Orissa High Court
Heard Mr. S.P. Mohanty vs Unknown on 5 March, 2021
W.A. No. 183 of 2021
2. 05.03.2021 W.A. Nos. 183 & 184 of 2021
Heard Mr. S.P. Mohanty, learned counsel for the
appellant, Mr. P.K. Rath, learned counsel for the private opposite
respondents and learned Additional Government Advocate.
The appellants in these writ appeals challenge the
common order dated 01.02.2021 passed in W.P.(C) Nos. 13832
and 13833 of 2018, wherein the learned Single Judge set aside
the order dated 28.06.2018 passed by the Additional
Commissioner, Consolidation & Settlement in Settlement
Revision Petition No. 587 of 2016.
In view of the above, both the writ appeals are taken
together and disposed of by this common order.
The records reveal that W.P.(C) No. 13832 of 2018
had been filed by the present respondent No.3 challenging the
order dated 28.06.2018 passed by the Additional Commissioner,
Consolidation & Settlement Sambalpur on the petition filed for
recall of the order dated 20.06.2016 passed in R.P. No. 587 of
2016 and W.P.(C) No. 13833 of 2018 had been filed by the said
respondent no.3 in respect of order passed in R.P. No. 939 of
2017, wherein learned Additional 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 present appellant after due
BP verification of the relevant documents.
The learned Single Judge discussed all the factual
aspects in the judgment and observed that there is no error
2
apparent on the face of the order dated 20.06.2016. The
petitioners to the writ petitions are the sons of the recorded
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, 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 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
3
considered as evidence in view of Section 3 of the Indian
Evidence Act, 1872.
Accordingly, the learned Single Judge observed that
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. Therefore, the learned Single Judge set
aside the impugned order and gave liberty to the parties to work
out their remedies before the competent Civil Court.
On perusal of the impugned order, this court finds
that there is no error apparent on the face of the order to be
interfered with in these writ appeals. In view of the decision of
the Apex court in the case of Syed Yakoob Vs.
K.S.Radhakrishnan and others reported in AIR 1964 SC 477
and in the case of M/s Pepsico India Holding Pvt. Ltd., Vs.
Krishna Kant Pandey reported in (2015) 4 SCC 270, this court
is not inclined to interfere with the impugned order.
Both the writ appeals stand dismissed accordingly.
......................
S. Panda,J.
...........................
S.K.Panigrahi, J.
