Anasuya Mohanty vs State Of Odisha And Others
2021 Latest Caselaw 8219 Ori

                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   O.J.C. No.10418 OF 1997
                  Anasuya Mohanty                           ....      Petitioner
                                                   Mr. S.C. Acharya, Advocate
                                            -versus-
                  State of Odisha and others                .... Opp. Parties
                                                         Mr. Sarojananda Das,
                                             Additional Government Advocate
                        CORAM:
                        JUSTICE K.R. MOHAPATRA
                                         ORDER

Order No.                               06.08.2021
 12.        1.        This matter is taken up through hybrid mode.

2. The Petitioner in this writ petition seeks to assail the order dated 27th March, 1997 (Annexure-2) passed by the Sub- Collector, Anandapur-Opposite Party No.3 in Mutation Appeal No.10 of 1995, whereby he confirmed the order dated 27th January, 1994 (Annexure-1) passed by the Tahasildar, Anandapur-Opposite Party No.4 in Mutation Case No.8194 of 1993, which was dropped holding that the land in question cannot be mutated in the name of the Petitioner as she is not in possession over the same.

3. Mr. Acharya, learned counsel for the Petitioner submits that the property in question is a tank over Plot No.1990 under Khata No.277/10 to an extent of Ac.1.11 decimals in Village- Samukanandi under Anandapur Tahasil in the district of Keonjhar (for short 'case tank'). The land in question was recorded in the name of the vendor of the Petitioner, namely, Mandardhar Patnaik pursuant to the judgment and decree dated 22nd March, 1977 passed by the Sub-ordinate Judge, Anandapur

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in T.S. No.63/1994 of 1976/74-I. The Petitioner purchased the case tank by virtue of Registered Sale Deed No.2994 dated 8th October, 1982 and was delivered with possession. On purchase, the Petitioner filed Mutation Case No.8194 of 1993 to mutate the land in her name. The Tahasildar, Anandapur holding that the petitioner was not in possession over the case tank, refused to mutate the land in her name. Assailing the same, the Petitioner filed Mutation Appeal No.10 of 1995, which was also dismissed vide order dated 27th March, 1997 confirming the order passed by the Tahasildar, Anadapur. He further submits that the Petitioner is all along possessing the case tank exercising her right, title and interest thereon from the date of purchase. Thus, the revenue authorities committed gross error in law and fact in holding that the Petitioner was not in possession over the same and thereby rejecting the claim of the Petitioner for mutation of the case tank in her name. He also submits that taking into consideration the materials available on record, this Court while issuing notice in the matter on 6th May, 1998 in Misc. Case No.4650 of 1998 was pleased to pass the following order:

"Heard Shri Mohanty for the petitioner, Shri B.P.Das, learned Addl. Government Advocate for opp. parties 1 to 4 and Shri B. Sahu for opp. parties 5 and 6.

2. We find in the writ application that the petitioner has arrayed the villagers of Samukanandi represented through Pitambar Barik as opp. party no.5. Under Order 1, Rule 8C.P.C. villagers cannot be represented in the manner in which the petitioner has done. We accordingly direct deletion of the words "villagers of Samukanandi, represented through the". Pitambar Barik is, thus, accepted as opposite party no.5 in his individual capacity.

3. We have perused the copy of judgment of the learned Sub-ordinate Judge, Anandapur rendered in T.S. No.63/94 of 1976/74-I which is produced before us today. It appears from the said judgment that the plaintiff-Mandardhar Patnaik's suit

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was decreed declaring his right, title and possession over the disputed tank. The State of Orissa represented through Collector, Keonjhar (defendant no.1), Daitari Puhan (defendant no.2) and Gopi Barik (defendant no.3) were restrained from interfering with the possession of the plaintiff over the disputed tank. The writ petitioner claims to have purchased the disputed tank from the aforesaid plaintiff.

It is asserted by Shri Mohanty that the Petitioner has undertaken pisciculture in the tank and the opposite parties are trying to interfere with his right.

4. Considering the submissions of the counsel for the parties and in view of the decision of the civil court referred to above, Pitambar Barik (opp. party no.5), Basanta Kumar Patnaik (opp. party no.6) as well as opp. parties 1 to 4 are restrained from interfering with the petitioner's right of pisciculture over the disputed tank.

The Misc. Case is accordingly disposed of."

4. Hence, he submits that findings of the revenue authorities are against the weight of record and prays for setting aside the same and remit the matter back to the Tahasildar, Anandapur to adjudicate the matter afresh and mutate the land in the name of the Petitioner.

5. Mr. Mishra, learned Additional Government Advocate for the State vehemently objected to the same and submitted that the writ petition is not maintainable in view of the provisions of Section 32 of the Orissa Survey & Settlement Act, 1958. He further submits that while considering the mutation case filed by the Petitioner, the Tahasildar, Anandapur directed for a field enquiry and the concerned Revenue Inspector conducting the field enquiry and recording the statement of the villagers submitted a report to the effect that the Petitioner was not in possession over the case tank and the same is being used for communal purpose. It is his submission that in view of the paragraph-47 of the Mutation Manual read with Rule 34 of the Orissa Survey & Settlement Rules, 1962, a property in question

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can only be recorded in a mutation case, if the Petitioner is in possession over the same having title thereon. Both the facts finding courts came to a categorical conclusion that the Petitioner was not in possession over the case tank. Hence, the disputed question of fact cannot be decided in exercise of power under Article 226 of the Constitution. In that view of the matter, he prays for dismissal of the writ petition.

6. On perusal of the orders under Annexures-1 and 2, it prima facie appears that although the Petitioner has purchased the case tank by virtue of a Registered Sale Deed No.2994 dated 8th October, 1982 from the rightful owner, the fact finding courts have come a categorical conclusion that the Petitioner is not in possession over the same. However, Mr. Acharya, learned counsel for the Petitioner vehemently objected to the same and submitted that there are materials on record to show that the Petitioner is still in possession over the case tank exercising her right, title and interest thereon. This being a disputed question of fact, this Court cannot delve into the same exercising power under Article 226 of the Constitution. As such, the issue involved herein, cannot be adjudicated in this writ petition. Be that as it may, it is open to the Petitioner to establish her possession over the case tank by taking shelter in competent court of law.

7. In view of the above, this Court without interfering with the impugned orders under Annexures-1 and 2, disposes of the writ petition with an observation that the Petitioner, if so advised, may approach the competent court of law in accordance with law to establish her right, title and interest and possession over the case tank.

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8. In order to enable the Petitioner to avail the legal remedy, the interim order dated 6th May, 1998 passed in Misc. Case No.4650 of 1998 shall continue till 30th September, 2021 and not beyond that.

9. Urgent certified copy of this order be granted on proper application.

jm                                           (K.R. Mohapatra)
                                                   Judge