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2017 DIGILAW 1100 (ORI)

KASINATH BEHERA v. COMMISSIONER OF CONSOLIDATION, BHUBANESWAR

2017-09-21

B.R.SARANGI, VINEET SARAN

body2017
JUDGMENT : B.R. Sarangi, J. - These two intra-Court appeals have been filed against the common judgment and order dated 18.06.2007 passed by the learned Single Judge in OJC No. 9404 of 1993 and OJC No. 1757 of 1995. As the facts and points of law involved in both the appeals are analogous, they were heard together and are being disposed of by this common judgment. 2. The factual matrix of the case, in a nutshell, is that the properties in dispute in both the appeals originally stood recorded in the name of Agani Biswal and Banchha Biswal in the 1928 settlement with 'stitiban' status. The said lands were part and parcel of intermediary estate of Emar Math of Puri. By two registered sale deeds dated 04.05.1935 and 07.03.1938, the said properties were sold by Agani and Banchha in favour of Sudam Behera and Khudei Behera. After demise of Sudam and Khudei, their legal representatives and successors remained in peaceful possession of the said properties. Some of those legal representatives alienated the said properties in favour of Kasinath and Manguli Behera (the deceased husband of respondent No. 6-Paramani Behera). After their purchase, Kasinath and Manguli possessed the said properties by constructing their residential houses and started residing there. 3. When the matter was thus stood, the intermediary, i.e. Mahant Maharaj of Emar Math, due to non-payment of rent in respect of the said properties, filed Rent Suits before the Rent Officer, Puri, which were registered as Rent Suits No. 1265 of 1959-60 and No. 1962 of 1959-60 for realization of arrear rents against Dharmu Behera and Bali Behera, the legal representatives and successors of the original tenants. Both the rent suits were decreed and thereafter Execution Cases No. 1180 of 1963-64 and No. 1231 of 1962-63 were initiated before the Rent Execution Officer, Puri. The present appellant filed two separate applications in those two execution cases under Section 228(2) of the Orissa Tenancy Act praying to set aside the aforesaid sales, which were allowed by orders dated 10.10.1968 and 16.09.1968. Consequentially, the sales were set aside, but then the Rent Execution Officer directed the appellant to deposit the entire rent decreed in the aforesaid two Rent Suits and in compliance with that direction, the appellant deposited the same on 03.01.1968. Consequentially, the sales were set aside, but then the Rent Execution Officer directed the appellant to deposit the entire rent decreed in the aforesaid two Rent Suits and in compliance with that direction, the appellant deposited the same on 03.01.1968. The appellant then applied for mutation of the disputed properties before the Tahasildar, Kakatpur, which was registered as Mutation Case No. 625 of 1984 and after observing all formalities, the Tahasildar recorded the disputed lands in the name of the appellant and corrected the ROR accordingly. 4. By virtue of the notification issued under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, the village where the lands were situated came under the consolidation operation. Before the Consolidation Officer, Gop, the contesting respondents filed two objection cases under Section 9(3) of the aforesaid Act, being numbered as 998 and 999 of 1989, with a prayer to record the disputed properties in their names on the basis of the registered sale deed dated 16.07.1984. The objection cases were resisted/opposed by the appellant on the ground that the sale deed relied upon by the contesting respondents had been set aside in rent suits. The contesting respondents contended that the order passed in the rent suits having been assailed in appeal, the appellate authority remanded the matter to the Rent Officer with direction to him to realize the decretal dues and since no amount was paid, the sale was confirmed by order dated 14.03.1973. Thereafter, the auction purchaser sold the disputed property to the contesting respondents by the aforesaid sale deed. The Consolidation Officer having rejected the said objection cases, the contesting respondents preferred appeals before the Deputy Director of Consolidation, registered as Consolidation Appeals No. 115 and No. 116 of 1990. The Deputy Director allowed the said appeals mainly on the ground that the properties were was sold in execution by the Rent Officer and that even after the remand no amount was deposited by the appellant and thus the sale stood confirmed. Being aggrieved by the orders of the appellate authority, the appellant preferred Consolidation Revisions No. 1124 and 1125 of 1991, which were dismissed by the common order passed on 20.05.1993 by the Consolidation Commissioner. Being aggrieved by the orders of the appellate authority, the appellant preferred Consolidation Revisions No. 1124 and 1125 of 1991, which were dismissed by the common order passed on 20.05.1993 by the Consolidation Commissioner. The said common order of the Consolidation Commissioner dated 20.05.1993 was challenged in two separate writ applications by the appellant in OJC No. 9404 of 1993 and OJC No. 1757 of 1995, which were also dismissed by the common judgment dated 18.06.2007 confirming the orders passed by the appellate authority as well as revisional authority. Hence these appeals. 5. Mr. P.K. Mohanty, learned Senior Counsel appearing for the appellant argued with vehemence that in the rent execution case the sale in question was set aside and the appellant had been directed to deposit the decretal amount, pursuant to which the amount in question having been deposited by the appellant, consequentially no title accrued to the auction purchaser. The contesting respondents having purchased the properties from the auction purchaser, they also do not acquire any right, title and interest over the properties in question. Therefore, he sought for setting aside of the judgment and order passed by the appellate authority, confirmed by the revisional authority and reaffirmed by the writ Court. 6. Mr. D. Mohapatra, learned counsel appearing for the contesting respondents, per contra contended that the predecessors of contesting respondents, having purchased the properties in dispute in a Court auction and the sale having been confirmed, the right accrued in their favour could not be ignored or taken away by subsequent order. The claim of the appellant in respect of an undivided estate could not be considered on the basis of any subsequent sale. The interest of the appellant and his co-sharers acquired in respect of undivided property has lost its force after the properties were put to sale in an execution case. The sale was conducted by the executing Court and the predecessors of the contesting respondents having deposited the decretal amount, possession of the disputed properties was delivered following court eviction and consequentially the sale has been effected in favour of the contesting respondents, and from the date of purchase they are continuing in possession thereof peacefully. 7. We have heard Mr. P.K. Mohanty, learned Senior Counsel appearing for the appellants; Mr. B.P. Pradhan, learned Addl. Government Advocate appearing for State respondents no. 1 to 3; and Mr. 7. We have heard Mr. P.K. Mohanty, learned Senior Counsel appearing for the appellants; Mr. B.P. Pradhan, learned Addl. Government Advocate appearing for State respondents no. 1 to 3; and Mr. D. Mohapatra, learned counsel appearing for contesting respondents. Pleadings having been exchanged between the parties, with their consent, the both the appeals have been disposed of finally at the stage of admission. 8. The facts delineated above are not being disputed by the parties. Having heard learned counsel for the parties and on perusal of the materials available on records, it reveals that the claim advanced by the appellant is based on the sale deed in which the vendor and vendee were the one and same person. Apart from the same, the contesting respondents acquired right, title and interest in the disputed properties pursuant to a court auction, sale is confirmed. The contesting respondents having deposited the decretal amount, possession of the disputed properties was delivered in their favour. Therefore, the consolidation authority had no jurisdiction to either set aside the sale deed or direct the contrary to the order passed in the execution case. On perusal of the judgments and orders passed by the appellate authority as well as revisional authority, which have been confirmed by the writ Court in the aforementioned writ applications, it is observed that the fact finding Court discussed the evidence in extenso. Once the fact finding Courts have given a concurrent finding, the writ Court is well justified not to interfere with the same, as the said finding is based on relevant consideration and is not shown to be perverse. 9. In Khazan Singh v. Hukum Singh, AIR 1977 SC 2032 : (1977) 3 SCC 351 , the apex Court held that the High Court in a writ petition cannot interfere with the finding of facts so long as that finding is based on relevant consideration and is not shown to be perverse. 10. In Pioneer Traders v. Chief Controller, Import & Export, AIR 1963 SC 734 : 1963 Supp. (1) SCR 349, the apex Court held that finding of fact on the ground that the same was erroneous cannot be challenged in a writ petition. 11. In State of West Bengal v. Atul Krishna Shaw, AIR 1990 SC 2250 : 1991 Supp. 10. In Pioneer Traders v. Chief Controller, Import & Export, AIR 1963 SC 734 : 1963 Supp. (1) SCR 349, the apex Court held that finding of fact on the ground that the same was erroneous cannot be challenged in a writ petition. 11. In State of West Bengal v. Atul Krishna Shaw, AIR 1990 SC 2250 : 1991 Supp. (1) SSC 414, the apex Court held that no interference could be made by the High Court or Supreme Court on the question of findings of fact unless findings are based on no evidence or based on surmises and conjecture. 12. In absence of any such material or contrary law having been shown, the writ Court, having come to a definite finding that the judgments and orders of the appellate Court as well as the revisional authority do not suffer from any infirmity or illegality and conclusions arrived by them are neither absurd nor is there any error apparent on the face of record, declined to interfere with the matter in exercise of jurisdiction under Article 227 of the Constitution of India. As such, we do not find any illegality or irregularity in the impugned judgments and orders passed by the appellate authority as well as the revisional authority, which have been confirmed by the writ Court, so as to warrant our interference in the present appeals. 13. In the result therefore, both the appeals are dismissed being bereft of merits. No order to cost. Final Result : Dismissed