Transport Corporation of India Ltd. v. State of Orissa
2019-11-13
BISWANATH RATH
body2019
DigiLaw.ai
JUDGMENT : Biswanath Rath, J. This writ petition involves a challenge to the orders passed involving R.P.No.255/2000 and R.P. No.557/2001 being filed by O.P.3 and the petitioner respectively. 2. Short background involving the case is that on 4.8.60 by executing of a lease deed O.P.3 got the lease of the disputed land for ninety years from O.P.1 in Sabik Khata No.378, Sabik Plot No.82 area 3356 sq.feet corresponding to Hal Khata No.154, Hal Plot No.579-Ac.0.076 decimals. O.P.3 as a consequence of lease obtained loan from the Ekamra Cooperative House Building Societies Ltd., Bhubaneswar. O.P.3 having defaulted to pay the accumulated loan with agreed interest, the Society filed Dispute Case No.591-68-69 under Section 68 of the Cooperative Societies Act. The Dispute Case was allowed. There was no Appeal at the instance of O.P.3. In the meantime, O.P.3 entered into a contract with one Ram Abatar Agrawal but for failure in performance of contract by O.P.3, Ram Abatar Agrawal filed T.S. No.89/74 for specific performance of contract and the Title Suit ultimately got dismissed. For clearance of the loan, the case land and house standing thereon were all put to public auction following the award in Dispute Case No.591/68-69 for Rs.54,200/-. Petitioner being the highest bidder, the sale was confirmed in his favour. As a consequence of confirmation of the sale, sale certificate was also granted in favour of the petitioner. Further a sale deed was also executed in favour of the petitioner. After completion of all formalities, delivery of possession was made in favour of the petitioner. In the meantime, O.P.3 filed an Appeal involving the award involving Dispute Case. The Appeal was dismissed on 11.6.77. Ram Abatar Agrawal filed Revision Case No.56/77, which was also dismissed. The second Revision Case No.1/83 being also filed was allowed and the case was remanded for fresh decision by the second revisional authority resulting filing of O.J.C. No.2154/1983 by the petitioner in this Court. In the meantime, Mutation Case No.59/87 was allowed in favour of the petitioner. In disposal of the writ petition, this Court interfering with the order involving R.C. No.1/83 allowed the writ petition. In the meantime, it appears, O.P.3 filed a Title Suit bearing T.S. No.639/99 in the Court of Civil Judge (Sr.Divn.), Bhubaneswar for declaration of his lease hold right in the case land and also for recovery of possession from the petitioner along with permanent injunction against the petitioner.
In the meantime, it appears, O.P.3 filed a Title Suit bearing T.S. No.639/99 in the Court of Civil Judge (Sr.Divn.), Bhubaneswar for declaration of his lease hold right in the case land and also for recovery of possession from the petitioner along with permanent injunction against the petitioner. It is at this stage, O.P.3 filed R.P. Case No.255/2000 and the petitioner also filed R.P. Case No.557/2001 involving the joint recording of the land in favour of O.P.3 and the present petitioner. Both the R.P. Cases were heard together and allowed on the premises of pendency of the suit at the instance of O.P.3 at the relevant point of time resulting filing of the present writ petition only by the petitioner while O.P.3 remained satisfied with an order involving R.P. Case No.255/2000. 3. Sri S. Mantry, learned counsel for the petitioner taking this Court to the developments narrated herein above and the pleadings involving the writ petition that the suit involving O.P.3 assailed the impugned orders on two grounds : Firstly, for there being no dispute involving the present petitioner and for involvement of an auction purchase and sale confirmation through proper authority based on creation of a sale deed in favour of the petitioner, there arose no occasion for the revisional authority to reject the claim of the petitioner involving R.P. Case No.557/2001. Secondly, even assuming that the suit bearing T.S. No.639/99 was pending at the relevant point of time, the claim of O.P.3 could have been dismissed while observing the preparation of Record of Rights at the instance of the petitioner would be subject to the result of the Title Suit. It is in the circumstance, Sri Mantry, learned counsel for the petitioner contended that there has been improper consideration of the materials available on record by the revisional authority resulting appearance of a bad and illegal impugned order, which unless be interfered with will lead to bad precedent. Sri Mantry, learned counsel for the petitioner further taking this Court to the further development taking place during pendency of the writ petition, more particularly dismissal of the Suit at the instance of O.P.3 contended that the Appeal being preferred, vide R.F.A. No.141/2005 having been dismissed and further R.S.A. No.302/2008 having been dismissed by this Court on 7.8.2019, O.P.3 had lost all his claim through competent court of law.
Sri Mantry while claiming for allowing the R.P. Case at his instance by way of interference by this Court in the impugned orders at Annexures-9 & 9A, also prayed for a direction from this Court to maintain the name of the petitioner in the Record of Rights involving the disputed property. 4. Sri S.P. Panda, learned Additional Government Advocate, however, taking this Court to the position on pendency of T.S. No.639/1999 at the relevant point of time contended that dismissal of the Suit so far as O.P.3 remains valid but however, considering the request of the petitioner so far as rejection of R.P. Case No.557/2001 is concerned, Sri Panda submitted that the revisional court went wrong in giving the finding therein insofar as it relates to the petitioner. Learned Additional Government Advocate further did not dispute the subsequent development so far as it relates to dismissal of the Title Suit, consequently dismissal of R.F.A. No.141/2005 and R.S.A. No.302/2008 involving the claim of right, title and interest involving the disputed property by O.P.3. 5. In spite of notice to O.P.3 and appearance of a set of Counsel, nobody is present to submit on his behalf during course of hearing. This matter is thus decided on the basis of submission made by the learned counsel for the petitioner as well as the learned Additional Government Advocate and on perusal of the documents available herein. 6. Considering the rival contentions of the parties, this Court finds, admitted position involving the dispute is that O.P.3 originally was the lease holder of the disputed property. Being the lease holder, O.P.3 entered into financial transaction with Ekamra Cooperative House Building Societies Ltd. There also remains no dispute that O.P.3 failed in discharging the loan responsibility resulting initiation of Dispute Case No.591/68-69 under Section 68 of the Cooperative Societies Act. This Dispute Case was allowed in favour of the financer with a direction for realisation of the amount involved therein resulting the award indicated herein above. Auction process taking place involving the disputed property, the petitioner became the highest bidder in the public auction for the purpose. Being the highest bidder, there is also issue of sale certificate in favour of the petitioner following thereon, a sale deed was also executed along with sale certificate and confirmation of sale in favour of the petitioner particularly involving the disputed property.
Being the highest bidder, there is also issue of sale certificate in favour of the petitioner following thereon, a sale deed was also executed along with sale certificate and confirmation of sale in favour of the petitioner particularly involving the disputed property. This court here finds, for all the above developments, there remains no dispute that the petitioner has the absolute right, title and ownership of the disputed property. 7. Now considering the initiation of litigation at the instance of O.P.3 at this stage of matter by way of T.S. No.639/1999, this Court finds, the Suit though was pending at the time of disposal of R.P. Case Nos.255/2000 & 557/2001 at the instance of O.P.3 and the petitioner respectively but for the subsequent development taking place during pendency of the writ petition, the suit at the instance of O.P.3 bearing T.S. No.639/1999 has been dismissed on 30.11.2005 on allowing an application under Order 7 Rule 11 of C.P.C. by the Civil Judge (Sr.Divn.), Bhubaneswar. Consequent upon filing of R.F.A. No.7/141 of 20062005 at the instance of O.P.3, this R.F.A. also appears to be dismissed by the appellate court on 2.8.2008. O.P.3 filed R.S.A. No.302/2008. The records disclose that the R.S.A. has also been dismissed. This court here finds, even though the development involving the R.F.A. as well as the R.S.A. as brought by way of note of submission and there is no pleading in the writ petition, however, this Court calling for the records involving R.S.A. No.302/2008 finds, this Court by order dated 7.8.2019 in disposal of the R.S.A. passed the following orders :- “Heard learned counsel for the appellant and Shri A.K. Mishra, learned counsel for the respondent no.1 For non-filing of the certified copy of the trial court judgment since long and also in spite of direction of this Court dated 5.1.2016, this appeal is not maintainable. Accordingly, this RSA stands dismissed.” This Court finds, there remains no doubt that the Title Suit at the instance of O.P.3 has been decided against O.P.3. Therefore, O.P.3 has no pending claim involving right, title and interest involving the disputed property.
Accordingly, this RSA stands dismissed.” This Court finds, there remains no doubt that the Title Suit at the instance of O.P.3 has been decided against O.P.3. Therefore, O.P.3 has no pending claim involving right, title and interest involving the disputed property. In the circumstance, this Court finds, though the materials involving dismissal of the Suit, First Appeal & Second Appeal were not available for consideration of the revisional authority but for the clear right, title and possession over the disputed property since long, the revisional authority had no occasion to reject the claim of the petitioner therein and the matter deserves to be remanded. However, for the development brought through the written note and Second Appeal records disclosing dismissal of the Suit in the meantime, this Court finds, the reason for dismissal of the R.P. Case No.557/2001 does not survive. 8. For the finality of the right, title and interest involving the disputed property through the suit at the instance of O.P.3, this Court interfering with the impugned orders at Annexures-9 & 9A and setting aside the both dismisses the claim at the instance of O.P.3 through R.P. Case No.255/2000 and allows R.P. Case No.557/2001 at the instance of the present petitioner. In the circumstance, this Court further directs the Tahasildar concerned to maintain the Record of Rights involving the disputed property in favour of the petitioner alone. The entire exercise involving the correction of Record of Rights be concluded within a period of one month from the date of communication of this order at the instance of the petitioner. 9. The writ petition succeeds. No cost.