Orissa High Court
W.P.(C) vs Unknown on 6 January, 2021
1 No. 32992 of 2020
W.P.(C)
2. 06.01.2021 Due to outbreak of COVID-19, this matter is
taken up through Videoconferencing.
2. Heard Mr.Bhagaban Mohanty, learned
counsel for the petitioner and Mr.Dillip Kumar Mishra,
learned Additional Government Advocate for opposite
party Nos. 1 to 3.
3. This writ petition has been filed assailing the
judgment and order dated 29.10.2020 (Annexure-5)
passed by the Sub-Collector, Jajpur (OP No.2) in
Mutation Appeal No.61 of 2020, whereby he allowed the
appeal remitted the matter back to the Tahasildar,
Jajpur (OP No.3) for fresh adjudication of Mutation Case
No.5464 of 2019 (Annexure-3).
4. Mr.Mohanty, learned counsel for the
petitioner submits that pursuant to judgment passed by
the learned Civil Judge (Senior Division), Jajpur in Civil
Suit No.908 of 2014, the petitioner filed Mutation Case
No.5464 of 2019 to record Hal Plot No.611 measuring
an area Ac.0.1200 decimal and plot No.612 to an extent
of Ac.0.0600 decimal under Khata No.801 of Mouza
Ankula under Jajpur tahasil in the district of Jajpur (for
short, 'the case land') in her name. On the basis of the
judgment passed by the Civil Court, the Mutation case
was allowed by order dated 20.01.2020 and
consequently ROR was also corrected in the name of the
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petitioner under Annexure-4. Subsequently, defendant
No.2 in the aforesaid suit (opposite party No.4 herein),
namely, Sanatan Panda assailed the said judgment
dated 20.01.2020 passed in CS No.908 of 2014 passed
in RFA No.76 of 2019, which is at present pending
before the learned District Judge, Jajpur. He also filed
Mutation Appeal No.61 of 2020 before the Sub-
Collector, Jajpur (OP No.2) assailing the order passed in
Mutation Case No.5464 of 2019. In the said appeal, the
opposite party No.4, namely, Sanatan Panda took a
stand that no notice in Mutation Case was issued to
him. He further contended that he has filed RFA No.76
of 2019 assailing the judgment and order dated
20.01.2020 passed in CS No.908 of 2014, which was
pending at the time of disposal of Mutation Case
No.5464 of 2019. Considering the same, the Sub-
Collector, Jajpur vide its order dated 29.10.2020
(Annexure-5) allowed the appeal and remitted the
matter back to the Tahasildar, Jajpur (OP No.3) for
fresh consideration of the case giving opportunity of
hearing to the parties concerned.
4.1 Mr.Mohanty, learned counsel for the
petitioner further submits that opposite party No.4 has
no manner of right, title and interest over the land in
question and he is a stranger to the case land in view of
the judgment and decree passed in Civil Suit No.908 of
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2014. The Sub-Collector, Jajpur could have decreed the
matter on merit on the materials available on record.
But he without applying his mind mechanically allowed
the appeal and remitted the matter back to the
Tahasildar, Jajpur. It has unnecessarily gave certain
findings while deciding the appeal, which may influence
the Tahasildar, Jajpur while adjudicating the Mutation
case. Hence, he prays for setting aside of the impugned
order and remit the matter back to the Sub-Collector,
Jajpur for adjudication of the appeal on merit.
5. Mr.Mishra, learned AGA, on the other hand,
submits that when the opposite party No.4 has
specifically taken the stand that he was not given
opportunity of hearing and he had already moved the
learned District Judge, Jajpur in RFA No.76 of 2019
assailing the Judgment and Decree passed in CS
No.908 of 2014, the Sub-Collector, Jajpur has rightly
remitted the matter back to the Tahasildar, Jajpur for
fresh adjudication of the Mutation case, giving
opportunity of hearing to the parties concerned. The
Tahasildar, Jajpur is competent to take into
consideration the contentions to be raised by the parties
and decide the matter on merit. Moreover, the opposite
party No.4 (defendant No.2 in the Suit), who is a
necessary party, was not made party to the Mutation
Case. Hence, there is no illegality in the impugned order
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under Annexure-5 and prays for dismissal of the writ
petition.
6. Taking into consideration the submissions of
learned counsel for the parties and on perusal of
materials placed on record, more particularly the
impugned order under Annexure-5, it appears that
opposite party No.4, who was defendant No.2 in the
Civil Suit No.908 of 2014, had taken the specific stand
that he was not been given opportunity of hearing in
Mutation Case No.5464 of 2019. He had also taken a
stand that CS No.908 of 2014 is under challenge before
the learned District Judge, Jajpur in RFA No.76 of
2019. Since the opposite party No.4 is a necessary party
to the Mutation proceeding and has taken a specific
stand that he was not given the opportunity of hearing,
the matter is required to be reconsidered by the
Tahasildar, Jajpur (OP No.3) by taking into
consideration the rival contentions of the parties, more
particularly when the petitioner failed to produce any
material to the effect that the opposite party No.4 was
noticed and was given opportunity of hearing in
Mutation Case No.5464 of 2019. The appellate
authority, i.e., the Sub-Collector, Jajpur will not be in a
position to verify the records and to record statements if
necessary for adjudication of the case. While passing
the order on the basis of the judgment and decree
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passed by the learned Civil Court exercising power
under Rule-35 of Odisha Survey and Settlement Rules,
1962, the Tahasildar, Jajpur (OP No.3) is required to
give notice to all the parties to the Suit. Thus, I find no
infirmity in the impugned order under Annexure-5 in
remitting the matter back to the Tahasildar, Jatni for
fresh consideration giving opportunity of hearing to the
parties concerned.
7. Accordingly, the writ petition stands
dismissed being devoid of any merit.
6.1 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.
................................
K.R. Mohapatra, J.
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