time. It was also claimed by the private opposite party no.1 that the petitioner neither possessed the suit land nor paying rent, cess, dalua tax etc. It flatly denied the admissions in the ceiling case and claimed for maintaining Record-of-Right prepared during Consolidation Operation. 4. Considering the rival contentions of the parties contesting therein, several issues were framed, the Consolidation Officer ultimately came to hold that the Objector did not succeed in proving his case establishing his title over the suit land which on the other hand rests on the private opposite party no.1. Being aggrieved, the petitioner preferred an appeal which was registered as Consolidation Appeal No.29 of 1994. The appeal was allowed thereby reversing the finding of the Original Authority and directing for recording of the case land in favour of the appellant in the final consolidation scheme. Private opposite party preferred Consolidation Revision No.95 of 1990, a case under Section 36 of the O.C.H. & P.F.L. Act, 1972, which revision was allowed in favour of the private opposite party no.1 reversing the order passed by the appellate authority. 5. In assailing the impugned orders, under Annexures-4 and 6, learned counsel for the petitioner contended that the fact of the sale of the disputed property in the year 1961 having been admitted by the private opposite party no.1 in his statement in the year 1955 before the Authority taking up the Ceiling Proceeding and the sale deed having not been claimed to be invalid and the opposite party no.1 having not given his option to retain the disputed property with him, the decision of the Revenue Authority under the O.L.R. Ceiling Case becomes final and cannot be gone into by any other court. The Original Authority as well as the Revisional Authority have all failed to appreciate the above legal aspect. The Original Authority as well as the Revisional Authority have all failed to appreciate the above legal aspect. It is next contended that the findings of the Consolidation Officer as well as the Joint Commissioner that passing of title depends upon passing of consideration is an error of fact and law. From the reading of the sale deed under Annexure-3, it is apparent that there was passing of consideration and the opposite party nos. 2 and 4 have failed in understanding the matter properly. The sale deed since remain valid in compliance of the provision of Transfer of Property Act, the authorities in O.C.H. & P.F.L. Act, 1972 had no authority to declare the sale deed as invalid. For the existence of a sale deed, the authorities such as opposite party nos. 2 and 4 have all given emphasis on the unregistered documents, namely, the alleged acknowledgement deed claimed to have been executed by the petitioner for invalidating of sale deed, so called unregistered acknowledgement became innocuous. Effect of such document would not have taken away the effect of a registered sale deed, as the same is hit under Section 92 of the Indian Evidence Act. The authorities have also given much emphasis on the settlement of land in favour of the private opposite party no.1, through the Bhogra proceeding and consequently rent receipt also remain improper. 6. In their opposition, learned counsel appearing for the private opposite party as well as the counsel representing the State vehemently urged that there was in fact no sale in favour of the petitioner for no passing of the consideration money. For the purpose of entering into the unregistered deed of acknowledgement, the sale deed also otherwise remain invalid. For the settlement of the disputed land in favour of the private opposite party no.1 by virtue of Bhogra Proceeding, the effect of settlement in such proceeding cannot be taken away through the orders in some other cases. Further, since the opposite party no.1 became the owner of the land by virtue of a decision for settlement of land in a Bhogra Proceeding in the year 1962 (Bhogra Case No. 459 of 1962), the opposite party no1 had no right to sale the land in the year 1961. Further, since the opposite party no.1 became the owner of the land by virtue of a decision for settlement of land in a Bhogra Proceeding in the year 1962 (Bhogra Case No. 459 of 1962), the opposite party no1 had no right to sale the land in the year 1961. Therefore, under no circumstance, the petitioner’s right over the disputed land can be declared based on a sale deed entered into between the parties before the Vendor became the title holder of the property. In the above premises, both the learned counsel appearing for the different sets of opposite parties contended that there is no illegality in the impugned orders vide Annexures-4 and 6 leaving no scope for interfering in the same. 7. Considering the rival contentions of the parties, this Court on close scrutiny of records and pleadings of the parties finds there is no denial to the fact that the disputed land corresponds to Bhogra under Khata No.16 to third Settlement of Balupali village vested with the State on 2.9.1956 by virtue of a press note of the Collector, Bolangir settled the land in the year 1962 vide Bhogra Case No. 459 of 1962 in favour of the present opposite party no.1 along with some other lands. There is also no dispute with regard to the fact that the petitioner’s claim based on the sale deed, is a Registered Sale Deed No. 2324 executed on 26.12.1961. There is also an agreement between the parties on 26.12.1961 on the same day when the Registered Sale Deed was executed, there was also a Relinquishment Deed by Balaram Mishra, petitioner in favour of the private opposite party no.1-Digambar Badpanda. Thereafter, there is also a Deed of Acknowledgement of Relinquishment dated 2.6.1963 by the petitioner in favour of the opposite party no.1. There appears, there is also a possession certificate issued by the Tahasildar, Binka in favour of the private opposite party no.1. This apart, the evidence laid through the parties also thrown much light on the above aspect leaving no ray of doubt on the above documents. There appears, there is also a possession certificate issued by the Tahasildar, Binka in favour of the private opposite party no.1. This apart, the evidence laid through the parties also thrown much light on the above aspect leaving no ray of doubt on the above documents. From the pleadings of the parties and the discussions of the Original Authority, this Court finds, there has been lot of attempts at the instance of the opposite party no.1 involving present petitioner to keep the disputed property away from the Ceiling Proceeding, may be by the creation of the Sale Deed, even in absence of passing of consideration money, is an attempt in the above process. There is no doubt that the present opposite party no.1 got into his title over the disputed property only in the year 1962 by the outcome in Bhogra Case No. 459 of 1962. Therefore, under no circumstance, the opposite party no.1 had any right and title over the disputed property consequently no scope for entering into a Registered Sale Deed in the year 1961. It appears that the petitioner also visited a Civil Proceeding vide T.S. No. 8 of 1985 which got dismissed for default ultimately yielding no result in favour of the petitioner. From perusal of the impugned order vide Annexure-4 passed by the Original Authority, this Court finds the Consolidation Officer taking into the rival contentions of the parties contesting here not only framed several issues including some serious issues but has also made an emphatic attempt to deal with each and every aspect and rejected the claim of the petitioner after giving finding in respect of each of the issues framed therein. For the detail discussion and the observation made therein, this Court finds there is absolutely no scope to interfere in the observations, findings as well as in the ultimate decision of the Consolidation Officer. Coming to scan the order passed by the Appellate Authority, this Court finds the appellate authority had not at all weighed the findings of the Consolidation Officer in its proper perspective and had ignored the relevant facts and documents on the other hand merely on the basis of some stray observations given by the Commissioner of Consolidation in the Revision Case No. 95 of 1990 jumped to set aside the order of the Consolidation Officer. The Revisional Authority taking into consideration the whole aspect rightly came to observe that the original Authority having made a threadbare discussion of the whole issue and reached at just conclusion left no scope of interference in the original order. Now, so far the findings of the Appellate Authority is concerned, this Court finds the Revisional Authority rightly observed illegal reliance of some stray observations of the Commissioner of Consolidation in the previous instance of the revision proceeding. 8. For the concurrent finding of facts given by both the Original Authority as well as the Revisional Authority involved in the impugned orders under Annexures-4 & 6 and the order of the Appellate Authority remaining contrary to actual facts and material documents available on record, this Court finds no merit in the writ petition, which accordingly stands dismissed. Parties are directed to bear their own costs.