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2016 DIGILAW 944 (ORI)

Sk. Mobarak Box v. Khane Khoda Masjid Saheb

2016-10-17

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This writ petition is filed by Sk. Mobarak Bux assailing impugned orders vide Annexures-2, 4 and 7. 2. Short back ground involved in the case is that Sabik Khata No.336, Sabik Plot No.3113 originally contained Ac.0.72 decimals of land in the category of Bajyapati Stitiban originally recorded in the name of Sk.Morad Box. Sk. Morad Box transferred Ac.0.04 decimals of land from out of Sabik Plot No.3113 in favour of one Sk.Ramjan vide Registered Sale Deed No.4721 dated 24.10.1951. Subsequently, Sk.Ramjan transferred Ac.0.02 decimals of land from out of above Ac.0.04 decimals in favour of Sk. Muksad vide Registered Sale Deed No.7291 dated 2.2.1970 from the western side of the land. Vide Registered Sale Deed No.574 dated 15.2.1978 petitioner purchased Ac.0.02 decimals of land from Sk.Ramjan. While the matter stood thus, vide Registered Sale Deed No.1310 dated 15.5.1979 Sk. Ramjan sold Ac.0.02 decimals of land to opposite party no.1. Thereafter Sk.Muksad transferred his purchased land Ac.0.02 decimals from the western side to Khane Khoda Masjid Saheb-the opposite party no.1, vide Registered Sale Deed No.276 dated 2.2.1980. During Consolidation operation, when Khane Khoda Masjid Sahebopposite party no.1 was recorded with Ac.0.03 decimals of land, petitioner filed Objection Case No.752 of 1992 under Section 18(2) of the Act to record an area of Ac.0.02 decimals out of PCS Plot No.2577, Ac.0.03 decimals on the strength of Registered Sale Deed No.574 dated 15.7.1978. Consolidation Officer partly allowed the case and directed to record Ac.0.01 decimal in favour of petitioner and Ac.0.02 decimals in favour of opposite party no.1. Present petitioner being aggrieved by the order passed in the aforesaid Objection Cases filed an appeal under Section 12 of the Act,, which was registered as Appeal No.114 of 1983 on the file of Deputy Director, Consolidation. The Deputy Director, Consolidation in disposal of the appeal preferred against the order in the objection vide Annexure-1 partly allowed the appeal thereby finding the land held by the petitioner in actual possession of the petitioner directed for deleting the forcible possession noting against the appellant. It is at this stage, the petitioner filed another objection case i.e. Objection Case No.752 of 1990 under Section 18(2) of the Act with a prayer to record Ac.0.02 decimals of land from out of Plot No.2577 based on Registered Sale Deed dated 15.2.1978. It is at this stage, the petitioner filed another objection case i.e. Objection Case No.752 of 1990 under Section 18(2) of the Act with a prayer to record Ac.0.02 decimals of land from out of Plot No.2577 based on Registered Sale Deed dated 15.2.1978. Disposing the said objection case, the Consolidation Officer directed to record Ac.0.01 decimal of land in favour of the petitioner and the rest Ac.0.02 decimals of land in favour of Khane Khoda Masjid Sahebopposite party no.1. Challenging the order of the Consolidation Officer, petitioner filed Consolidation Revision No.1310 of 1991 under section 37(1) of the Act. Similarly, opposite party no.1 also filed Revision Case No.1139 of 1992 a revision under Section 37 (1) of the Act seeking enhancement of the area from Ac.0.02 decimals to Ac.0.04 decimals. Revision filed by the petitioner i.e. Revision Case No.1310 of 1991 was dismissed vide order under Annexure-4. Materials established that the order under Annexure-4 was never challenged and as it appears, the same has attained finality. Suppressing the order passed under Annexure-4, present petitioner filed Revision Case No.5597 of 2002, a revision under Section 37(2) of the Act, which revision being allowed, matter was remanded vide Annexure-5 on 28.11.2003. Hearing the remand Revision, Consolidation Officer vide his order dated 28.11.2003 enhanced the area of the petitioner from Ac.0.01 to Ac.0.02 decimals of land. As against the said order, Khane Khoda Masjid Saheb-opposite party no.1 filed Appeal Case No.4 of 2004. This appeal was dismissed resulting a revision (Revision Case No.55 of 2007) before the Commissioner being preferred at the instance of the opposite party no.1. The Commissioner after hearing both the revision cases i.e. Revision Case Nos.55 of 2007 and 1139 of 1992 both at the instance of private opposite party no.1 while allowing the Revision Case No.55 of 20007 holding that the order of the Consolidation Officer as well as the appellate authority are all set aside, being passed without jurisdiction, passed an order of remand in Revision Case No.1139 of 1992 directing the Consolidation Officer to pass a fresh order in exercise of power under Section 11 of the Act, after verifying the relevant documents and upon conducting due field inquiry. This order was passed on 27.1.2007 as appearing at Annexure-7. Petitioner by filing the present writ petition assailed the order under Annexure-7 along with the orders under Annexures-2 and 4 also. 3. This order was passed on 27.1.2007 as appearing at Annexure-7. Petitioner by filing the present writ petition assailed the order under Annexure-7 along with the orders under Annexures-2 and 4 also. 3. In assailing the impugned orders, Sri P.K.Mohanty, learned Senior Counsel appearing for the petitioner contended that the order of remand is passed firstly on non-consideration of the materials available on record, secondly considering the materials beyond record and thirdly passing an order without appropriate consideration of the rival contentions of the parties. It is also contended that the revisional authority has even failed in appreciating the delay in filing the revision of the petitioner. 4. Sri B.P. Satpathy, learned counsel appearing for the private opposite partyno.1 in opposition to the contentions raised by Sri Mohanty, submitted that the Revision Case No.1310 of 1991 filed by the present petitioner against the order passed by the Consolidation Officer under Annexure-2 was dismissed by the Commissioner under Annexure-4 and this order was never challenged for which the order passed in Revision Case No.1310 of 1991 attained finality. In suppression of the development in the above revision, petitioner filed Revision Case No.5597 of 2001 under Section 37(2) of the Act, which revision was allowed by the order of remand under Annexure-5. The orders passed by the Consolidation Officer and the appellate authority since obtained on filing of a revision on suppression of the fact of the development vide Annexure-4 were all invalid and therefore, the petitioner was constrained to file Revision Case No.55 of 2007 and this Revision Case No.55 of 2007 has been rightly allowed under Annexure-7 with a cogent finding that both the proceedings before the Consolidation Officer as well as the appellate authority were not maintainable. Further, looking to the whole background of the case, the Commissioner vide a reasoned order remanded the Revision No.1139 of 1992 for fresh consideration of the entire issue. For the reasons assigned therein, there is no wrong committed by the Revisional Authority in passing the order under Annexure-7 so far it relates to Revision Case No.1139 of 1992 and it is under the circumstance, Sri Satpathy, learned counsel for the opposite party no.1 prays for dismissal of the writ petition. 5. For the reasons assigned therein, there is no wrong committed by the Revisional Authority in passing the order under Annexure-7 so far it relates to Revision Case No.1139 of 1992 and it is under the circumstance, Sri Satpathy, learned counsel for the opposite party no.1 prays for dismissal of the writ petition. 5. Leaving apart, the admitted facts dealing with four sale deeds, indicated in paragraphs-3 and 4 of the writ petition, this Court also does not find any dispute regarding the different proceedings at the instance of both the petitioner as well as opposite party no.1 at different point of time. This Court finds there is no dispute that the revision No.1310 of 1991 under Section 37(1) of the Act at the instance of the present petitioner was preferred challenging the order passed under Annexure-2, which revision was dismissed by the order under Annexure-4. Date of disposal of the revision appearing from Annexure-4 appears to be dated 10.10.1996. Admittedly, there was no writ petition as against this order until the present writ petition is filed in the year 2010 challenging the order under Annexures-2 and 4 for the first time in the year 2010, after a long gap of 14 years with unexplained delay. The present writ petition so far it relates to the impugned order under Annexures-2 and 4 since grossly barred by limitation cannot be entertained. This writ petition, so far as it relates to the impugned orders vide annexures-2 and 4 are concerned stands dismissed. 6. Now coming to the challenge of the petitioner to Annexure-7, the order of remand passed by the Revisional Authority so far it relates to Revision Case No.55 of 2007 and Revision Case No.1139 of 1992, considering the submission of learned counsel appearing for the respective parties and from the pleadings contained in the writ petition, this Court finds no cogent ground in challenging the order under Annexure-7, so far it relates to the Revision Case No.53 of 2007. Thus, this Court finds no scope in interfering in the impugned order under Annexure-7 so far it relates to Revision Case No.53 of 2007. Thus, this Court finds no scope in interfering in the impugned order under Annexure-7 so far it relates to Revision Case No.53 of 2007. Now, coming to challenge of the petitioner so far as the direction in the impugned order concerning Revision Petition No.1139 of 1992, this Court finds looking to the Sale deeds at different point of time and the purchase of specific land involved therein, the case involved in Revision Petition No.1139 of 1992 could not have been decided in absence of proper adjudication by the original authority and further in absence of proper verifications of the documents having appropriate field inquiry, the revisional authority did no wrong in directing fresh consideration of the dispute by the original authority itself. 7. Under the circumstance, this Court finds no scope for interfering with the impugned order under Annexure-7 also. Consequently, the writ petition stands dismissed entirely. Parties are directed to bear their respective costs.