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2017 DIGILAW 1171 (ORI)

Padmabati Sahoo v. Collector, Keonjhar

2017-10-18

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. This case has a long chequered career. Originally the land under Hal Plot No.56 Area 0.24 decimals in Mouza-Madhapur, Samil Bhairabpur, Jail Road, Keonjhar was recorded in the name of Government. Government leased out the property in favour of one Narottam Parida in 1948. Narottam stayed with his family over the disputed property by constructing a house thereon. In the meantime, he died and his wife was residing thereon. An attempt was made by Government to evict the wife of Narottam Parida with an intention to construct a Government quarter thereon resulting Chandri Parida wife of Narottam Parida filed T.S. No.11/2002 claiming title over the suit property making the Collector as well as the Tahasildar as defendants. Suit bearing T.S. No.11/2002 was decreed with declaration of title over both the Plot Nos.55 & 56 measuring Ac.0.24 decimals as a whole following drawal of decree. On 14.5.2004 Chandri executed her last Will Deed bequeathing disputed property in favour of the present petitioner. Present petitioner filed a probate proceeding before the District Judge, Keonjhar to probate the Will Deed. Probate was granted on 17.8.2009 and the petitioner stayed thereon by re-constructing the house over both Plot Nos.55 & 56. Taking advantage of the recording of the plots in dispute in the name of Government the Tahasildar initiated an OPLE proceeding, vide OPLE Case No.66/15-16. Petitioner filed W.P.(C) No.13703/2015 challenging initiation of the proceeding. W.P.(C) No.13703/2015 got disposed of permitting the petitioner to contest the OPLE proceeding taking the grounds raised in the writ petition and which proceeding is still pending. In the meantime, petitioner filed another petition under Rule 34(c) read with Rule 35 of Survey & Settlement Rules, 1962 for correction of Record on the basis of judgment and decree passed in T.S. No.11/2002. Though the same was registered in the year 2016 but not disposed of as yet for the reason best known to the Tahasildar involved herein. In the meantime, OPP Case No.3/2015 a proceeding under the Orissa Public Premises (Eviction of Unauthorized Occupants) Act was initiated involving the same land as against the son of the petitioner. Petitioner sought for her intervention on production of judgment and decree in her favour involving the very same land and challenged the maintainability of the proceeding initiated against her son. Petitioner sought for her intervention on production of judgment and decree in her favour involving the very same land and challenged the maintainability of the proceeding initiated against her son. Estate Officer-cum-Sub Collector passed the final order directing eviction from the disputed property vide Plot No.56 and Plot No.57. Petitioner preferred an appeal and the appeal has been decided as against the petitioner by passing an order claimed to be behind her back. Petitioner also alleged that she has not been provided even with a copy of the order facilitating her to challenge the order in higher forum and in the meantime, petitioner has been forcibly evicted from her house and was kept in Government hospital till evening. 2. Assailing the impugned order, Sri N.K. Sahu, learned counsel for the petitioner submitted that for the order of the Hon’ble High Court dated 15.9.2016 passed in W.P.(C) No.16171/2016 it was incumbent on the part of the appellate authority to first pass order on maintainability of the proceeding for existence of a judgment and decree of Civil Court, involving T.S. No.11/2002. Sri Sahu alleged that the final order involving the matter has been passed in the appeal entering into merit is in sheer non-compliance of the direction of this Court in W.P.(C) No.16171/2016. Sri Sahu also contended that for the existence of a judgment and decree involving T.S. No.11/2002, the appellate order is otherwise bad in law for absolute non-consideration of the same. Further, as the appeal has been decided behind the back of the petitioner which is also otherwise not permissible in the eye of law. It is thus claimed that the order impugned suffers for non-compliance of principle of natural justice also. It is under the above circumstance, Sri Sahu, learned counsel for the petitioner prayed this Court for interference in the impugned order and setting aside the same. 3. Sri U.K. Sahoo, learned Additional Standing Counsel for the O.Ps.1 to 3 while opposing each submission of the learned counsel for the petitioner, referring to the plea taken in the counter affidavit and the documents appended therein submitted that there is no wrong in the decision of the appellate authority requiring no interference of this Court in the impugned order. 4. 4. Considering the rival contentions of counsel appearing for the respective parties, this Court finds, the claim of the petitioner confined on the basis of her right following through a lease by State in favour of Narottam Parida, a subsequent right to continue with the lease on Chandri Parida, the wife of said Narottam Parida. Civil Court decree declaring right over the disputed property is passed in favour of Chandri Parida, vide T.S. No. 11/2002, followed with creation of a Will by Chandri Parida in favour of the petitioner and confirmation of the Will in a probate proceeding, vide Test Case No.1 of 2008. The judgment and decree in T.S. No.11/2002, vide Annexures-1 & 2 establishes right of the owner, Chandri Parida involving schedule of property as follows: SCHEDULE Dist-Keonjhar, Dpt.Gandibeda, P.S.-Sadar, Mouza-Bhairabpur, Sabik Khata No.1/ana, Plot No.5,Area A0.20 dec. out of A0.58 decbounded by North-Rasta, South-Govt. quarter, East-Rasta, West-Govt. quarter which corresponds to Hal Mouza-Madhupur-Samil-Bhairabpur, Unit No. 8, Khata No.-123. Plot No. Kisam Area 55 Gharabari-II A0.060 dec. 56 Gharabari-II A0.140dec out of A0.2409 Total A0.200 dec. With a house standing thereon. The suit land and house valued at Rs.1,10,000/- The suit is valued at Rs.1,10,100/- 5. Judgment involving T.S.No.11 of 2002 with contest of the Collector has the following order: “That the suit be and the same is decreed on contest against Defendant No.1 and exparte against the rest with costs. Right, title and interest of the plaintiff over the suit land are hereby declared and her possession over the same is confirmed. Defendant No.1 is perpetually restrained from interfering in the peaceful possession of the Plaintiff in respect of the suit land. Pleaders’ fees at contested scale.” 6. Reading of the claim, the judgment and decree together leaves no doubt that Chandri Parida had right, title and interest over the disputed property involving plot nos.55 and 56-Gharabari-II, Ac.0.060 decimals and Ac.0.140 decimals, total Ac.0.200 decimals and that on contest of a Civil Case involving the State. Now coming to pursue the property involved in Test Case No.1 of 2008 involving Chandri Parida and present petitioner, this Court finds, not only the Will involved involves the above 20 decimals of property but with grant of probate of the Will involved therein also involves Chandri Parida, the right full owner of the above property. Now coming to pursue the property involved in Test Case No.1 of 2008 involving Chandri Parida and present petitioner, this Court finds, not only the Will involved involves the above 20 decimals of property but with grant of probate of the Will involved therein also involves Chandri Parida, the right full owner of the above property. Admittedly, a petition for change of record of right involving the same property is also pending with the Tahasildar. It also appears, an Encroachment Proceeding under the O.P.L.E. Act involving the petitioner again involving the same property is also pending but in response of Khata No.123, Plot No.16, Ac.0.240 decimals with indication of encroachment of Ac.0.040 decimals only. This proceeding makes it clear that the petitioner’s possession in respect of Ac.0.200 decimals not unauthorized as clearly borne from Annexure-5. Page 55 of the brief indicates a notice involving Encroachment Case No. 66/15-16. So far as O.P.P. Case No.03 of 2015 is concerned, it appears, a proceeding under the provisions of Orissa Public Premises (Eviction of Unauthorized Occupants) Act, 1972 has been initiated against the son of the petitioner on the allegation of his unauthorized occupation involving Government Quarter No. P.S.(K)-15 over plot No.56, Ac.0.067 decimals in Ac.0.013 decimals, total Ac.0.080 decimals vide Khata No.123 of village-Mednapur. The Original Proceeding having been disposed of against the son of the petitioner, namely, Kumar Sahoo, appeal by both being filed, petitioner’s Appeal has been registered as O.P.P. Appeal No.15 of 2016. The Appeal memorandum is find place at Annexure-10 series. Reading of the Appeal memorandum, this Court finds, the petitioner has disclosed all the developments taken place in the meanwhile. Perused the appeal proceeding up to the finality of the O.P.P. Appeal Case No. 15 of 2016. On perusal, this Court finds, on 28.1.2017 the matter was posted to 25.2.2017 for hearing on admission based on the direction of this Court given in W.P.(C). No. 16171 of 2016. On 25.2.2017 considering the application of the petitioner, the matter was posted to 18.3.2017 and the appeal has been dismissed for being devoid of merit on 18.3.2017. On perusal, this Court finds, on 28.1.2017 the matter was posted to 25.2.2017 for hearing on admission based on the direction of this Court given in W.P.(C). No. 16171 of 2016. On 25.2.2017 considering the application of the petitioner, the matter was posted to 18.3.2017 and the appeal has been dismissed for being devoid of merit on 18.3.2017. Coming to consider the allegation of the petitioner that petitioner being not informed of the date of posting of the case to 18.3.2017 resulting her non-appearance on 18.3.2017 and upon perusal of reasoning of the Appellate Court that the petitioner failed in producing any material to establish her case, this Court observes, not only the impugned order is an ex-parte one but there being such a voluminous appeal memorandum and with presence of all records involved therein in the lower court record involving the original proceeding, therein for availability of the L.C.R., it becomes unfair on the part of the person of the rank of Collector to hold that petitioner fails in producing any material to establish her case. The Collector concerned failed to appreciate that being an appellate authority, he/she was sitting over the appeal being a certiorari proceeding while he is required to decide the matter on the basis of information made available in appeal memorandum and the documents available through the lower court record. Thus, while observing that the Collector failed in exercising the power of appellate authority being conferred under the particular statute and the impugned order being an ex-parte one, this Court interfering in the impugned order vide Annexure-15 involving O.P.P. Appeal Case No.15 of 2016, sets aside the same and thereby remand the proceeding for fresh adjudication of the same involving the petitioner and taking into consideration the records produced by her on her appearance before the Collector on 6th of November, 2017. The Collector i.e. the Appellate Authority is directed to consider the application of the judgment and decree in the Civil Case as well as the judgment involving the Test Case indicated herein to the case at hand. 7. Now coming back to decide the prayer no.3 involving restoration of the possession of the petitioner, considering that petitioner enjoys her right, title and interest in respect of the schedule property quoted hereinabove confining to Ac.0.200 decimals vide Plot No.66 and Plot No.56, Khata No.123, if affected by virtue of the appellate order. 7. Now coming back to decide the prayer no.3 involving restoration of the possession of the petitioner, considering that petitioner enjoys her right, title and interest in respect of the schedule property quoted hereinabove confining to Ac.0.200 decimals vide Plot No.66 and Plot No.56, Khata No.123, if affected by virtue of the appellate order. Lord Uthwatt said in Winter Garden Theatre (London) Ltd. v. Millenium Products Ltd. (1947) (2) All England Report -331) held “In a court of equity wrongful acts are no passport to favour” and to do this, we should think, order that the plaintiff should be restrained to his room. The same principle was reaffirmed in the case of Warder v. Cooper, (1970) 1 All ER 1112 and also in the case of Esso Petroleum Ltd. v. King Wood Motors Ltd, (1973) 3 All E.R. 1057 being followed in a decision of Calcutta High Court in A.I.R. 1985 Calcutta 248. 8. For the observation of this Court involving the right of the petitioner over her claimed property by virtue of the Civil Court decree against the Collector himself and being not challenged in higher forum as yet, the manner in which the public officer in the rank of a Collector dealt with the mater, further taking an action of eviction unlawfully on 31.3.2017 that to while accepting the copy application from the petitioner on 21.3.2017 for supply of order dated 18.3.2017 and not granting the copy of order to the petitioner with clear intention not only to deprive the petitioner moving higher forum but to facilitate the eviction drive while taking the action not only arbitrary but also inhuman on the part of the Collector concerned, this Court directs the Collector to restore the possession of the petitioner in respect of the entire disputed property within 3 (three) days of the judgment of this Court to be communicated by the State Counsel and status quo in respect of the disputed property after it is being restored in favour of the petitioner to be maintained by all parties till 30 (thirty) days after fresh disposal of the appeal by the Collector. Petitioner is also directed to serve a copy of this order on the Collector. This Court while parting away, observes that this Court has not expressed anything on the ultimate merit of the appeal. Petitioner is also directed to serve a copy of this order on the Collector. This Court while parting away, observes that this Court has not expressed anything on the ultimate merit of the appeal. The appeal shall be decided on its own merit and taking into consideration the developments through Civil Court decree in T.S.No.11 of 2002 and the judgment involving the Test Case No.1 of 2008. Observation whatever made is made hereinabove only in the present context of the matter. 9. A free copy of this judgment be granted to the State Counsel for necessary communication to the Collector, the Appellate Authority. 10. Issue urgent certified copy of this judgment to the petitioner on proper application. 11. This Civil Miscellaneous Petition succeeds but to the extent indicated hereinabove. No cost.