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2016 DIGILAW 987 (ORI)

Dukhishyam Ghadei v. Commissioner, Consolidation & Settlement, Odisha

2016-10-28

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This writ petition has been filed assailing the impugned order dated 4.3.2014 passed in Appeal Case No.29/2013 by the Deputy Director, Consolidation, Kendrapara, and the order dated 18.12.2014 passed in Revision Case No.88/2014 by the Commissioner, Consolidation & Settlement, Cuttack, under Annexures-7 & 8 respectively. 2. Short background involved in this case is that the petitioner purchased a schedule land on 25.5.2007 from the recorded tenant after final consolidation R.O.R. belongs to one Khatrabasi Tripathy in the name of Prabhanjan Swain and Dibyendu Swain, present O.Ps. 4 & 5, who were by then minor sons of Dharanidhar Swain, O.P.6, vide registered sale deed no.1407 dated 3.3.1980. During consolidation operation, O.P.6 filed Objection Case No.103/80 under Section 9(3) of O.C.H. & P.F.L. Act with a prayer to record the schedule land in the name of O.Ps.4 & 5, which was allowed by the Consolidation Officer, vide his order dated 7.1.1981 (Annexure-2). Final consolidation R.O.R. was published on 23.4.2003 indicating the names of O.Ps.4 & 5, as land owners. It is after publication of the consolidation R.O.R. for the legal necessity, O.Ps.4 & 5 being major sold the suit land, vide R.S.D. No.1353 dated 25.5.2007 to the present petitioner and consequently, also delivered the possession, vide registered sale deed under Annexure-4. After the aforesaid purchase, the present petitioner filed Mutation Case No.1044/2007 for change in the name of the ownership involving the sale deed taken place under Annexure-4 and the Tahasildar, Kendrapara allowing the Mutation Case effected the change in the name of the ownership thereby fixing rent to be realized from the petitioner. It is alleged that O.P.6 being greedy in order harass the petitioner filed Consolidation Revision No.152/2007 five years after publication of the R.O.R. and the case was remanded to the Consolidation Officer, O.P.3 for considering the matter under Section 11 of the O.C.H. & P.F.L. Act. Unfortunately, in the said case the vendor was only impleaded and deliberately keeping the petitioner away from the proceeding even though the sale in favour of the present petitioner was already effected since 25.5.2007 and in spite of the order being passed in Mutation Case in favour of the petitioner. The Remand Revision Case No.152/2007 was disposed of by order dated 16.4.2013 (Annexure-6) thereby dismissing the Remand Revision Case. O.P.6. Being aggrieved by the aforesaid order, O.P.6 filed Consolidation Appeal Case No.29/2013 before the Deputy Director, O.P.2. The Remand Revision Case No.152/2007 was disposed of by order dated 16.4.2013 (Annexure-6) thereby dismissing the Remand Revision Case. O.P.6. Being aggrieved by the aforesaid order, O.P.6 filed Consolidation Appeal Case No.29/2013 before the Deputy Director, O.P.2. The present petitioner appeared in the proceeding. It is alleged that even though the case was initially posted to 21.3.2014 for hearing, it is on the basis of an advance petition being moved by O.P.5 with intention to see the disposal of the matter in absence of the present petitioner, such application was accepted and the matter was finally disposed of on 4.3.2014 behind the back of the petitioner thereby allowing the appeal upon setting aside the order passed in the Remand Revision Case. Being aggrieved by the order passed in the appeal, present petitioner filed Revision Case No.88/2014 and the Commissioner illegally dismissed the Revision, vide Annexure-8. 3. Assailing the impugned orders under Anexures-7 & 8, learned counsel for the petitioner, raised two grounds, such as:- Firstly, since the appeal was posted to 21.3.2014 for hearing by the order of the Deputy Director dated 20.12.2013, pre-ponement of the matter on the basis of an application being moved by O.P.5 and decided the matter on a pre-poned date that too behind the back of the petitioner, the order passed by the appellate authority becomes bad. Secondly, so far as the revisional order is concerned, the petitioner contended that the fact that the property was purchased in the names of O.Ps.4 & 5 may be at the instance of O.P.6 and the sale deed remaining absolutely silent with regard to source of spending the money involving the purchase belonging to O.Ps.4 & 5 or O.P.6, this aspect has been wrongly appreciated by the revisional court. Thirdly, the revisional order is also otherwise bad for getting into the question with regard to the validity of the sale deed for the objection being raised by O.P.6. Thirdly, the revisional order is also otherwise bad for getting into the question with regard to the validity of the sale deed for the objection being raised by O.P.6. It is also contended by the learned counsel for the petitioner that since the sale by virtue of the registered sale deed and the sale deed did not contain the statement as to whether the sale is from the financial source of O.P.6, the dispute with regard to O.P.6 still continuing to be the owner of the disputed property should have been left open to be adjudicated in a Civil Court, as the Consolidation Authority has no jurisdiction to enter into any such issue. 4. Coming to the allegation of the learned counsel for the petitioner before the revisional authority to the effect that hearing of the appeal was pre-poned and the appeal has been decided on an advance date without notice to the present petitioner and for which the appellate order cannot be sustained, and reading of the whole judgment involving the revision under Annexure-8, this Court finds, for the opportunity given to the parties involved in the revision even assuming that the appeal was decided behind the back of the petitioner, this Court finds, there is no scope for remitting the matter back to the appellate court and the writ petition can be decided entering into the merit involved in the revision, for which this Court proceeds in the matter to find out whether the orders passed under Annexures-7 & 8 are proper or not ? 5. Considering the rival contentions of the parties, this Court finds, there is no dispute that the disputed properties were at some stage purchased in the names of O.Ps.4 & 5 being minors at the instance of O.P.6. Perused the sale deed, which was also available for consideration of the appellate authority as well as the revisional authority and for hearing presently available at Annexure-4. Entire reading of the sale deed, this Court nowhere finds any statement coming forth as to if O.P.6 has purchased the suit property in favour of O.Ps.4 & 5 involving source of money through O.P.6. Entire reading of the sale deed, this Court nowhere finds any statement coming forth as to if O.P.6 has purchased the suit property in favour of O.Ps.4 & 5 involving source of money through O.P.6. In absence of such a categorical statement, O.P.6 at a subsequent stage claiming that he remained the owner cannot be believed and in such situation, such issues should have been left open to be considered by the competent court of law and the Authorities under the O.C.H. & P.F.L. Act have no power to enter into such dispute. This Court observes that so long as the sale deed exists, O.Ps.4 & 5 are the absolute owners of the disputed property and the Consolidation Authority having limited jurisdiction under the O.C.H. & P.F.L. Act are bound by the registered sale deed. 6. During course of argument, learned counsel for O.P.6, resisting the contention of the learned counsel for the petitioner, took support of a decision of this Court in the case of Bhramar Pradhan vrs. Govinda Mahapatra & Others, reported in AIR 1983 ORISSA 36 and referring to the observations made by this Court in paragraph-8 thereof, contended that for the ratio decided therein, the claim of O.P.6 that he was the owner of the disputed property was legally justified, considering the submission of Sri Mishra, learned counsel for O.P.6, on perusal of the judgment cited at Bar, this Court finds, the dispute involved in the judgment (supra) was involving a civil dispute for declaration of a title and for confirmation as well as recovery of possession of the suit land based on a sale deed. This being not the facts scenario in the case at hand, this Court finds, the judgment relied upon by O.P.6 is wholly inapplicable to the present case. 7. Perusing the impugned orders, vide Annexures-7 & 8, this Court finds, both the courts wrongly entered into the arena of dispute with regard to the ownership of O.P.6 on the basis of the sale deed vide Anexure-4 and such consideration is without competence of the authorities below. This Court has already observed that so long as the right of O.P.6 over the disputed property involving the sale deed vide Annexure-4 is not adjudicated upon by a competent Civil Court of law, the registered sale deed, vide Anenxure-4 remains binding not only on the parties therein but also on the Consolidation Authorities. 8. This Court has already observed that so long as the right of O.P.6 over the disputed property involving the sale deed vide Annexure-4 is not adjudicated upon by a competent Civil Court of law, the registered sale deed, vide Anenxure-4 remains binding not only on the parties therein but also on the Consolidation Authorities. 8. Under the circumstances and the reasons assigned herein above, this Court finds, both the orders under Annexures-7 & 8 become bad in law, and therefore, while setting aside the said orders involved in Annexures-7 & 8, this Court allows the writ petition and confirms the order passed in Remand Revision Case No.152/2007 appearing at Anexure-6. Parties to bear their respective costs.