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2018 DIGILAW 635 (ORI)

Purna Chandra Dash v. Upendra Prasad Nayak

2018-07-02

BISWANATH RATH

body2018
JUDGMENT Biswanath Rath, J. - This writ petition has been filed seeking quashment of the orders under Annexures-1 & 2 passed by the authorities under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. 2. Short background involved in the case is that the disputed land pertains to Major Settlement 303 Ac.0.27 and 304 Ac.0.19 of Mouza Muladihi. The case land originally belongs to one Kanhu Jena who died leaving behind his two sons namely Bhaskar (the father of the O.P. no.2) and Bhagirathi. In an amicable settlement, the disputed land was allotted to Bhaskar Jena. On 11.03.1980, Bhaskar Jena entered into an agreement with the petitioner (Purna Chandra Dash) to sell the disputed land and as a consequence, a written stamp-paper agreement was executed. Subsequently on 11.06.1982 Bhaskar executed the sale deed in favour of the petitioner and delivered the possession of land in question. Thus the petitioner became the full owner and in possession of the disputed land. It is further case of the petitioner that consequent upon the sale deed, the petitioner applied for mutation of the purchased land and the mutation was allowed vide Mutation Case No.2991 of 1984 and mutated R.O.R. of Khata No.186/28 was also issued in the name of the petitioner. The petitioner goes on regularly paying the rent and the Consolidation L.R. parcha was also prepared in the name of the petitioner considering his title and possession over the disputed land. While the matter stood thus, the opposite party no.1 filed Title Suit No.7/83-I against Bhaskar claiming that Bhaskar has entered into an agreement with him on 17.11.1981. Bhaskar appeared in the said suit filing written statement specifically stating about the agreement in favour of the petitioner executed on 11.03.1980 and subsequently, execution of the sale deed in favour of the petitioner on 11.06.1982. Besides in the written statement Bhaskar has also a clear statement to have cancelled the agreement favouring the opposite party no.1 by a registered document dated 2.12.1981 on the premises that the agreement involving the opposite party no.2 and opposite party no.1 was obtained fraudulently. However, subsequently, the opposite party no.1 in collusion with Bhaskar filed a compromise petition and a compromise decree was arrived in the suit whereafter the opposite party no.1 filed an Execution Case No.57/85. However, subsequently, the opposite party no.1 in collusion with Bhaskar filed a compromise petition and a compromise decree was arrived in the suit whereafter the opposite party no.1 filed an Execution Case No.57/85. Coming to know of which, the petitioner himself added as a party to the execution proceeding and challenged the decree on the premises that the decree involving opposite party nos.1 & 2 has been obtained fraudulently and that there has been no document executed favouring the opposite party no.1. In the meantime, the opposite party no.1 Upendra Prasad Nayak filed Objection Case No.211/99, which being rejected by the Consolidation Officer, the opposite party no.1 filed Appeal vide Appeal No.16/2001, which was illegally allowed. Being aggrieved by the appeal order the petitioner preferred Revision bearing Revision Case No.376 of 2001 on the file of Addl. Commissioner of Consolidation, which was dismissed by the revisional authority resulting filing of the present writ petition. 3. On the premises of specific averments Shri D.S. Mishra, learned counsel for the petitioner taking aid of the stand taken by Bhaskar in the written statement involving Title Suit No.7/83-I, contended that the appellate court as well as the revisional court have all failed in appreciating the materials available through the written statement and thereby have all arrived at the wrong and illegal impugned order. 4. Shri Mishra, also alleged that both the appellate and revisional authority have also failed in appreciating the materials and evidence available on record, the petitioner's document vide Ext.G, a decree involving O.S. No.104 of 1985, was also not appreciated in its proper spirit. Learned counsel for the petitioner further alleged that the order of the appellate authority also perverse being contrary to the findings made in the O.S. No.104 of 1985. The petitioner has filed an objection under Order 21, Rule 35 read with Section 151 of C.P.C. challenging the executability of the decree, which matter is pending by the time of filing of the writ petition. 5. Miss Mohanty, learned counsel appearing for the contesting opposite party no.1 taking this Court to the findings of both the court below i.e. the appellate court as well as the revisional court, submitted that for the discussions and findings arrived at there, there is no infirmity in either of the appellate order as well as in the revisional order requiring interference in either of the impugned orders. 6. 6. Learned State Counsel appearing for the Stateopposite parties has also supported the stand taken by Miss Mohanty and thus urged this Court not to interfere in the impugned orders and dismissing the writ petition. 7. Considering the rival contentions of the parties, this Court looking to the factual scenario available in the Objection Case no.211/99 filed U/s.9(3) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, finds, the basis of filing of the objection case by the opposite party no.1 is that Bhaskar has transferred the suit land in favour of two persons, such as, Upendra Prasad Nayak-opposite party no.1 vide R.S.D. No.2910 dated 17.11.1981 and Purna Chandra Dash vide R.S.D. No.3014 dated 11.06.1982. The objector i.e. the opposite party no.1 to establish his case filed plaint copy in O.S. No.136 of 1979 marked as Ext.1. The order involving O.S. No.136 of 1979 is marked as Ext.2, registered sale deed no.2910 dated 17.11.1981 as Ext.3, the judgment in O.S. No.7 of 1983 Ext.4, the order of the Munsif, Bhadrak in O.S. No.104 of 1985, show cause filed by Bhaskar in O.S. No.104 of 1985, the extract of the order in execution case no.57/85, extract of the order in Misc. Case No.30/87 passed by the Sub-judge, Bhadrak also as exhibits whereas the present petitioner being the opposite party therein filed a certified copy of the agreement by Bhaskar, Ext.A the cancellation deed by Bhaskar involving the objector opposite party no.1 hereinafter Ext.B, R.S.D. No.3014 dated 11.06.1982, Ext. C the order in Mutation Case No.2991 of 1984 Ext.D, the Mutation R.O.R. bearing Khata No.186/28, rent receipts certified copy involving the suit No.104 of 1985, rent receipts certified copy involving Suit No.104 of 1985 and the show cause filed by Bhaskar Jena in Case no.7 of 1983 and on whole discussions on the documents exhibited by both the parties, the Consolidation officer in appreciation of the materials came to the clear finding that the sale made in favour of Upendra Prasad Nayak is not valid. Further, taking into account the objection of Bhaskar Jena in Case no.7 of 1983, the Consolidation Officer again came to observe that for the clear objection of Bhaskar that there is admittedly a sale in favour of Purna Chandra Dash involving the disputed property, the sale in favour of Upendra Prasad Nayak is invalid. Further, taking into account the objection of Bhaskar Jena in Case no.7 of 1983, the Consolidation Officer again came to observe that for the clear objection of Bhaskar that there is admittedly a sale in favour of Purna Chandra Dash involving the disputed property, the sale in favour of Upendra Prasad Nayak is invalid. Further, taking into consideration the order passed in the Mutation Case and the decree passed in O.S. no.7 of 1983 confirming the possession of the petitioner and further, finding that the O.S. no.7 of 1983 is decreed in terms of the compromise, the decree cannot be executed for the pendency of the Execution Case no.87 of 1985. 8. As per Consolidation Officer's order petitioner not only resides over the disputed property but he also goes on paying the land revenue. Further, Amin report attached therein also established that the petitioner was in possession. Thus, the Consolidation Officer allowed the objection case vide Annexure-3. In appeal at the instance of the opposite party no.1, the appellate authority giving much stress on the compromise decree and keeping in view the pendency of Execution Case set aside the Consolidation Officer's order and thereby allowed the appeal. The Revision being preferred by the present petitioner vide R.C. No.376 of 2001 the Revisional Authority, this Court finds, simply dismissed the case of the parties in contest and dispose the revision only observing that the appellate authority has discussed the matter elaborately and rightly decided the case in favour of the opposite party no.1 and hence he did not find any merit in the revision. This Court here, observes that since the revision preferred by the petitioner was a statutory revision, the Revisional authority though a quasi Judicial Authority, yet was duty bound to attend to the grounds taken in the Revision petition particularly, when there is a reversal order involved therein. This Court, thus, while deprecating the manner of disposal of the revision and particularly keeping in view that the decree obtained by the opposite party no.1 was not only compromised one but also behind the back of the petitioner and that the petitioner had already intervened in the execution proceeding involving the compromise decree challenging the executability of the compromise decree, this Court feels it appropriate to direct the Revisional authority to re-decide the revision giving opportunity of hearing to both the sides. Since the execution proceeding involving the parties on the disputed property was pending by the time of filing of the writ petition, this Court permits the parties also to place reliance on the development, if any, taken place involving the Execution Case no.57/85. 9. In the circumstance, this Court while interfering in the revisional order at Annexure-1, sets-aside the same. As the matter needs re-adjudication, the parties are directed to appear before the Revisional authority on 23rd of July, 2018, with further materials, if any, and the revisional authority shall do well in disposing the revision afresh providing opportunity to both the sides. 10. The writ petition succeeds, but with an order of remand. No cost.