Research › Search › Judgment

Orissa High Court · body

2021 DIGILAW 41 (ORI)

Ashok Kumar Pati v. State Of Odisha Others

2021-02-01

K.R.MOHAPATRA

body2021
ORDER K.R. Mohapatra, J. - Due to outbreak of COVID-19, this matter is taken up through Videoconferencing. 2. Heard Mr. P.K. Rath, learned counsel for the petitioners, Mr. S. Mishra, learned Additional Standing Counsel for the State-opposite party nos.1 and 2 and Mr. D.P.Mohanty, learned counsel for the opposite party no.3. 3. Since the issue involved in both the writ petitions is similar, those are taken up together and are disposed of by this common order. 4. W.P.(C) No.13832 has been filed assailing the common order dated 28.06.2018 (Annexure-1) passed by the Additional Commissioner, Consolidation & Settlement, Sambalpur on the petition filed for recall of order dated 20.06.2016 passed in R.P. No. 587 of 2016 and W.P.(C) No. 13833 of 2018 has been filed in respect of order passed in R.P. No.939 of 2017 respectively, wherein learned Addl. Commissioner while adjudicating the revision petition (R.P. No. 939 of 2017) together with an application for recall of the order dated 20.06.2016 (Annexure-5) passed in Revision Petition No.587 of 2016 recalled the order dated 20.06.2016 and allowed the R.P. No. 939 of 2017 directing the Tahasildar, Lathikata to make necessary correction of the R.O.R. in the name of opp. party no.3 after due verification of the relevant documents. 5. Mr. Rath, learned counsel for the petitioners submits that the land in question was recorded in the name of father of the petitioners, namely, Narendra Kumar Pati and R.O.R. in respect of the case land was published on 30th October, 2013 (Annexure-3). Said Narendra Kumar Pati breathed his last on 12.01.2012. However, Hal R.O.R. was published in his name on 30.10.2013. Accordingly, the petitioners in both the writ petitions filed R.P. No.587 of 2016 under Section 15(b) of the Orissa Survey & Settlement Act, 1958 (for short 'the Act') for correction of the R.O.R. in their name. Since the sisters of the petitioners filed affidavit stating that they have no objection to record the case land in favour of the petitioners, the revision was disposed of on 20.06.2016 (Annexure-5) by the Additional Commissioner, Consolidation & Settlement, Sambalpur with a direction to correct the R.O.R. in the name of the petitioners. Accordingly, R.O.R. was corrected and was finally published under Annexure-6. Accordingly, R.O.R. was corrected and was finally published under Annexure-6. Subsequently, the opposite party no.3 filed a petition to recall the said order dated 20.06.2016 (Annexure-7) claiming his title over the land in question by virtue of a Registered Will stated to have been executed in his favour by the father of the petitioners, namely, late Narendra Kumar Pati on 30.09.2005. The opp. party no.3 also filed revision petition under Section 15(b) of the Act, which was registered as Revision Petition No.939 of 2017. Both the revision petition as well as the petition to recall the order dated 20.06.2016 were taken up together by the Additional Commissioner, Consolidation & Settlement, Sambalpur. The Addl. Commissioner taking into consideration the Registered Will stated to have been executed by Narendra Kumar Pati as well as the affidavits of attesting witnesses, namely, Satyanarayan Singh and Rama Chandra Kissan allowed R.P. No.939 of 2017 and recalled the order dated 20.06.2016 passed in R.P. No.587 of 2016 vide his common order dated 28.06.2018 under Annexure-1, which is under challenge in these writ petitions. 5.1 Mr. Rath, learned counsel for the petitioners further submits that the opposite party no.3 is a stranger to the family of the petitioners. The Will alleged to have been executed in favour of opposite party no.3 by their father had never seen the light of the day till the petition to recall the order dated 20.06.2016 was filed by the opposite party no.3. It is his submission that the Settlement Authority lacks jurisdiction to decide the contentious issue of title. In support of his case, he also relied upon the decision of this Court in the case of Alekh Chandra Rath -v- Commissioner of Land Records and Settlement, Orissa, Cuttack and others, reported in 1989 (II) OLR-135, wherein this Court at paragraph-7 held as follows: '7. The law is well settled that record of rights does not create or extinguish title and the settlement authorities lack the jurisdiction to adjudicate upon the disputed questions of title. The law is well settled that record of rights does not create or extinguish title and the settlement authorities lack the jurisdiction to adjudicate upon the disputed questions of title. But for the purpose of revenue records, the record of rights is prepared and the law attaches the presumption of correctness to the entries made therein..' 5.2 He also relied upon the decision of the Hon'ble Supreme Court in the case of State of Orissa and others -v-Commissioner of Land Records and Settlement, Cuttack and others, reported in AIR 1998 SC 3067 , wherein the Hon'ble Supreme Court at paragraph-38 held as follows: '38. The Board of Revenue while reviewing earlier orders passed in exercise of the jurisdiction under Sections 6-D, 15, 25 and 32 is certainly not acting as an appellate authority but is acting only as a revisional authority. It is true that Section 7 of the 1951 Act which is the source of the power of review states that the Board may 'review' its orders and 'pass such orders in reference thereto as it thinks fit'. We are aware that this Court has held, while explaining the words 'as it thinks fit' that those words are to be given a wide meaning. But in the context of review jurisdiction, these words cannot, in our opinion, be treated as equal to an appellate or even revisional jurisdiction. Particularly when we are dealing with review of orders passed in revisional jurisdiction, it is obvious that the review power should be something less than the revisional jurisdiction. We have noticed that under Rule 43 of the Rules made under the 1958 Act, the 'officers' who are conferred powers of review can exercise them only in case of 'mistakes or errors apparent on the face of the record'. In our considered opinion, the Board's review powers under the 1951 Act are also intended for correction of 'mistakes or errors apparent on the face of the record'. On that basis, the powers of the Board's delegate, namely the Commissioner, while exercising review powers of the Board under the 1951 Act, must be held to be equally circumscribed. We disagree in part with the decision of the Orissa High Court in Ramakanta [(1974) 40 Cut LT 91 7] when it stated that the power of revision under Section 7 of the 1951 Act is wider than Order 47Rule 1 CPC.' 6. Mr. We disagree in part with the decision of the Orissa High Court in Ramakanta [(1974) 40 Cut LT 91 7] when it stated that the power of revision under Section 7 of the 1951 Act is wider than Order 47Rule 1 CPC.' 6. Mr. Rath, learned counsel for the petitioners relying upon the aforesaid decisions submits that the Revisional Court under the Act has the power to recall/review their own order, when it is proved that the order was an outcome of an error apparent on the face of the record. Reading out the petition for recall of the order dated 20.06.2016 as at Annexure-7, he submits that there is no allegation that there is any error apparent on the face of the record. The only grievance of the opposite party no.3 in the petition for recall of the said order was that the opp. party no.3 was not given any opportunity of hearing and the Will executed in his favour was not considered by the Settlement Authority while passing the order dated 20.06.2016. Thus, the petition for recall of the order dated 20.06.2016 is not maintainable in the eyes of law. He further submits that although the Revisional Authority has taken into consideration the affidavit filed by the so-called attesting witnesses, namely, Satyanarayan Singh and Rama Chandra Kissan, but the petitioners were not afforded with an opportunity to cross-examine them. As such, it cannot be considered as evidence in the eyes of law. He further relied upon the decision of the Hon'ble Supreme Court in the case of Benga Behera and another -v- Brajakishore Nanda and others, reported in 2007 (9) SCC 728 , it has been held at paragraph-40 as follows: '40. It is now well settled that requirement of the proof of execution of a will is the same as in case of certain other documents, for example gift or mortgage. The law requires that the proof of execution of a will has to be attested at least by two witnesses. At least one attesting witness has to be examined to prove execution and attestation of the will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two attesting witnesses and the attesting witnesses had put their signatures in presence of the executant. At least one attesting witness has to be examined to prove execution and attestation of the will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two attesting witnesses and the attesting witnesses had put their signatures in presence of the executant. (See Madhukar D. Shende v. Tarabai Aba Shedage [ (2002) 2 SCC 85 ] ; Janki Narayan Bhoir v. Narayan Namdeo Kadam [ (2003) 2 SCC 91 ] and Bhagat Ram v. Suresh [ (2003) 12 SCC 35 ].)' 6.1 It is his contention that in order to prove that the title passed to the Opposite party No. 3 on the basis of a Will, the same has to be proved in terms of Section 68 of the Indian Evidence Act, 1872. That having not been done, the Revisional Authority has no jurisdiction to direct the concerned authority to record the case land in favour of opposite party no.3 on the basis of a Registered Will. Mr. Rath, also referred to the Will stated to have been executed in favour of opposite party no.3, which is annexed to the writ petition as Annexure-8. It is his contention that said Narendra Kumar Pati had signed the Will in Odia. But, there is no endorsement of the scribe of the Will to the effect that the testator had understood the contents of the said Will on being read over and explained to said Narendra Kumar Pati in Odia. It is his contention that said Narendra Kumar Pati had no knowledge of English and had no capacity to read and write in English. Thus, it appears that the Will, if any, has been obtained by practising fraud. All theses aspects were not taken into consideration by the Additional Commissioner for which the impugned order dated 28.06.2018 as at Annexure-1 is not sustainable in the eyes of law and is liable to be set aside. 7. Mr. Mohanty, learned counsel for the opposite party no.3 does not dispute the legal position raised by Mr.Rath, learned counsel for the petitioners. He, however, submits that since the opposite party no.3 claims to have derived title by virtue of a Registered Will, the presumption of its correctness is attached to it. 7. Mr. Mohanty, learned counsel for the opposite party no.3 does not dispute the legal position raised by Mr.Rath, learned counsel for the petitioners. He, however, submits that since the opposite party no.3 claims to have derived title by virtue of a Registered Will, the presumption of its correctness is attached to it. It is not disputed that at the time of adjudication of R.P. No.587 of 2016 filed by the petitioners, opportunity of hearing was not given to the opposite party no.3. He was not even made a party to the said revision. It is his further contention that in view of the nature of dispute involved in these writ petitions, parties should be relegated to the civil court to work out their remedies. Till then, R.O.R. published in the name of the petitioners should be kept in abeyance. He further submits that there is no quarrel over the fact that the Settlement Authorities have the power to recall/review their own order in view of the decision in the case of Alekh Chandra Rath (supra) and in the case of Commissioner of Land Records and Settlement, Cuttack (supra). He, therefore, prays for dismissal of these writ petitions. 8. Mr. Mishra, learned Additional Standing Counsel for the Sate, on the other hand, submits that he has nothing to submit on the facts of the case. But, the Revisional Authority has the power to recall its own order depending upon the facts and circumstances of the case. Since the Revisional Authority has exercised his discretion by recalling the said order, the petitioners, if feel aggrieved, may approach the civil court for redressal of their grievances. As such, these writ petitions are not maintainable. 9. Heard learned counsel for the parties. Perused the materials placed before this Court. The factual position as narrated by Mr. Rath, learned counsel for the petitioners is not much in dispute. Mr. Mohanty, learned counsel for the opposite party no.3 referring to the counter affidavit filed by the opposite party no.3 to the writ petitions however submits that the opposite party no.3 is not a stranger to the family, but he is the successor-in-interest of the common ancestor, namely, Gananath Pati. Be that as it may, law is well-settled that the Revenue Authority has the power to recall/review its own order and correct the errors apparent on the face of the record. 10. Be that as it may, law is well-settled that the Revenue Authority has the power to recall/review its own order and correct the errors apparent on the face of the record. 10. On perusal of the order dated 20.06.2016 under Annexure-5, it cannot be said that there is any error apparent on the face of the record. It is also not disputed that the petitioners are the sons of the recorded tenant, namely, Narendra Kumar Pati. Since the R.O.R. under Annexure-3 was published in the name of their father, who was dead by then, they filed revision under Section 15(b) of the Act for correction of the R.O.R. in their name. The Additional Commissioner taking into consideration the materials available on record directed to record the land in question in the name of the petitioners. Accordingly, the R.O.R. has already been corrected and published in the name of the petitioners under Annexure-6. Subsequently, the opposite party no.3 claiming title over the case land by virtue of a Registered Will stated to have been executed by said Narendra Kumar Pati, filed an application for recall of the order dated 20.06.2016 as well as the revision under Section 15 (b) of the Act in R.P. No. 939 of 2017 to correct the R.O.R. in his name. From the pleadings of the parties before the Revisional Authority it appears that the petitioners seriously dispute the claim of the opp. party no.3 on the basis of the Will in question. The Additional Commissioner, while considering the matter, delved into the contentious issue of title claimed on the basis of the Will, which is not permissible under law while exercising the power under Section 15(b) of the Act. By execution of a Will by the recorded tenant, the natural line of succession is given a goby. The legatee claims to step into the shoes of the testator depriving the person(s) in the natural line of succession. Thus, the Court while relying upon a Will is required to be circumspective. The contentious issue of title can only be decided by the civil court. The Will in question is required to be proved by removing the suspicion shrouded in execution of the Will. The affidavits filed by the attesting witnesses cannot, at all, be considered as evidence in view of Section 3 of the Indian Evidence Act, 1872. 11. The contentious issue of title can only be decided by the civil court. The Will in question is required to be proved by removing the suspicion shrouded in execution of the Will. The affidavits filed by the attesting witnesses cannot, at all, be considered as evidence in view of Section 3 of the Indian Evidence Act, 1872. 11. In that view of the matter, I am of the considered opinion that the Revisional Authority has exceeded his jurisdiction and committed error of law in recalling the order dated 20.06.2016 as well as directing to record the land in the name of opposite party no.3 on the basis of a Registered Will, more particularly when the petitioners, who are persons in the natural line of succession have seriously disputed the claim of the Opp. Party No. 3 on the basis of the Will in question. The petitioners are none other than the sons of the testator, namely Narendra Kumar Pati. As such, the claim of the Opp. Party No. 3 on the basis of the Will can only be decided by a competent civil court receiving evidence from the parties to the said suit. 11.1 As the validity of the order under Annexure-1 is in question in these writ petitions, I am not inclined to proceed further to keep the R.O.R. published in the name of the petitioners in abeyance. Thus, the submission of Mr. Mohanty, learned counsel for the opp. party no.3 cannot be accepted. 12. In that view of the matter, the impugned order under Annexure-1 being not sustainable in law is set aside. 12.1 It is open to the parties to work out their remedies in competent civil court. 13. Accordingly, these writ petitions are disposed of. 13.1. Authenticated copy of this order downloaded from the website of this Court shall be treated at par with certified copy in the manner prescribed in this Court's Notice No.4587 dated 25.03.2020.