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2018 DIGILAW 642 (ORI)

Jhasketan Bhoi (dead) v. Krushna Bhoi (dead)

2018-07-06

S.K.MISHRA

body2018
JUDGMENT S.K. MISHRA, J. - The present writ application has been filed by the petitioners who are the decedents of late Krutartha assailing the judgment rendered by the learned Joint Commissioner, Settlement and Consolidation, Sambalpur in Consolidation Revision Case No. 78 of 1990 dismissing the petitioners’ revision under Section 36 of Orissa Consolidation of Holdings & Prevention of Fragmentation of Land Act, 1972, hereinafter referred to as OCH & PFL Act and confirming the order passed by the appellate authority as well as the Consolidation Officer. 2. The petitioners being the son and grandsons of late Kutratha lay claim over the land in Hamid Settlement Plot No. 2139 corresponding to M.S. Plot No. 2844 and 2845 under L.R. Holding No. 177 of village Jamurda. In the Land Register, the said plots were divided into 12 plots having been recorded in the name of sons of Trilochan Bhoi on rayati basis. H.S. Plot No. 1778 and 1846(P) corresponds to M.S. Plot Nos.2776, 2777,2250,2256 and 3176(P) and further corresponds to L.R. Plot Nos. 4766,4777,4748,3955,3956,3957,3958,3959,3985,3987,3991,3992,3994 and 3995, in total 14 plots. H.S. Plot No. 1847 corresponds to M.S. Plot No. 2255 and further corresponds to L.R. Plot No. 3951, 3953 and 3954, in total three plots. 3. It is the case of the petitioners that the landed properties in question were recorded in the name of Krutratha Bhoi and Chakra Bhoi in Hamid Settlement Record of Rights having Khata No. 19. They were in possession of the said land. After the death of Kutartha Bhoi and Chakra Bhoi. Hamid Khata No. 19 was mutated in the name of Dukha Bhoi wife of Krutartha, Dolamani Bhoi and Jhasketan Boi, sons of late Krutatha in the year 1942. In the Major Settlement operation the property in dispute corresponding to M.S. Khata No. 20 and M.S. Plot No. 232 were recorded in the name of Dolamani Bhoi and Jhasketan Bhoi sons of Krutatha Bhoi. The petitioners were also paying the land revenue for the disputed land. However, in the year 1972-73 the V.B. Register in respect of Holding No. 232, 205 the possession of the petitioners was recorded in respect of the disputed land. A ceiling case was initiated against Dolamani and Jhasketan and the property in dispute was allotted within their ceiling limit. The petitioners were also paying the land revenue for the disputed land. However, in the year 1972-73 the V.B. Register in respect of Holding No. 232, 205 the possession of the petitioners was recorded in respect of the disputed land. A ceiling case was initiated against Dolamani and Jhasketan and the property in dispute was allotted within their ceiling limit. The petitioners have also paid the land revenue for the disputed land up to the year 2009 and patta was issued to them. The petitioners therefore, claimed right, title, interest and possession over the land in question. Hence prayed at the consolidation stage to delete the note of forcible possession of the remarks column over the disputed land in favour of the opposite parties. 4. The opposite parties claimed that Arjun Bhoi and Baidyanath Bhoi, the ancestors of opposite parties had purchased Hamid Settlement Plot No. 2139, measuring an area Ac. 2.35 dec. from Krutartha and Chakra by way of unregistered sale deed for consideration of Rs. 80/-. The unregistered sale deed is dated 10.06.1925 is annexed as Ext. A. It is the further case of the opposite parties that on 04.08.1929 Chakra and Krutatha sold the plot No. 1778 and 1846 to Arjun Bhoi and Baidyanath Bhoi for Rs. 70/- by virtue of unregistered sale deed under Ext. B. It is further case of the opposite parties that by virtue of an unregistered sale deed of the year 1929, Chakra and Krutartha and Arjun sold plot No. 1847 for Rs. 50/-. This document is not forthcoming and it is claimed that the document has been damaged and lost. Their case is that the land sold to Arjun and Baidyanath was accompanied by delivery of possession. As all the sales were made for a considerations of less than Rs. 100/-, no registration was necessary for lesser valuation of Rs. 100/-. It is the further case of the opposite parties that after the death of Arjun, his two sons possessed the same separately by virtue of amicable partition, but the said lands have been recorded in the name of heirs of Chakra and Krutartha with note of possession in favour of the opposite parties. 5. 100/-. It is the further case of the opposite parties that after the death of Arjun, his two sons possessed the same separately by virtue of amicable partition, but the said lands have been recorded in the name of heirs of Chakra and Krutartha with note of possession in favour of the opposite parties. 5. When the Consolidation operation started Objection Case No. 1906/103 along with 9 other objection cases were filed by the recorded tenants of L.R. Khata No. 177 under Section 9(3) of OCH & PFL Act before the learned Consolidation Officer for partition with a prayer to record the said land separately in Khata Nos. 136 and 137. Objection Case No. 2199/392 was filed by the petitioners under Section 9(3) of OCH & PFL Act to delete the names of the opposite parties in L.R. Khata No. 136 and to record the same in their favour. Objection case No. 2174/36 field by Dolamani and Jhasketan Bhoi and others to record their names in respect of Khata No. 177. 6. In order to properly appreciate the case of the parties, it is appropriate to take note of genealogy which is not disputed in this case. The genealogy showing relation of Krutartha and Chakra with the petitioners is given below. Late Gada Bhoi Late Krutartha Late Chakra (died on 1931) Dolamani (died on 1998) Jhasketan (Petr. No.1) Late Jangya (daughter)= Bimbadhar Ghanashyam (Petr. No. 2) Rahas (Petr. No. 3) Dibakar(Petr. No. 4) Gajraj Pradhan The genealogy of the opposite parties are as follows: Late Arjun Bhoi Late Baidyanath Late Trilochan Late Dhamu Dhanapati (dead OP.5) Purandar (OP.4) Krushna (OP.1) Narayan (OP.2) Sudam (OP.3) Late Benudhar Jhasketan (OP.12) Sundarmani (OP.11) Late Harihar Sribathsa (OP.7) Sibala l(OP.8) Debarchan (OP.9) Hrusikesh 7. Briefly stating the learned Consolidation Officer allowed the application filed by the opposite parties declaring their right, title, interest and possession over the disputed land disallowing the claim of the petitioners on the following grounds: i. The custody of Exts. A and B and the lost sale deed has been proved by Baidyanath in his evidence. ii. The learned Consolidation Officer has further held that the document was duly executed by Chakra and Krutartha. iii. The certified copy of V.B. Register for 1963-71 shows that the opposite parties were in possession over the disputed properties. iv. A and B and the lost sale deed has been proved by Baidyanath in his evidence. ii. The learned Consolidation Officer has further held that the document was duly executed by Chakra and Krutartha. iii. The certified copy of V.B. Register for 1963-71 shows that the opposite parties were in possession over the disputed properties. iv. The certified copy of the Mutation Register of the year 1927-28 clearly reflects the possession of Arjun. v. The note of possession over the disputed property is reflected in the Land Records. vi. From the oral evidence led, the Consolidation Officer to hold that the ancestors of the opposite parties were in possession of the disputed properties and after their death the opposite parties are in possession. vii. The petitioners were never in possession of the disputed properties. viii. Due to non-production of Exts. A and B, M.S. Record has been wrongly prepared in the names of the petitioners. ix. The rent receipt of the year 1976, 1977, water tax and cess from 1971 to 1977, 1977-78, 1980-81, 1981-82, 1982-83 are best piece of evidence of possession of the opposite parties. x. By virtue of Ext. A, B the opposite parties are possessing the disputed properties since the date of transfer till today. 8. These findings of the opposite parties have been confirmed by the appellate as well as revisional authority on the following proposition of law. a. Unregistered sale deeds (Ext. A and B) are 30 years old. The proper custody of the said documents have been proved under Section 90 of the Indian Evidence Act. b. Thus it is held that the recital of the documents are admissible in evidence under Section 32(2) of the Indian Evidence Act as it is a statement against the proprietary interest of a dead person. c. Documents of sale (Exts. A and B) clearly indicate the lands mentioned therein have been sold. d. Possession of opposite parties have been proved by the admitted boundary tenants. e. The findings and decision of the OLR authorities in ceiling proceeding have no evidentiary value where no surplus land has been declared. c. Documents of sale (Exts. A and B) clearly indicate the lands mentioned therein have been sold. d. Possession of opposite parties have been proved by the admitted boundary tenants. e. The findings and decision of the OLR authorities in ceiling proceeding have no evidentiary value where no surplus land has been declared. f. The petitioner No.1 has admitted in cross-examination that prior to 1970-71 i.e. prior to publication of MS ROR the persons who were actually growing Dalua crops were recorded in the “V.B. Register and after 1970-71, the V.B. Register maintained basing upon MS recorded tenants on the basis of cultivating possession. Thus, there is no evidentiary value of V.B. Register for 1970-71 produced by the petitioners. g. Loss of the sale deed of the year 1929 has been proved through evidence in terms of Section 65 of the Indian Evidence Act.” 9. In developing a strong case for the petitioners, Mr. N.K. Sahoo, learned counsel appearing for the petitioners raised the following contentions:- a. Two unregistered sale deeds have never seen the light of the day before production of the same before the learned Consolidation Officer. So, it is argued that the presumption under Section 90 of the Indian Evidence Act becomes very week. b. Hal Settlement ROR, M.S. ROR and entries in V.B. Register, Records the order passed by the Revenue Officer under OLR Act in a ceiling proceeding constitute sufficient rebuttal of presumption arising out of Section 90 of the Evidence Act. c. Ignoring all procedural law of appreciation of evidence and without considering the documents filed by the petitioners the C.O. relied upon two unregistered sale deeds. d. The learned Consolidation Officer has arrived at contradictory opinion that the opposite parties have acquired title by way of transfer as well as by way of adverse possession. e. The learned Consolidation Officer has come to the conclusion that in the objection filed by the decedents of Jhasketan that the decedents of Krutartha will inherit the properties and since coparcener, it is the Krutarth and Chakra are two brothers being the sons of Gada Bhoi and late Chakra died in the year 1931 leaving behind his only daughter Jagnya in the year 1931 the daughter has no right to property of Hindu living in jointness. So all the properties recorded in the name of Krutartha and Chakra would devolve, by way of survivorship upon the decedents of late Krutartha and the decedents of Chakra will not inherit the properties. Laying emphasis on the basis of the case Mr. Sahoo, learned counsel for the petitioners submits that there are contradictory findings in two sets of cases disposed of analogously on the same day. f. Portions of the land involved in Exts. A and B has been acquired by the State. The State has acquired Ac. 0.33 dec. of land and on 05.07.1954 compensation has been paid for acquisition of such land to the petitioners. g. No objection has been filed by the opposite parties before the Revenue authorities in ceiling proceeding (OLR Case No. 2876 of 1976) for which ceiling proceeding has been terminated including the disputed property in a ceiling holding of the present petitioners. h. In view of Section 51 of OCH & PFL Act the order passed by the Revenue authority under the OLR Act so also similar revenue law have binding effect on all other proceedings. Therefore, the learned counsel for the petitioners argues that as the Consolidation authorities in there different stages have not taken into consideration the documents which are admissible in evidence and has adopted a procedure in total ignorance of law of evidence, the writ Court should exercise its jurisdiction. In other words, the contention is that even if there are concurrent findings of different levels of Consolidation authorities, the jurisdiction under Articles 226 and 227 of the Constitution should be exercised and writ of certiorari should be issued quashing the orders as the findings recorded by the Consolidation authorities are not based on reasoning and in total ignorance of vital pieces of documents and evidences and also there is a procedural irregularities adopted by them while appreciating the material evidence available on record. 10. Ms. Sumitra Mohanty, learned counsel appearing for the opposite parties argues that the writ of certiorari under Article 226 of the Constitution and the power of superintendence under Article 227 of the Constitution should be exercised sparingly and it should not be exercised in cases were three different authorities have concurrent findings in favour of the opposite parties. Learned counsel for the lis pendence purchaser also supports the argument advanced by the learned counsel for the contesting opposite parties. 11. Learned counsel for the lis pendence purchaser also supports the argument advanced by the learned counsel for the contesting opposite parties. 11. Thus, on the basis of this factual backdrops and submission raised at the bar the following questions arise for consideration and adjudication in this case. i. Whether in this case the consolidation authorities have acted in a complete disregard of the law of evidence and have come to an erroneous conclusion which has resulted in complete failure of justice? ii. Whether Chakra and Krutartha have sold the land vide Exts. A and B and sale of the year 1929 to Arjun and Baidyanath? iii. Whether the ancestors of opposite parties were in possession and after that the opposite parties are in possession? iv. Which of the parties have right, title, interest and possession over the disputed land? 12. The scope and ambit of certiorari jurisdiction arose before the constitution bench of the Hon’ble Supreme Court in the case of Syed Yakoob-vrs. – K.S. Radhakrishnan and others reported in AIR 1964 S.C. 477 . In the constitutional Bench judgment the Hon’ble Supreme Court in a very clear terms laid down the question about the limits of jurisdiction of the High Court in issuing a writ of certiorari. Under Article 226 of the Constitution of India, a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or tribunal, these are cases where orders are passed by inferior Courts or tribunals without jurisdiction or is in excess of it, or as a result of failure to exercise jurisdiction. The Hon’ble Supreme Court further held that a writ can similarly be issued wherein exercise of jurisdiction conferred upon it, the Court or Tribunal acted illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. The Hon’ble Supreme Court further laid down that there is however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court can exercise it is not entitled to act as an appellate Court. The Hon’ble Supreme Court further laid down that there is however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court can exercise it is not entitled to act as an appellate Court. This limitation necessarily means that findings of facts reached by the inferior Court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ jurisdiction. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. 13. In this connection, this Court also takes into consideration the case of Surya Dev Rai vs. Ram Chandra Rai (2003) 6 SCC 675 , wherein the Hon’ble Supreme Court has examined the scope and ambit of certiorari jurisdiction and the supervisory jurisdiction under Article 227 of the Constitution. This Court is quite aware of the fact that the judgment passed by the Hon’ble Supreme Court in the case of Surya Dev Rai vs. Ram Chandra Rai (supra) has been overruled by larger Bench judgment of the Hon’ble Supreme Court in-part on a different count, in the case of Radhy Shyam and another Vs. Chhabi Nath and others, (2015) 5 SCC 423 . In the case of Surya Dev Rai vs. Ram Chandra Rai (supra), the Hon’ble Supreme Court has held that the writ application under Article 226 of the Constitution is also maintainable against the order passed by the Civil Court in a proceeding arising out of dispute between two private parties. The Hon’ble Supreme Court however further clarifies the distinction between the powers of High Court under Articles 226 and 227 of the Constitution. The Hon’ble Supreme Court however further clarifies the distinction between the powers of High Court under Articles 226 and 227 of the Constitution. Thereafter, the Hon’ble Supreme Court has laid down the law in what cases the writ of certiorari under Article 226 of the Constitution and supervisory jurisdiction under Article 227 of Constitution should be exercised. In larger Bench decision of Radhey Shyam and another vs. Chhabi Nath and others (supra), this aspect of limited scope of jurisdiction of the High Court in exercise of certiorari jurisdiction and supervisory jurisdiction has not been discussed or overruled. In fact, the Hon’ble Supreme Court in the case of Radhy Shyam and another vs. Chhabi Nath and others (supra) has partly followed the ratio decided in Surya Dev Rai vs. Ram Chander Rai regarding the distinction between the exercise of power under Article 226 of the Constitution for the purpose of issuing writ of certiorari and supervisory jurisdiction under article 227 of the Constitution. For the aforesaid reasons, this Court places reliance in the case of Surya Dev Rai vs. Ram Chander Rai (supra). After examining various judgments of Hon’ble Supreme Court, the Hon’ble Supreme Court in the case of Surya Dev Rai vs. Ram Chander Rai (supra) held that writ of certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to have acted (i) without jurisdiction –by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction-by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. The Hon’ble Supreme Court further held that Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. The Hon’ble Supreme Court further held that be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. The Hon’ble Supreme Court defines a patent error as an error which is self-evidence i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent. The Hon’ble Supreme Court held that the power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court. 14. In this case, it is apparent from the record that the learned Consolidation Officer has ignored the fact that in Hamid Settlement and in the settlement of the year 1947 the lands were recorded in the name of the petitioners after the death of the original recorded tenant in the year 1951 in a mutation proceeding the name of Dolamani and Jhasketan have been recorded with respect to the lands in question. The learned Court also ignored the fact that in a ceiling proceeding the lands were measured, possession was determined, proclamation was issued and the suit land involved in the case covered under the alleged three sale deeds are held to be the ceiling land of the petitioners’ family. These evidences have not been discussed by the learned Court below. The learned Court also ignored the fact that in a ceiling proceeding the lands were measured, possession was determined, proclamation was issued and the suit land involved in the case covered under the alleged three sale deeds are held to be the ceiling land of the petitioners’ family. These evidences have not been discussed by the learned Court below. No weightage has been given to it and simply on the basis of the two unregistered sale deed and on the basis of an alleged unregistered sale deed which was not produced (having been destroyed and secondary evidence relied upon), the V.B. Register and the evidence of one witness examined on behalf of the present opposite parties the findings have been recorded. So this Court is of the opinion that this is an appropriate case where a writ of certiorari should be invoked and the materials available on record should be examined. 15. The second question relates to the unregistered sale deeds Ext. A & B dated 10.06.1925, Ext.A, the unregistered sale deed of the year 1929 and another sale deed of the year 1927. I have very carefully examined the judgment rendered by the learned Consolidation Officer. After describing the facts and arguments advanced by both the parties at page 80 of the brief, the findings of the learned Consolidation Officer appears. He has come to the conclusion that the said land has been transferred by the ancestors of the opposite parties (present petitioners) to the ancestors of the objectors i.e., opposite parties in this case and the opposite parties are in possession of the suit land by virtue of the sale deeds and the ancestors of the opposite parties are also in possession since the year of transfer. While discussing the contents of Exts. A and B and the documents which have not been produced, the learned Court has come to the conclusion that these documents are more than 30 years old document at the time it was produced and the son of the scribe of the document has been examined and he has proved the handwriting of his father. It is no-doubt clear that Section 90 of the Indian Evidence Act if any document is produced from proper custody which is executed 30 years back then the document can be proved by production from proper custody. It is no-doubt clear that Section 90 of the Indian Evidence Act if any document is produced from proper custody which is executed 30 years back then the document can be proved by production from proper custody. But that does not mean that the contents of the documents are proved. The contents of the document has to be proved by cogent evidence. In this connection it is appropriate to take note of the provision of Section 90 of the Indian Evidence Act which is quoted below: S. 90. Where any document, purporting or provided to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person, is in that person’s handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation – Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom they would naturally be but no custody is improper if it is proved to have had legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to Section 81. Illustrations a. A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land, showing his title to it. The custody is proper. b. A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper. c. A, a connection of B, produces deeds relating to lands in ‘B’ possession which were deposited with him by B for safe custody. The custody is proper. The custody is proper. b. A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper. c. A, a connection of B, produces deeds relating to lands in ‘B’ possession which were deposited with him by B for safe custody. The custody is proper. Thus, a plain reading of the provision leads this Court to come to a conclusion that when a document is purportedly to be more than 30 years old, if it be produced from what the Court considers to be proper custody, it may be presumed (a) that the signature and every other part of such document, which purports to being the handwriting of any particular person, is in that person’s handwriting of any particular person, is in that person’s handwriting, and (b) that it was duly executed and attested by the person by whom it purports to be executed and attested. Thirty year old document, produced from proper custody, not looking ex facie suspicious, presumption could be drawn in favour of proper execution of the document. It is not necessary that the signatures of the attesting witnesses or of the scribe be proved if everything was proved there would be no need to presume anything. There can, however, be no presumption as to who is the person, who executed the document was and what authority he had to execute the document, and whether he had the requisite authority, or whether the contents of the document are true. In other words, the execution and attestation of the document is presumed, but the contents has to be proved by some way or other. Moreover it has to be produced from proper custody. Having examined the judgment rendered by the learned Consolidation Officer, which has been concurred by the appellate Court as well as the revisional Court, this Court finds that there is no whisper of any discussion regarding proper custody of the documents. The learned Court has only relied upon the document has come to the conclusion that there has been presumption that the sale of the land by the predecessor in interest of the petitioners. 16. The use of the word expression “may presume” means that the trial Court has a discretion either to presume a fact as proved or to call for proof of it. The presumption is discretionary and not obligatory. 16. The use of the word expression “may presume” means that the trial Court has a discretion either to presume a fact as proved or to call for proof of it. The presumption is discretionary and not obligatory. Even if the elements mentioned in the Section are satisfied, the Court may require the document to be proved in the ordinary manner. It is necessary for the Court to consider the evidence external or internal of the document in order to enable it to decide whether in any particular case it should or should not presume proper signature and execution. The Court may, but is not bound to, make the presumption merely because of the alleged age of the document. Thus, discretion should be more carefully exercised when the document was not produced before any authority after its execution for a long period. In other words, the documents executed between 1925 to 1929 did not see the light of the day for 62 years and for the first time in the year 1987 which was produced before the Consolidation authority. In such circumstances discretion should not be exercised in favour of the presumption of the documents, rather the Court should have exercised its jurisdiction to prove the actual contents of the same and proper execution of the executants. Be that as it may, the document having been not produced before any authority for about 62 years, having not seen the light of the day, a rebuttal presumption arises and rebuttal presumption in this case has been duly discharged by the petitioner by showing that they are in possession over the land in question. 17. An error of law apparent on the face of the record. It is true that Section 54 of Transfer of Property Act, 1882 which defines sale provides that any land or immovable properties can be sold without registration of the same, if the same is of the value of Rs. 100/- or less to which Indian Registration Act applies if the same is accompanied by delivery of possession. In the entire judgment passed by the consolidation authorities no finding has been given by any of the Courts that the sale was accompanied by delivery of possession. Their emphasis was on the execution of the document and the recital on the document has not been discussed in any of the judgments. In the entire judgment passed by the consolidation authorities no finding has been given by any of the Courts that the sale was accompanied by delivery of possession. Their emphasis was on the execution of the document and the recital on the document has not been discussed in any of the judgments. In the case of Parakhita Thappa –Vrs.- Nidhi Thappa and others reported in AIR 1954 Orissa 31 (DB), this Court has held that the plaintiff is certainly entitled to prove the factum of actual delivery of possession in spite of unregistered sale deed and unless there being such delivery of possession, the sale cannot be held to be complete. 18. The error committed by the Consolidation Officer and confirmed by the appellate Court and revisional authorities is patent error which is self evident. It has been demonstrated without involving any lengthy argument and long drawn process of reasoning. Hence this Court is inclined to interfere in the matter. Moreover, a gross failure of justice would occasion if the lands recorded in the names of ancestors of the petitioners in the Hamid Settlement, in the settlement of 1947, in Mutation proceedings of 1951, which has been held to be ceiling lands of the petitioners family in an OLR proceeding and for acquisition of portion of such land the petitioners have received compensation are allowed to be recorded in the names of opposite parties on the basis of three unregistered sale deeds, one of which has not been filed before the learned Consolidation Officer, which never saw the light of the day for almost 62 years. 19. Thus, in view of the aforesaid discussion this Court is of the opinion that the order passed by the learned Consolidation Officer confirmed by the learned Deputy Director, Consolidation and Holdings and the Commissioner, Land Records, cannot be sustained and, therefore the writ petition has to be allowed. In the result, the writ application is allowed on contest. Annexeure-1 to 3 are hereby quashed. The petitioners have right, title, interest and possession over the land in question as indicated in schedule to the writ application. The land records should be prepared and patta should be issued in favour of the petitioners by the Consolidation authorities. With such observation the writ petition is disposed of. There shall be no order as to cost. Petition disposed of.