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2019 DIGILAW 492 (ORI)

Bhaskar Narayan Mishra v. State of Odisha

2019-07-30

BISWANATH RATH

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JUDGMENT : Biswanath Rath, J. 1. This is a writ petition involving non-registration of sale deed by the Sub-Registrar, Hindol, opposite party No. 4 and involves the following prayer:- "It is, therefore, prayed by the petitioners that this Hon'ble Court may graciously be pleased to admit the writ application and issue RULE NISI calling upon the opposite parties to show cause as to why these petitioners cannot present and get the sale deed executed in respect of their appropriate share registered in accordance with law and on their failure to show cause or showing insufficient cause may further be pleased to quashing the letter of the opposite party No. 2 under Annexure-7 to the writ application as opposed to law and issue appropriate Writ(s)/Direction(s) to the opposite party No. 4 for accepting the sale deed for transfer of proportionate share in the joint holding for registration forthwith on presentation and may pass such other order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." 2. Short fact involving the case is 12 persons inclusive of persons belonging to General Caste and Scheduled Caste were applicants for allotment of a parcel of land before the Ex-Ruler of Ex-State, Hindol prior to coming into force of the Constitution of India, 1950. In due process of law all these twelve persons were jointly granted permanent lease in respect of an area of Ac. 98.42 in Nayabadi Khata No. 470 of 1946-47 out of Sabik Plot No. 1286/1366 measuring Ac. 1595.87 situated in village Khaliborei, P.S. Rasol. Jamabandi was also issued favouring these 12 persons. All these twelve persons were in occupation of the said land and in the meantime all of them were declared as Stitiban tenants involving the whole land allotted in their favour. During settlement operation 1969 Record of right was also prepared in respect of Ac. 98.180 decimals appertaining to Plot No. 1921 having an area of Ac. 36.130, Plot No. 2/2938 area Ac. 26.390, Plot No. 1388 area Ac. 7.350 and Plot No. 1924/2954, area Ac. 28.010 under Khata No. 119 of Mouza-Khalilborei, jointly in the name of original lessee and the legal heirs of the deceased lessee also died in the meantime. 98.180 decimals appertaining to Plot No. 1921 having an area of Ac. 36.130, Plot No. 2/2938 area Ac. 26.390, Plot No. 1388 area Ac. 7.350 and Plot No. 1924/2954, area Ac. 28.010 under Khata No. 119 of Mouza-Khalilborei, jointly in the name of original lessee and the legal heirs of the deceased lessee also died in the meantime. Involving Mutation Case No. 1705 of 2018 the lease hold land stood recorded in the names of original recorded tenants and involving legal heirs of deceased the recorded tenants. While the matter stood thus for the legal necessity legal heirs of lessee Jayakrushna Mishra one of 12 equal share "holders intended to sale their share of Ac. 8.18 out of total area and one Asish Swayam Prakash agreed to purchase the share of Jayakrushna Mishra through their legal heirs i.e. petitioners. Accordingly petitioners prepared the sale deed and placed the same-before the Sub-Registrar, Hindol for registration but however Registrar, Hindol blocked the registration, on the premises that for involvement of Scheduled Castes people in the Record of Rights, he will register the instrument only after getting clarification from Addl. District Magistrate-cum-District Registrar. On seeking instruction the Additional District Magistrate on the application of provision at Section 22 of the OLR Act, 1960 vide Annexure-5 the doubt in the mind of the Sub-Registrar, the Addl. District Magistrate-cum-District Registrar, Dhenkanal again sought for clarification from opposite party No. 2 on the application" of provisional of Section 22 of the OLR Act 1960 before registering the deed. In response to which the opposite party No. 2 wrote back to the Registrar that there is application of Section 22 of the OLR Act to the case at hand. Consequent upon receipt of communication vide Annexure-7 the Sub-Registrar involved declined to register the instrument in absence of compliance of provision of Section 22 of the OLR Act, 1960. Subsequent to communication vide Annexure-6 the giving rise to filing of writ petition at hand. 3. Assailing this action of the Sub-Registrar involved Sri S.K. Dash, learned counsel appearing for the petitioner submitted that for having equal share over the disputed property further for involvement of sale of share of a person belonging to general caste even though the Record of Rights stands in the name of persons including some Scheduled Castes, there is no prohibition in sale of his own share by the petitioner. For no involvement of Scheduled Caste persons share there is no question of application of provisions of Section 22 of the OLR Act 1960. Sri Dash thus contended that the Sub-Registrar as well as the I.G.R. all failed in understanding the distinction between sale of share and sale of land. Sri Dash also taken support of a decision of this Court in the case of Sitarani Rath vs. The Inspector General of Registration, Odisha and others, reported in 2015 (II) ILR-CUT-344, and sought for intervention of this Court in the impugned action of the Sub-Registrar and also declaring the correspondence vide Annexures-6 and 7 have no application to the case at hand. 4. Sri S.N. Mishra, learned Addl. Government Advocate in his opposition, while supporting the instructions vide Annexure-7 contended that for joint recording of land involving Scheduled Castes there is clear application of provision of Section 22 of the OLR Act 1960. It is in the above premises, Sri Mishra, learned counsel for the State sought for dismissal of the writ petition. 5. Taking into account the decision vide 2015 (II) ILR-CUT-344, this Court finds on the question as to whether a person is entitled to sell his share involving a joint holding property taking into account several decisions taken note thereof has come to hold that law does not prohibit sale of share of a person except possession thereof shall be dependant on partition of the property involved. 6. Now coming to deal with the question as to in the circumstances stated hereinabove and particularly for involvement of some of Scheduled Caste persons as joint holder of a common property whether sale of share by a person belonging to general caste provision of Section 22 of the OLR Act has application, this Court for the discussion of this Court vide 2015 (II) ILR-CUT-344 holds since the transaction involves sale of share of a joint record holding belonging to general caste further for no involvement of share of the Scheduled Caste persons involved therein there is no difficulty in sale of his share by the petitioner and there can not be application of provision of Section 22 of the OLR Act to the case at hand and as such both the correspondences vide Annexures-6 and 7 becomes inapplicable. 7. 7. In the circumstances, this Court interfering the impugned action this Court holds the instructions vide Annexure-7 not applicable to the case at hand This Court therefore directs the Sub-Registrar, Hindol, opposite party No. 4 to register the instrument at the instance of the petitioners presented before him by taking appropriate action within a period of seven days from the date of communication of this order. The writ petition succeeds. No costs.