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2020 DIGILAW 100 (ORI)

Kanduri Charan Behera v. Ramesh Ch Roul

2020-04-29

K.R.MOHAPATRA

body2020
JUDGMENT K.R. Mohapatra, J. - This writ petition has been filed assailing the order dated 01.01.1997 (Annexure-7) passed by the Commissioner, Consolidation, Cuttack (O.P. No.27) in Consolidation Revision No.1855 of 1995 and to direct the opposite parties 25 to 27 to record the case land in the names of the petitioners and opposite party Nos. 9 to 23 jointly. 2. The case land pertains to Sabik Plot No.4089, Sabik Khata No.709 and Sabik Plot No.4095 in Sabik Khata No.699 corresponding to LR Plot No.4262 to an extent of Ac.0.070 decimal and Plot No. 4264 to an extent of Ac.0.630 decimal respectively of village Tarapur in the district of Kendrapara. 3. It is the case of the petitioners that one Kamrun Nisa Bibi, the ex-intermediary had leased out an area Ac.0.81 decimals of land in favour of the predecessors of the petitioners and opposite parties under an unregistered deed dated 27.03.1954 (Annexure-1) and handed over possession to them. The contesting opposite parties 1 to 8 are the successors of the lessee, Krushna Raul. The petitioner No.1 and the original petitioner Nos.2 and 3 are the successors of lessee, Banamali Behera. Petitioner Nos.4 and 5 are the successors of lessee, Kasinath Raul. Petitioner No.6 is the successor of lessee, Baishnab Behera. The original petitioner No.7 himself was one of the lessees. Petitioner No.8 is the successor of lessee, Bhagaban Raul. The original petitioner No.9 himself was one of the lessees. 3.1 It is the further case of the petitioners that after abolition of estate, Jamabandi was prepared in the name of lessee-Krushna Raul and others, who continued to pay rent (some of the rent receipts are at Annexures- 2, 3 and 3/1). In the year 1958, one Sk. Makbul, son of Abdul Babbar, filed Title Suit No.23 of 1958 in the Court of learned Munsif, Kendrapara for declaration of his tenancy right in respect of certain lands including the case land against lessor and other defendants. Krushna Raul (the predecessor of contesting opposite party Nos. 1 to 8) was impleaded as defendant No.3 in the said suit. Makbul, son of Abdul Babbar, filed Title Suit No.23 of 1958 in the Court of learned Munsif, Kendrapara for declaration of his tenancy right in respect of certain lands including the case land against lessor and other defendants. Krushna Raul (the predecessor of contesting opposite party Nos. 1 to 8) was impleaded as defendant No.3 in the said suit. Said Krushna Raul filed written statement in the said suit stating that the defendant No.3 (himself), defendant Nos.9 and 12 and other lessees had approached the landlady, namely, Kamrun Nisa Bibi, defendant No.1 therein, for cultivation of Ac.0.81 decimal of land (the case land) and she had leased out the same and put them in possession. Said Kamrun Nisa Bibi (defendant No.1 therein) had also admitted about the lease. However, the suit was ultimately dismissed. 3.2 During settlement operation, the names of the lessees including the predecessors of the petitioners and opposite party Nos.9 to 23 were recorded in Khanapuri records. However, during continuance of the settlement operation, notification under Section 3 of the Odisha Consolidation of Holding and Prevention of Fragmentation of Land Act, 1972 (for short, 'the Consolidation Act') was made and the consolidation operation started in the village. In the land register prepared under Section 6 of the Consolidation Act, name of one Khirod Chandra Mohanty (O.P. No.24) was recorded in respect of LR Plot No.4265 corresponding to Sabik Plot No.4096 to an extent of Ac.0.11 decimal. Likewise, Kulamani Raul was recorded in respect of LR Plot Nos.4262 and 4264, corresponding to Sabik Plot Nos.4089 and 4095 to an extent of Ac.0.07 decimal and Ac.0.63 decimal (the case land) respectively. Accordingly, the original petitioners filed Objection Case No.4112 of 1985 under Section 9(3) of the Consolidation Act to incorporate their names in respect of case land along with other recorded tenants. The said Objection Case was dismissed for default on 20.01.1989. However, the lessees again filed Objection Case Nos.470 and 471 of 1992 under Section 15(1) of the Consolidation Act, which was dismissed on 21.10.1992 and 30.09.1992 respectively, on the ground of maintainability of the Objection Cases in view of the bar under Section 14 of the Consolidation Act. Thus, the petitioners filed two revisions under Section 37(2) of the Consolidation Act before the Director, Consolidation in Revision Case Nos.7063 and 7064 of 1992. Thus, the petitioners filed two revisions under Section 37(2) of the Consolidation Act before the Director, Consolidation in Revision Case Nos.7063 and 7064 of 1992. The Director, Consolidation on consideration of materials on record remanded the matter to Consolidation Officer to decide the Objection Cases on merit. The Consolidation Officer, however, vide his order dated 27.06.1995 (Annexures-4 and 5), rejected both the Remand Revision Cases, viz, Remand Revision Case Nos. 7063 of 1992 and 7064 of 1992, on the ground that the claim of the petitioners was not maintainable in view of the provisions under Act 1 of 1948. At the same time, the Consolidation Officer directed to retain the LR record in the name of Kulamani Raul, the grandfather of opposite party Nos.1 to 8. Petitioners being aggrieved filed Consolidation Appeal No.93 of 1995 before the Deputy Director, Consolidation, Kendrapada challenging the order passed in Remand Revision Case No.7064 of 1992. The Deputy Director, Consolidation, however, reversed the said order dated 27.06.1995 by allowing the appeal vide order dated 28.10.1995 (Annexure-6) holding that lease granted in favour of the petitioners, vide un-registered deed dated 27.03.1954 was valid and all the successors of the original lessees are entitled to be recorded jointly in respect of the case land. Assailing the said order, the opposite parties 1 to 8 filed Revision Case No.1855 of 1995 before the Commissioner, Consolidation, Cuttack. The Revisional Court, however, restored the order of the Consolidation Officer holding that the unregistered lease deed executed in the year 1954 was invalid and do not confer any right on the petitioners. At the same time, he introduced a new case holding that the lease in favour of Kulamani Raul was prior to 1942 and thus, the same remained unaffected by the provisions of Act 1 of 1948. Accordingly, vide order dated 01.01.1997 (Annexure-7), he allowed the Revision assailing which this writ petition has been filed. 4. Mr. Mohanty, learned counsel for the petitioners vehemently argued that the ex-intermediary, namely, Kamrun Nisa Bibi, leased out the case land in favour of the predecessors of the petitioners and opposite parties vide un-registered lease deed dated 27.03.1954. It is also not the case of the opposite parties 1 to 8 that a separate lease/hat patta was granted in their favour prior to 1942. Such a document has never seen the light of the day. It is also not the case of the opposite parties 1 to 8 that a separate lease/hat patta was granted in their favour prior to 1942. Such a document has never seen the light of the day. But, the Revisional court by introducing a completely new case, allowed the claim of opposite parties 1 to 8, which is not sustainable in the eyes of law. When lease in favour of the predecessors of opposite parties 1 to 8 was held to be valid, which was granted under self-same un-registered lease deed dated 27.03.1954, the claim of the petitioners could not have been turned down holding that the lease in their favour on the basis of such un-registered lease deed is invalid. Further, after abolition of the estate Jamabandi was prepared in the name of the predecessors of the petitioners and opposite party Nos.1 to 8 and the petitioners used to pay rent regularly. At Khanapuri stage of the settlement operation, the case land was also jointly recorded. These material aspects were not taken into consideration by the Revisional court, which makes the impugned order under Annexure-7 vulnerable. Accordingly, he prays for setting aside the same and to direct the Consolidation Authority to record the case land jointly in the name of the petitioners and opposite party Nos. 9 to 23 along with opposite parties 1 to 8. 5. Mr. Baug, learned counsel for opposite parties 1 to 8 submitted that Jamabandi was prepared in the name of Krushna Raul alone and accordingly land register was prepared in the name of successors of said Krushna Raul, namely, Kulamani Raul and others. He, further submitted that pursuant to the direction in Revision Case Nos.7063 of 1992 and 7064 of 1992, filed under Section 37(2) of the Consolidation Act, the Consolidation Officer heard the matter on merit and rejected the claim of the petitioners, vide order dated 27.06.1995 as at Annexures-4 and 5, but assailing said order, the petitioners filed one Consolidation Appeal, i.e., Consolidation Appeal No.93 of 1995 before the Deputy Director, Consolidation, Kendrapada, who vide judgment dated 28.10.1995 under Annexure-6 erroneously allowed the appeal, which relates to Remand Revision Case No.7064 of 1992 only. Thus, the present opposite parties 1 to 8 filed Consolidation Revision No.1855 of 1995 before the Consolidation Commissioner who passed the impugned order under Annexure-7 by setting aside the order passed under Annexure-6 and restoring the order passed by the Consolidation Officer. 5.1 It is his submission that as per the Sabik RoR published on 25.03.1930 one Choudhury Mohammad Ismaile Khan was the ex-intermediary and case land pertaining to Sabik Khata No.699, Sabik Plot No.4095 was published under 'NIJ JOT' of the ex-intermediary (Annexure-G/1) and Sabik Khata No.709, Sabik Plot No.4089 was published under 'NIJ CHAS' of the ex-intermediary (Annexure-H/1). The case land (both the plots) were leased out in favour of Krushna Raul much prior to 1942. The estate vested in the State in the month of March, 1952. On the vesting the ex-intermediary, he submitted Raffa (Ekpadia) in respect of Plot No. 4095 to an extent of Ac.0.063 decimals of Khata No.699 and Plot No.4089 to an extent of Ac.0.07 decimals under Khata No.709 in Mouza-Tarapur in favour of Krushna Raul only. Accordingly, tenant's ledger (Jamabandi No.1004 for Sabik Khata No.709 and Jamabandi No.980 for Sabik Khata No.699) was opened and rent was collected from said Krushna Raul. Since Krushna Raul for some time could not pay rent, Certificate Case No.399 of 1969-70 was initiated against said Krushna Raul and in the said certificate case Krushna Raul paid the rent. It is his case that after vesting of the estate in the month of March, 1952, the ex-intermediary or his legal heirs could not have leased out the case land by virtue of an unregistered lease deed (Hat Patta) on 27.03.1954 (Annexure-1). The unregistered lease deed dated 27.03.1954 was not signed by the lessee. Thus, by no stretch of imagination it can be said that said lease deed/Hat patta has conferred any right on the petitioners or their predecessors. Section 107 of the Transfer of Property Act, 1882 stipulates that if the lease exceeds one year, it can only be made by a registered document and nor otherwise. Further the said provision makes it clear that if the lease deed is reduced in writing, both the lessor and lessee must execute the same. But, the signature of the lessee is conspicuously absent in the unregistered lease deed under Annexure-1, which was for permanent lease. Further the said provision makes it clear that if the lease deed is reduced in writing, both the lessor and lessee must execute the same. But, the signature of the lessee is conspicuously absent in the unregistered lease deed under Annexure-1, which was for permanent lease. 5.2 When the land register was prepared in the name of Krushna Raul, the petitioners filed Objection Case No.4112 of 1985 under Section 9(3) of the Consolidation Act, which was dismissed for default. Accordingly, the land register was finally published under Section 13 of the Consolidation Act in respect of the case land in favour of the legal heir of Krushna Raul, namely, Kulamani Raul and after him in favour of the opposite party 1 to 8. Thus, filing of objection under Section 15 of the Consolidation Act is not maintainable in view of the bar under Section 14 of the Consolidation Act. Further the land register finally published under Section 13 of the Consolidation Act operates as res judicata to maintain the objection filed under Section 15 of the Act. Thus, the Objection Case Nos. 470 and 472 of 1992 were not maintainable being barred by res judicata. In support of his case he relied upon a decision in the case of Krushna Chandra Nath v- Kulamani Mohapatra and others,2009 Supp1 OrissaLR 530 paragraphs 7 and 8 of which read as follows: "7. This Court after perusing the materials available on record finds that fact remains, no Objection Case was filed by the petitioner within the time prescribed under the Act. Section 14 of the Act reads as follows: "Bar on objection :-Subject to the provisions contained in Section 15, no question in respect of- (a) right, title and interest in land, (b) partition on joint holdings, or (c) valuation of loans, houses, structures, trees, wells and others improvements. Where the question is sought to be raised by a land-owner recorded in the Land Register prepared under Section 6 which question might or ought to have been raised under Section 9 but has not been raised, shall be raised or heard at any subsequent stage of the consolidation proceedings." 8. The provision quoted above makes it clear that the doctrine of constructive res judicata shall apply to the present case in as much as the petitioner though had an opportunity did not raise the objection before the Consolidation Officer. The provision quoted above makes it clear that the doctrine of constructive res judicata shall apply to the present case in as much as the petitioner though had an opportunity did not raise the objection before the Consolidation Officer. Thus, the bar under Section 14 of the Act cannot be ignored....." Thus, it is submitted that the claim which the petitioners could have raised at the stage of filing objection under Section 9(3) of the Consolidation Act, being not raised at the relevant time, cannot be agitated subsequently under Section 15 of the Consolidation Act. Most surprisingly, petitioners have made Kulamani Raul a party to the Objection Cases filed in the year 1992, who had died on 10.01.1977. It is his submission that against two orders passed in Remand Revision Case Nos. 7063 of 1992 and 7064 of 1992 only one appeal was filed. Thus, the same is not maintainable being hit by principles of res judicata, as the order passed in Remand Revision Case Nos.7063 of 1992 being not challenged, is final and binding on the petitioners. Thus, the appellate authority in Appeal Case No.93 of 1995 could not have reversed the order passed in Remand Revision Case No.7064 of 1992. In support of his case, he relied upon a decision of the Hon'ble Supreme Court in the case of K.H. Siraj Vs. High Court of Kerala and others, (2006) 6 SCC 395 , in paragraph 76 of which the Hon'ble Court has held as under:- "76. One more factor has also to be noticed in regard to the civil appeals filed by Mr K.H. Siraj which, in our opinion, is also hit by res judicata. His writ petition in the High Court was OP No. 5219 of 2002. That was partly allowed without giving him any relief for a direction for appointment. On the other hand, the High Court set aside the selection of candidates occupying Ranks Nos. 60, 62, 64, 66, 68, and 70. The High Court filed Writ Appeal No. 1496 of 2004 before the Division Bench. Mr K.H. Siraj himself filed WA No. 1584 of 2004 against that part of the impugned judgment which was against him. Candidates occupying Rank No. 60, etc. who are affected by the judgment had themselves filed WAs Nos. 1498, 1510, 1526, 1527, 1541, 1588 and 1574 of 2004. Mr K.H. Siraj himself filed WA No. 1584 of 2004 against that part of the impugned judgment which was against him. Candidates occupying Rank No. 60, etc. who are affected by the judgment had themselves filed WAs Nos. 1498, 1510, 1526, 1527, 1541, 1588 and 1574 of 2004. All these appeals filed by the High Court and by these parties were allowed setting aside the judgment of the learned Single Judge. Mr K.H. Siraj's appeal (WA No. 1584 of 2004) was dismissed. However, Mr Siraj has chosen to file appeals only against the decision in WA No. 1496 of 2004 filed by the High Court and WA No. 1584 of 2004 filed by himself and has not chosen to file any appeal against the decision in the other appeals, WA No. 1498 of 2004, etc. filed by the affected parties. The decision therein has become final and, therefore, operates as res judicata and Mr K.H. Siraj's appeal is to be dismissed as such." And in the case of Sri Gangai Vinayagar Temple & another v- Meenakshi Ammal & others, (2014) 11 Scale 654 , in paragraphs 20, 23 and 24 of which the Hon'ble Court has held as under: "20. On the issue of applicability of res judicata in cases where two or more suits have been disposed of by one common judgment but separate decrees, and where the decree in one suit has been appealed against but not against the others, various High Courts have given divergent and conflicting opinions and decisions. The High Court of Madras and erstwhile High Courts of Lahore, Nagpur and Oudh have held that there could be no res judicata in such cases whereas the High Courts of Allahabad, Calcutta, Patna, Orissa and erstwhile High Court of Rangoon have taken contrary views. It should also be noted that there are instances of conflicting judgments within the same High Court as well. The decision of Tek Chand, J. in Full Bench Judgment of the Lahore High Court in Lachhmi vs. Bhulli,1927 AIR Lahore 289 and Full Bench Judgment of the Madras High Court in Panchanda Velan vs. Vaithinatha Sastrial, (1906) 29 ILR(Mad) 333 and of the Oudh High Court in B. Shanker Sahai v. B. Bhagwat Sahai,1946 AIR(Oudh) 33 (FB) appear to be the leading decisions against the applicability of res judicata. Without adverting to the details of those cases, it is sufficient to note that the hesitancy or reluctance to the applicability of the rigorous of res judicata flowed from the notion that Section 11 of the Code refers only to "suits" and as such does not include "appeals" within its ambit; that since the decisions arrived in the connected suits were articulated simultaneously, there could be no "former suit" as stipulated by the said section; that substance, issues and finding being common or substantially similar in the connected suits tried together, non-filing of an appeal against one or more of those suits ought not to preclude the consideration of other appeals on merits; and that the principle of res judicata would be applicable to the judgment, which is common, and not to the decrees drawn on the basis of that common judgment. xx xx xx 23. Adverting in the impugned Judgment to the decision of this Court in Sajjadanashin Sayed vs. Musa Dadabhai Ummer, (2000) AIR SC 1238 , the Division Bench delineated the distinction between an aspect of the litigation that is collaterally and incidentally, as against one that is directly and substantially focal to the question the determination of which is the immediate foundation of the decision. Reference was also drawn to enunciation of what constitutes res judicata in Hoag vs. New Jersey,1958 356 US 464 , namely that this important legal principle is attracted "if the records of the formal trial show that the judgment could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties". The Division Bench also garnered guidance from the observations of this Court in Isher Singh vs. Sarwan Singh, (1965) AIR SC 948 requiring the examination of the Pleadings and the Issues in order to ascertain whether the question was directly and substantially litigated upon. The Division Bench also considered Asrar Ahmed vs. Durgah Committee, Ajmer, (1947) AIR PC 1 and Pragdasji Guru Bhagwandasji vs. Patel Ishwarlalbhai Narsibhai, (1952) AIR SC 143 , before concluding that Issue No.2 framed in O.S. 5/78 was wholly unnecessary and faulty. The Division Bench also considered Asrar Ahmed vs. Durgah Committee, Ajmer, (1947) AIR PC 1 and Pragdasji Guru Bhagwandasji vs. Patel Ishwarlalbhai Narsibhai, (1952) AIR SC 143 , before concluding that Issue No.2 framed in O.S. 5/78 was wholly unnecessary and faulty. The Division Bench held that the findings on that Issue were unnecessary, did not constitute the minimum foundation for the ultimate decision and, therefore, would not constitute res judicata...." 5.3 It is his further submission that the unregistered lease deed dated 27.03.1954 (Annexure-1) is void and inoperative in view of the provisions of Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948 (Act, 1 of 1948), as the transaction was admittedly taken effect much after 01.01.1946. In support of his submission he relied upon the provisions under Section 3 (1) of the Act, 1 of 1948, which reads as follows: "3(1) Notwithstanding anything contained in any other law for the time being in force or any express or implied agreement but subject to the provisions of sub-section (2), no land shall without the previous sanction of the Collector sell, mortgage, lease or otherwise assign or alienate or convert into any rayati land, any communal forest or private land or create occupancy right therein. Provided that nothing in this sub-section shall be deemed to prohibit a Landlord from leasing out his private land for a period not exceeding two years without previous sanction of the Collector. (2) xx xx (3) xx xx " 5.4 Thus, alleged lease deed under Annexure-1 is void ab initio. 6. It is also contended that the averments made in Title Suit No. 23 of 1958 is of no consequence and it does not help the petitioners in order to establish their claim. No authentic document, i.e., either certified copy of the plaint or written statement or judgment in Title Suit No. 23 of 1958, was filed to show that Krushna Raul was party to the said case. Thus, quoting some so called pleadings in vernaculars (Odia) in the writ petition will not improve the case of the petitioners. He thus submitted that since the tenants' ledger in respect of the case land was opened in the name of Krushna Raul alone, the Consolidation Authority has to respect the same and thus the claim the petitioners was rightly rejected by the Revisional Authority. He, therefore, prayed for dismissal of the writ petition. 7. He thus submitted that since the tenants' ledger in respect of the case land was opened in the name of Krushna Raul alone, the Consolidation Authority has to respect the same and thus the claim the petitioners was rightly rejected by the Revisional Authority. He, therefore, prayed for dismissal of the writ petition. 7. In response to the submission of Mr. Baug, Mr. Mohanty, learned counsel for the petitioners in furtherance to his submission as aforesaid submitted that since the Objection Case No.4112 of 1985 filed under Section 9(3) of the Consolidation Act was dismissed for default, it cannot be said that it operates as a res judicata to decide the objection cases filed under Section 15(1) of the Consolidation Act. Further the order passed in Consolidation Revision Nos.7063 and 7064 of 1992 created a fresh cause of action in favour of the petitioners to agitate their grievance before the Consolidation Authorities. Thus, the plea of bar under Section 14 of Consolidation Act and that the claim of petitioners is hit by principle of res judicata do not hold good. He further submitted that as against order passed in Remand Revision Case No.7064 of 1992, Appeal Case No.93 of 1993 was filed. It is his submission that Remand Revision Case Nos.7063 and 7064 of 1992 were heard separately by Consolidation Officer and separate orders were passed. Thus, preferring one appeal will not operate as res judicata against the petitioners. He further contended that the case of the opposite party Nos.1 to 8 is only based on the unregistered lease deed dated 27.03.1954 (Annexure-1). There is no other document available on record to show as to how opposite party Nos.1 to 8 acquired right over the case land independently. In that view of the matter, the plea of the opposite party Nos. 1 to 8 that Jamabandi was opened in the name of Krushna Raul alone is misnomer and has no basis to stand. 8. Upon hearing learned counsel for the parties and on perusal of the case record, it appears that the claim of the petitioners is based on the lease deed dated 27.03.1954 (Annexure-1). It is their case that the case land was leased out in favour of the predecessors-in interest of petitioners as well as opposite party Nos.1 to 8 by virtue of Annexure-1. It is their case that the case land was leased out in favour of the predecessors-in interest of petitioners as well as opposite party Nos.1 to 8 by virtue of Annexure-1. The case land was also jointly recorded in their names in Khanapuri stage of the settlement operation. But, prior to publication of final Record of Right under Section 12 B of the Orissa Survey and Settlement Act, 1958, the village came under the fold of Consolidation Act by virtue of a notification under Section 3 of the said Act. They further claim that settlement of the case land, if any, in favour of co-lessee, namely, Krushna Raul, will enure to the benefit of other lessees under the selfsame lease deed under Annexure-1. On the other hand, it is the case of the opposite partyNos.1 to 8 is that one Choudhury Mohammad Ismile Khan was the ex-intermediary and Record of Right of the year 1930 was prepared in his name. He had leased out the case land in favour of Krushna Raul. After vesting of the estate in the year 1952 under Section 3 of the Orissa Estate Abolition Act, 1951, the ex-intermediary submitted Raffa (Ekpadia) in the name of said Krushna Raul and tenant's ledger was opened in his name in respect of the case and. Thus, Kamarrun Nisa Bibi could not have executed lease deed under Annexure-1 in favour of the predecessors of the petitioners in the year 1954, as she had no alienable right by then to execute the same. Taking into consideration the tenant's ledger opened in the name of Krushna Raul by the OEA authority, the land register under Section 6 of Consolidation Act was prepared. 9. On a close scrutiny of the rival claims of the parties, it is apparent that both are claiming title over the case land on the basis of settlement under the OEA Act. While the petitioners claim that the tenant's ledger was opened jointly in the names of the predecessors of the petitioners as well as the opposite partyNos.1 to 8, the opposite party Nos.1 to 8 claim that it was opened in the name of Krushna Raul, their predecessor, alone. The petitioners have come up with a specific case that the case land was leased out by virtue of an unregistered lease deed under Annesure-1. The petitioners have come up with a specific case that the case land was leased out by virtue of an unregistered lease deed under Annesure-1. On perusal of Annexure-1 although it appears that the lease deed in question was executed in favour of Krushna Raul, the predecessors of opposite party Nos. 1 to 8, along with the predecessors of the petitioners, but the opposite party Nos. 1 to 8 stoutly deny the same. It is their specific case that much prior to 1942 the case land was leased out by the ex-intermediary, namely, Choudhury Mohd. Ismile Khan in favour of Krushna Raul alone. There can't be any iota of doubt that Annexure-1 being unregistered and executed in the year 1954 is void ab initio and neither the petitioners nor the opposite party Nos.1 to 8 can derive any right, title or interest on that basis. But, at the same time, although the opposite party nos. 1 to 8 claim that the case land was leased out in favour of Krushna Raul much prior to 1942, no document or material in support of the same has been filed. Although, it is submitted by Mr. Baug, learned counsel that the Consolidation Officer after verifying the Jamabandi had directed to record the case land in favour of Krushna Raul, but neither the Jamabandi nor the land register in respect of the case land was produced before this Court to test the veracity of the same. The only document that is available on record is the lease deed dated 27.03.1954 (Annexure-1), which reveals that the case land was leased out by Kamarun Nisa Bibi in favour of Krushna Raul as well as the predecessors of the petitioners. Thus, it is a matter of investigation as to whether the OEA authority opened the tenant's ledger on the basis of Annexure-1 or not. It is also not clear as to whether the tenant's ledger in question was opened in the name of Krushna Raul alone or jointly, as aforesaid. This Court is not in a position to examine the same as the aforesaid relevant documents are not produced before it. 10. The opposite party Nos.1 to 8 contended that after land register under section 6 of the Consolidation Act was published the petitioners had filed Objection Case no. 4112 of 1985 under section 9(3) of the Consolidation Act, which was dismissed for default. 10. The opposite party Nos.1 to 8 contended that after land register under section 6 of the Consolidation Act was published the petitioners had filed Objection Case no. 4112 of 1985 under section 9(3) of the Consolidation Act, which was dismissed for default. But, the petitioners never challenged the same and only after publication of land register under section 13 of the Consolidation Act, they filed objection under section 15 of the Consolidation Act, which is hit by principles of constructive res judicata. In support of his submission Mr. Baug placed reliance upon the case of Krushna Chandra Nath (supra). There is no quarrel over the ratio decided in the said case. But, in my considered opinion the case law is not applicable to the case at hand as in the case at hand the matter was reopened by the Consolidation Officer pursuant to the direction of the Director, Consolidation in exercise of power under section 37(2) of the Consolidation Act in Consolidation Revision Nos. 7063 and 7064 of 1992 and the said order was never challenged in any court of law. On the other hand, the opposite party Nos.1 to 8 participated in the proceedings before the Consolidation Officer without raising any objection with regard to maintainability of the same. For that reason bar under section 14 of the Consolidation Act is also not applicable to the case at hand, more particularly when the Director, Consolidation directed to consider the matter on merit. 11. The opposite party Nos.1 to 8 further raised an objection that against orders passed in two Remand Revision Cases i.e. Remand Revision Case Nos.7063 and 7064 of 1992 the petitioners had preferred only one appeal under section 12 of the Consolidation Act, i.e. Consolidation Appeal no. 93 of 1995. Thus, the appeal is incompetent being barred by principles of res judicata. The objection raised prima facie appears to be not sustainable. Firstly, such a ground was not raised neither during adjudication of the Consolidation Appeal No. 93 of 1995 nor was it raised during adjudication of Consolidation Revision No. 1855 of 1995, which was filed by the Opposite party Nos.1 to 8 assailing the order passed in Consolidation Appeal No. 93 of 1995. Secondly, it appears that the Remand Revision Case Nos. 7063 and 7064 of 1992 relate to two separate plots and khatas. Secondly, it appears that the Remand Revision Case Nos. 7063 and 7064 of 1992 relate to two separate plots and khatas. The Consolidation Appeal No. 93 of 1995 was filed against the order passed in Remand Revision Case No. 7064 of 1992 only. It is, however, not clear from the materials available on record as to whether the petitioners have abandoned their claim in respect plot and khata covered under Remand Revision Case No. 7063 of 1992. The plea of res judicata being an important issue, which is a mixed question of fact and law, requires consideration with reference to the facts and law involved. 12. Another important issue which requires consideration is whether settlement of the case land by the OEA authority in favour of Krushna Raul, would enure to the benefit of the petitioners. This Court in the case of Pranakrushna Pradhan and another v- Harekrushna Pradhan and others, (1971) 37 CutLT 945 held as follows; "...................A simple analysis of this provision would indicate that on an application made by the intermediary, his cosharer would also get the advantage of being recorded with him as a raiyat in respect of the land which would be settled with the intermediary...................". 13. The settlement under the OEA Act creates a new title. The principles set out for intermediary is also applicable to the tenants. Although the land in question is settled in favour of one co-sharer, it may enure to the benefit of others depending upon the facts and circumstances of the case. This vital aspect has not been considered by any of the forums under the Consolidation Act although the same was raised before all the forums. It assumes importance in the present case in view of the claim of the petitioners to record the case land jointly, on the plea that the lease in respect of the case land was granted jointly in favour of the predecessors of the petitioners as well as opposite party Nos.1 to 8. 14. ************ 15. In view of the discussions made above, the impugned order under Annexure-7 is not sustainable. Accordingly, the impugned order under Annexure-7 is set aside and the matter is remitted back to the Commissioner, Consolidation, Cuttack (opposite party No.27) for fresh adjudication keeping in mind the observations made above. 16. The writ application is allowed to the aforesaid extent. No cost.