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2019 DIGILAW 632 (ORI)

Fagu Pani v. State of Orissa

2019-11-19

BISWANATH RATH

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JUDGMENT : BISWANATH RATH, J. 1. This Writ Petition involves a challenge to the order vide Annexure-1 passed by the Commissioner, Land Records and Settlement, Orissa, Cuttack in a proceeding U/s. 32 of the Odisha Survey and Settlement Act, 1958 hereinafter in short be called as “the Act, 1958” vide R.P. Case No. 2399 of 1998, arises out of the order dated 28.1.1998 passed by the Additional Settlement Officer-opposite party no. 2 in Appeal Case No. 2871 of 1997 vide Annexure-2. 2. Short background involved in this case is that the petitioner as well as opposite party nos. 4 and 5 are governed by the Mitakhara School of Hindu Law and are related to each other. They remained in jointness involving the property up to 1972. The suit land relates to village Swainkhanda, P.S. Binjharpur, Hal Khata No. 564, Hal Plot No. 4508, area Ac. 0.28 corresponding to Sabik Plot No. 3594 under Sabik Khata No. 404 and it stood recorded in the name of Bhagabat Pani. Thus, the said land is the ancestral joint family property of the parties. During the settlement operation “Parcha Slips” were also issued in favour of the petitioner and opposite party nos. 4 and 5 jointly along with other lands. The opposite party no. 4 filed objection case before the Assistant Settlement Officer to delete the name of the petitioner from the aforesaid Khata on the ground that the petitioner is the adopted son of Kalpataru. An Amin was deputed to enquire into the matter and it was reported by the Amin that the petitioner is the son of Bhagabat Pani and therefore, the suit land should be recorded jointly. The opposite party no. 4 being aggrieved by the report and such development, filed appeal before the opposite party no. 3 i.e. the Addl. Settlement Officer, Jobra, Cuttack. In the appeal, it was held that the petitioner is the adopted son of Kalpataru. In the circumstance, the name of the petitioner was sought to be deleted from the Hal Khata No. 564. Being aggrieved by the order passed by the appellate authority, the petitioner filed an application U/s. 32 of the Act, 1958. The petitioner to substantiate his case, urged that he has purchased a piece of land from Jhula bewa through registered sale deed alongwith opposite party. It further discloses that the petitioner is the son of Bhagabat Pani. Being aggrieved by the order passed by the appellate authority, the petitioner filed an application U/s. 32 of the Act, 1958. The petitioner to substantiate his case, urged that he has purchased a piece of land from Jhula bewa through registered sale deed alongwith opposite party. It further discloses that the petitioner is the son of Bhagabat Pani. He also relied on the Parcha slips issued in his favour showing him to be son of Bhagabat Pani and further also the voter card issued by the Election Commissioner establishing that he is the son of Bhagabat Pani. The application U/s. 32 of the Act, 1958 was finally heard and decided against the petitioner on acceptance of the adoption aspect, resulting filing of the present writ petition. 3. Shri S.K. Dash, learned counsel for the petitioner taking this Court to the grounds raised by way of objection in the appeal as well as in the application U/s. 32 of the Act, 1958 and further taking this Court to the findings of both the courts below particularly passing the impugned judgments relying on the adoption aspect contended that for the involvement of adoption aspect, unless the adoption deed remains valid or in the alternate adoption deed has been declared through the court of competent as valid, the Settlement Authority had no jurisdiction to enter into such aspect of the matter and passing the impugned judgment thereby declaring the adoption as valid. Relying on two decisions of the Hon’ble apex Court in the case of Madhusudan Das vs. Smt. Narayani Bai and Others, AIR 1983 SC 114 and another in the case of Ramchandra Dagdu Sonavane (Dead) by LRs. and Others vs. Vithu Hira Mahar (Dead) by LRs. AIR 2010 SC 818 , Shri S.K. Dash, learned counsel for the petitioner contended that for the direction of the Hon’ble apex Court that dispute involving adoption should be left open to be decided by the Civil Court, there is wrong appreciation of the legal position involved therein by both the appellate court as well as revisional court. Sri Dash, also contended that the Settlement Authority failed to appreciate the meaning of valid adoption and thereby arrived at wrong conclusion. Shri Dash in the circumstance claimed that unless the impugned orders are interfered with and set aside, the same will set a bad precedent. 4. Sri Dash, also contended that the Settlement Authority failed to appreciate the meaning of valid adoption and thereby arrived at wrong conclusion. Shri Dash in the circumstance claimed that unless the impugned orders are interfered with and set aside, the same will set a bad precedent. 4. Shri S.P. Panda, learned Additional Government Advocate appearing for opposite party nos. 1 to 3 and Shri S.K. Nayak, learned counsel for the opposite party nos. 4 and 5 in one tone contended that for the availability of a material establishing the fact of adoption, there is no illegality committed by either of the Courts below. Sri Nayak, learned counsel however raised the question of maintainability of the present proceeding since in the meantime final publication of Patta is already there. For the discussions and findings by both the Courts below involving the impugned orders, both the Counsels in one tone submitted that there being no illegality or infirmity in the impugned orders, there is no need to interfere with the same and thus both in one tone prayed this Court for dismissal of the Writ Petition. 5. Considering the rival contentions of the parties, this Court finds, there was series of materials establishing the petitioner being the son of Bhagabat Pani. It also appears from the case history and the pleadings of the parties that at no point of time, neither of any such documents could able to disestablish that the petitioner was the son of Bhagabat Pani. No doubt that there was a document prima facie satisfying the existence of adoption involving the petitioner. On perusal of appeal judgment at Annexure-2, it appears, for the first time the Advocate for the appellant files a plain copy of adoption deed in the appeal and the appellate court simply guided himself on the basis of plain copy of adoption deed. For there being no such material available during the original proceeding, this Court finds, the appellate authority followed a procedure, which is unknown to law. Further for the document indicating existence of adoption being in plain paper further being seriously objected by the present petitioner in both the forums and the petitioner could be able to clear his position through so many documents establishing him to be the son of Bhagabat Pani. Further for the document indicating existence of adoption being in plain paper further being seriously objected by the present petitioner in both the forums and the petitioner could be able to clear his position through so many documents establishing him to be the son of Bhagabat Pani. Not only that, there also exist a report of the Amin, who appears to have submitted on spot report favouring the petitioner and more particularly there is no challenge to such report. This Court, therefore, is of the opinion that the appellate authority as well as the revisional authority should have restricted these consideration on the materials existing in the original stage and for the serious dispute involving the adoption deed between the parties, further the plain copy of adoption deed being filed before the appellate authority, the authority should have left the issue of adoption open, to be adjudicated by the competent civil court. This Court further observes that for the nature of plain paper adoption deed for the first time surfacing in the appeal forum, the appellate authority should have ignored such document and decided the issue on the basis of available materials. On the claim of Sri Nayak, learned counsel, on maintainability of Writ, this Court finds petitioner had a statutory right under Section 32 to move the revisional authority and for having no other remedy to challenge such palpable wrong order had no other option than to go for a writ. Further, by an interim order, this Court also made it clear that any action taken on the basis of determination of the status by any authority, same shall be subject to the result of this writ petition. It is in the circumstance Patta, if any, published in the meantime also remain subject to result of this writ petition and shall be abided by the outcome of this writ petition. It is, at this stage of the matter, this Court takes into account the decision of the Hon’ble apex Court vide AIR 2010 SC 818 and finds, in paragraph no. 36 the Hon’ble apex Court observed as follows: “36. The appellants had filed O.S. No. 104 of 1953 before the Civil Court inter alia seeking an order of permanent injunction against respondent-Vithu and others, on the ground that they are Watandars of suit lands and they are in peaceful possession and enjoyment of the suit lands. 36 the Hon’ble apex Court observed as follows: “36. The appellants had filed O.S. No. 104 of 1953 before the Civil Court inter alia seeking an order of permanent injunction against respondent-Vithu and others, on the ground that they are Watandars of suit lands and they are in peaceful possession and enjoyment of the suit lands. Respondent-Vithu had set up a defence that since he is the adopted son of the deceased Watandar, he has the right, title and interest in the watanlands. Therefore, the trial court had framed an issue, whether the defendants prove that defendant No. 1 was the adopted son of his grandmother and as such was in possession of the suit property. The trial Court after elaborate discussion has answered the issue against Vithu and had concluded that Vithu failed to prove that he was the adopted son of deceased Watandar and, therefore, he cannot have any right, title or interest in the suit lands as Watandar. In this case, though the suit was bare injunction, title or interest in the suit lands as Watandar. In this case, though the suit was bare injunction, title to the properties was put on issue by the defendant-Vithu claiming that he is the adopted son of deceased Watandar and, therefore, he has Watandari rights in the suit lands. In order to decide the prayers made in the suit, the issue of adoption had to be decided. The issue falls within the exclusive jurisdiction of the Civil Court. In the subsequent proceedings before the Sub-Divisional Officer, the issue was whether Vithu was the adopted son of deceased Watandar and, therefore, having hereditary interest in any inferior village watan under Watan Abolition Act, 1958. To decide this issue, the Sub-Divisional Officer firstly has to decide the issue, whether Vithu is the adopted son of deceased Watandar. This issue is one which does not fall within the jurisdiction of the revenue Court but falls within the exclusive jurisdiction of the Civil Court. Since the issue of adoption was already decided between the same parties by a competent Civil Court, the Sub-Divisional Officer cannot decide that issue and without giving any decision on that issue could not have allowed the claim of the respondent Vithu. Therefore, in our opinion, the Principles of res-judicata would apply to the proceedings before the Sub-Divisional Officer.” 6. Since the issue of adoption was already decided between the same parties by a competent Civil Court, the Sub-Divisional Officer cannot decide that issue and without giving any decision on that issue could not have allowed the claim of the respondent Vithu. Therefore, in our opinion, the Principles of res-judicata would apply to the proceedings before the Sub-Divisional Officer.” 6. For the decision of the Hon’ble apex Court and for the observation of this Court made hereinabove, this Court finds, both the appellate court as well as the revisional court exercising their power under the provision of Odisha Survey and Settlement Act, 1958 have exceeded their jurisdiction and in the circumstance, this Court finds, both the impugned orders vide Annexures-1 and 2 are not sustainable in the eye of law. Consequently, while setting aside both the orders vide Annexures-1 and 2 this Court confirms the order passed by the A.S.O. Raichand Haripur in Rent Objection Case No. 22988 and directs for maintenance of the Record-of-Right involving disputed property accordingly. Exercise, if any, be concluded within a period of two months from the date of communication of this judgment. 7. The Writ Petition succeeds. However in the circumstance, there is no order as to cost.