Akshaya Kumar Mohanty vs Pramod Kumar Padhiary And
2022 Latest Caselaw 1965 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                      W.A. Nos.186 and 187 of 2010


   (Arising out of judgment dated 11.05.20101 passed by the Hon'ble
   Single Judge in W.P.(C) No.2681 of 2010 and 2682 of 2010)

    W.A. No.186 of 2010
    Akshaya Kumar Mohanty                     ....
                                                               Appellant
                                   -versus-
    Pramod Kumar Padhiary and                 ....            Respondents
    another

                                              AND
    W.A. No.187 of 2010
    Rama Chandra Parida and others             ....
                                                               Appellant
                                   -versus-
    Pramod Kumar Padhiary and                  ....           Respondents
    another

Appeared in this case:-
    For Appellant              :        Mr. P.K. Rath-1, Mr. S. Barik,
                                              Mr. S. Mali, Mr. D. Jena,
                                       Mr. S.K. Swain, Mr. S. Mohanty
                                                      and Mr. S.Sahoo

    For Respondent No.1        :      Mr.Krupasindhu Sahoo, Mr. A.C.
                                            Sarangi and Mr. U. Sahoo

    For Respondent No.2        :                   Mr.Debakanta Mohanty,
                                                    Addl. Govt. Advocate

     CORAM:
     THE CHIEF JUSTICE
     JUSTICE A.K. MOHAPATRA

W.A. Nos.186 & 187 of 2010                                     Page 1 of 18
                             JUDGMENT

Date of Hearing : 03.03.2022 | Date of Judgment: 25.03.2022

A.K. Mohapatra, J.

W.A. No.186 of 2010

1. By filing the above noted Writ Appeal, the Appellant seeks to

challenge the judgment dated 11th May, 2010 passed by the learned

Single judge of this Court in W.P.(C) Nos.2682 of 2010, thereby

dismissing the Writ Petition filed by the Petitioner and refusing to

interfere with the order dated 22nd October, 2009 passed in Misc.

Case No.44 of 2007 by the Collector, Puri under Section 35(2) of

the Orissa Consolidation of Holding and Prevention of

Fragmentation Land Act, 1972 (in short 'OCH & PFL Act, 1972).

2. The factual matrix of the case, in brief, as culled out from the

Writ Petition is that the property under Consolidation Khata No.162

bearing Plot No.444, measuring an area of Ac1.62 decimals and

Consolidation Khata No.166 bearing Plot No.404, measuring an

area of Ac1.84 decimals in Mouza-Patasundarpur under Kakatpur

P.S. of Puri district. Initially the subject matter of dispute in this

case, was recorded jointly on the name of Respondent No.1

(Opposite Party No.1) and his brother, in stitiban status. The Kisam

of the land was recorded as 'Ghanapaka and Majhipadia' which

according to the Appellant is not amenable to consolidation.

However, the same was included in the Chaka without proper

verification with regard to the status and condition of the land.

3. It is further stated in the writ petition that Opposite Party No.1

for his legal necessity transferred his 50% interest/share in Plot

No.444, measuring Ac 0.81dec. and 30% in Plot No.404 measuring

Ac 0.61 dec. on 26th November, 2005 vide RSD No.2045,

measuring a total area of Ac 1.42 decimal to the Petitioner, who

happens to be a contiguous Chaka owner. Further on 26th November

2005, the Opposite Party No.1 sold the other chunk of the land to

another person, namely, Rama Chandra Parida and his brother, who

are Petitioners in the connected writ petition bearing W.P.(C)

No.2682 of 2010. Pursuant to said transfer, the land has been

measured and inspected by the Local Amin in presence of the

vendor, vendee and other co-sharers, who have not objected to such

transfer. Thereafter, the Tahasildar allowed the mutation and

accordingly mutation ROR has been issued in favour of the

Petitioner.

4. In the year 2007, due to a rift amongst the villagers due to

political rivalry, there was a dissension between the Opposite Party

No.1 and the Petitioner. Opposite Party No.1 being instigated by

some local people who were hostile to the Petitioner and wanted

that the Petitioner is harassed and humiliated in public, had filed a

Civil Suit vide C.S. No.92 of 2007 before the Civil Judge (S.D.),

Nimapara for declaration of his right, title and interest and for

confirmation of possession in respect of the above described land

and further to declare that the two Registered Instruments are not

Sale Deeds but Mortgage Deeds. In the said suit, Written Statement

(W.S.) has been field by the defendant-Petitioner.

5. While this was so, Opposite Party No.1 filed an application

under Section 35(2) of OCH & PFL Act bearing Misc. Case No.44

of 2007 before the Collector, Puri (Opposite Party No.2). The

Petitioner has further alleged in the writ petition that the said

application of the Petitioner has been disposed of by the Collector,

Puri without affording an opportunity of hearing to the Petitioner.

To substantiate his case, Petitioner has provided a list of dates.

According to the said list of dates, the application under Section35

(2) of the OCH & PFL Act was filed on 8th November, 2007. After

several dates, on 16th February 2009, it appears from record, both

the parties were present and the matter was heard and thereafter the

parties were directed to submit their written note of submissions.

On 22nd October 2009, final order was passed in Misc. Case No.44

of 2007 and 45 of 2007.

6. It is alleged by the Petitioner in the above noted writ petition that

since the matter was not fixed for final hearing, as the same was not

admitted, the Collector, Puri (Opposite Party No.2) heard the matter

and disposed of the same without giving opportunity of hearing to

the Petitioner and further due to latches and negligence on the part

of the learned counsel for the Petitioner, no document could be filed

before the Collector, Puri for its due consideration. As a result of

which, the Petitioner has stated that he couldn't present his case

properly and due to such failure on the part of the counsel for the

Petitioner, Misc. Case Nos.44 of 2007 and 45 of 2007 were allowed

by a common judgment dated 22nd October, 2009 and whereby the

two Registered Instruments were cancelled as the same were

executed and registered without the permission of the Tahasildar

concerned as required under Section 34(1) of the OCH & PFL Act

for transfer of any fragment of the consolidable area/land.

Thereafter the order dated 22nd October 2009, passed by the

Collector, Puri, was assailed before this Court by filing two separate

writ petitions bearing W.P.(C) Nos.2681 of 2010 and 2682 of 2010.

This Court by a common judgment dated 11th May, 2010

(Annexure-4) declined to interfere in the order dated 22nd October,

2009 and accordingly both the writ petitions were dismissed. Hence

the present writ appeals.

W.A. No.187 of 2010

7. The above captioned writ appeal has been filed by the Appellant

(Petitioner in the W.P.(C) No.2681 of 2010) assailing the common

impugned judgment dated 11th May, 2010 (Annexure-4) passed in

the aforesaid writ petition bearing W.P.(C) No.2681 of 2010,

whereby an order refusing to interfere with the impugned common

order dated 22nd October, 2009 was passed in Misc. Case No.44 of

2007 and 45 of 2007.

8. The facts of both the cases bearing W.P.(C) No.2681 and 2682

of 2010 are almost similar except the description of the parties and

property the petitioner claims to have purchased. Writ petition

bearing W.P.(C) No.2682/2010 involves a dispute relating to a

piece of land appertaining to Plot No.755/1579, measuring an area

of Ac.0.07 dec. out of Ac 0.14 dec. in Mouza-Patasundarpur, which

had been jointly recorded in the name of Opposite Party No.1 and

his brother and the said Mouza is notified under Section 41 of the

OCH & PFL Act and thereafter the Opposite Party No.1 for his

legal necessity had mortgaged the case land vide RSD No.256,

dated 25th January, 2005 in the name of the Petitioner.

9. Since common issues and questions of law are involved in both

the writ petitions and the factual background of both the cases are

similar coupled with the fact that both the Collector, Puri as well as

the learned Single Judge of this Court have adjudicated and

disposed of the matters by a common judgment, this Court is also

taking up both the appeals together and disposing of the same by a

common judgment.

10. Heard Mr. P.K. Rath-1, learned counsel for the Appellant and

Mr.Krupasindhu Sahoo, learned counsel for the Respondent No.1 in

W.A. No.186 of 2010 and Mr. Debakanta Mohanty, learned

Additional Government Advocate for Respondent No.2 in both the

appeals. Perused the impugned orders, pleadings of the parties,

documents as well as the written note of submissions filed by the

learned counsel for the Appellant.

11. Learned counsel for the Petitioner while assailing the impugned

common judgment dated 11th May, 2010, at the outset submits that

he did not get a fair opportunity to defend his case properly. It is

further submitted by the learned counsel for the Petitioner that

permission under Section 34(2) of OCH & PFL Act is not necessary

for transfer of any fragmented land as the Petitioner is the owner of

contiguous Chaka on the Western side of the case land and his other

family members are the owners of contiguous Chaka on the

Southern side of the case land. Therefore, RSD No.2045, dated 26th

November, 2005 is not a void document. He further submits that

although this aspect of the matter was available on record, the same

has not been considered by the learned Single Judge of this Court

while adjudicating the issue. He further submits that there exists an

error apparent on the face of the record as there is no dispute over

any portion of the case land or with any other contiguous Chaka

owner, the proceeding initiated at the instance of the Opposite Party

is vague and is designed to harass the Appellant.

12. It is further contended by the learned counsel for the Petitioner

that the case land even though recorded as a consolidable land, but

considering the area and the transfer so made by Opposite Party

No.1 in favour of the Petitioner, the same does not come within the

purview of Section 37 of the OCH & PFL Act, which would call for

any interference by the Collector, Puri without giving an

opportunity of hearing to the Petitioner.

13. The crux of the argument of the counsel for the Petitioner is

that while deciding the application filed by the Opposite Party No.1,

the Collector, Puri has not followed the principles of natural justice

and as such no opportunity of hearing was afforded to the Petitioner

in the case. He further submits that in view of the report received by

the Collector, there is no fragmentation of Chaka and hence the

question of invoking the provision of Sections 2, 34 and 35 of OCH

& PFL Act does not arise. It is further submitted by the learned

counsel for the Petitioner that Opposite Party No.1 is estopped to

challenge the impugned order by taking advantage of the wrong

committed by him, more so, in the absence of any allegation made

by any of his co-sharers. He further submits that the Collector has

no jurisdiction to pass the impugned order declaring the registered

instruments to be void.

14. Learned counsel for the Petitioner further contends that

Opposite Party No.1 was compelled to file a civil suit bearing C.S.

No.92 of 2007, which is pending in the Civil Court. Therefore, the

proceeding under Section 34 and 35 of the OCH & PFL Act bearing

Misc. Case No.44 of 2007 before the Collector, Puri, which had

admittedly been instituted after filing of the suit, is not

maintainable. He further challenges the finding arrived at in

paragraph-13 of the impugned judgment with regard to the nature of

the document on the ground that the learned Single Judge Bench

without there being any material on record to support his finding

and by misinterpreting Section 92 of the Evidence Act has arrived

at such findings. He further submits that the findings so arrived at

are perverse and contrary to law. Further such finding is likely to

impact/ influence the final adjudication of the civil suit pending in

the court of Civil Judge (S.D.), Nimapara and the pleadings and

evidence adduced by parties in support of their respective claims

would be rendered meaningless and eventually the suit may become

infructuous.

15. It is further submitted by Mr. Rath, learned counsel for the

Petitioner that the transfer so effected is in respect of an area more

than Ac.1.00 dec. and the land could be identified from the

boundary description given in the deed which comprises of the

compact area out of the total area of Ac 1.62 dec. and Ac 1.84 dec.

in both the plots, thus in view of Section 2(m) of OCH & PFL Act,

there is no question of fragmentation of consolidable land and there

will be no difficulties for the Petitioner to amalgamate his

purchased land along with his own land to promote the scheme of

the consolidation. Further considering the said aspect of the matter,

the learned Single Judge passed the impugned order, which is not

sustainable in the eye of law.

16. It has also been submitted by the learned counsel for the

Petitioner that there has been no challenge to the mutation

proceeding as of now and the mutated ROR and corrected khatiyan

have been issued in the name of the Petitioner. Moreover, the ratio

of the judgments of this Court in Pradip Kumar Mangaraj and

another v. Pravat Chandra Ghose and others1990 (1) OLR 193

and Smt. Binapani Sethi and another v. Sri Bijay Kumar Sahoo

and others 1997 (II) OLR 399 are not applicable to the facts of the

present case and the same have been grossly misinterpreted by the

learned Single Judge while passing the impugned order.

17. Learned counsel appearing for the Opposite Party submits that

the specific portion of Plot No.444 measuring Ac 0.81 decimals and

Ac 0.61-1/3 decimals of the plot No.404 was mortgaged in favour

of the present Petitioner in the shape of a Sale Deed. The Opposite

Party had further stated that the present Petitioner instead of

restoring the land after repayment of the mortgaged money

attempted to take possession of the land and requested the Petitioner

to execute a sale deed in his favour. The Opposite Party No.1 filed

C.S. No.92 of 2007 before the leaned Civil Judge (Sr. Division),

Nimapara for declaration of right, title and confirmation of

possession and to declare the Sale Deed as a Mortgage Deed. The

Opposite Party No.1 further stated that during pendency of the suit,

as the Petitioner was occupying the suit land by force on the basis

of the void deed, the Opposite Party No.1 was constrained to file

the petition under Section 35 (2) of OCH & PFL Act to declare the

Sale Deed void and for eviction.

18. After considering the case of the respective parties, as presented

by them before the Collector, Puri and upon examination of the

materials on record, the Collector held that the RSD No.2045 dated

26th November, 2005 and the RSD No.256 dated 25th January, 2005

are void. The Collector, Puri in his order has already passed

necessary direction against the present Petitioner for eviction from

the suit land.

19. Learned Single Judge while adjudicating the issue has referred

to the provision of Section 34 of OCH & PFL Act, which has been

quoted herein below:

"Section 34 :

(I) No agricultural land in a locality shal1 be transferred or partitioned so as to create a fragment.

(2) No fragment shall be transferred except to a land- owner of a contiguous Chaka:

Provided that a fragment may be mortgaged or transferred in favour of the State Government, a co- operative society, a scheduled bank within the meaning of the Reserve Bank of India Act, 1934 or such other financial institution as may be notified by the State Government in that behalf' as security for the loan advanced by such Government, Society, Bank or Institution, as the case may be.

(3) When a person intending to transfer a fragment is unable to do so owing to restrictions imposed under sub-section (2), he may apply in the prescribed manner to the Tahasildar of the locality for this purpose whereupon, the Tahasildar shall, as far as practicable within forty-five days from receipt of the application determine the market value of the fragment and sell it, through an auction among the land owners contiguous Chakas at a value not less than the market value so determined.

(4) When the fragment is not sold in course of the auction, it may be transferred to the State Government and the State Government, shall, on payment of the market value determined under sub section (3), purchase the same and thereupon; the fragment shall vest in the State Government free from all encumbrances.

(5) Nothing in sub-sections (1) and (2) shall apply to a transfer of any land for such public purposes as may be specified by notification in this behalf by the State Government."

20. To understand the meaning of the word 'fragmentation', the

learned Single Judge has referred to the definition of the word

'fragmentation' as defined under Section 2(m) of the OCH & PFL

Act. The same is quoted herein below:

"2(m). "fragment" means a compact parcel of agricultural land held by a land owner by himself or jointly with others comprising an area which is less than:-

(i) One acre in the district of Cuttack, Puri, Balasore and Ganjam and in the Anandpur subdivision in the district of Keonjhar; and

(ii) Two acres in the other areas of the State;"

21. By taking into consideration the aforesaid two provisions in the

OCH & PFL Act, the learned Single Judge has come to a

conclusion that the case land which was transferred and is the

subject matter of dispute in this case is squarely covered by the

definition of 'fragmentation' as defined under the statute. Further

while adjudicating the matter, the learned Single Judge has

formulated two important questions, such as;

"(i) Whether the land sold by the Petitioner's vendor creates a fragment of consolidable land? and

(ii) Whether the Deed in question is a Mortgaged Deed of a Sale Deed?"

22. In reply to the first question, the learned Single Judge had

referred to the recitals in the Sale Deed available on record. Further

in the context of Question No.1, the learned Single Judge had

referred to a judgment of this Court in the case of Smt. Binapani

Sethi (supra), wherein it has been held that the land sold separately

and collectively measured less than one acre, which is the minimum

area prescribed for the district of Cuttack, can be sold without

permission of the Tahasildar. Therefore, there had been a clear

contravention of Section 34 of the OCH & PFL Act. Hence, the

Collector was justified in his conclusion that the transactions were

void.

23. Similarly, in the matter of Pradip Kumar Mangaraj (supra),

this Court has held that the Tahasildar lacks power to effect

partition of a Chaka over which the interests of the parties are joint.

24. While taking into consideration the recital in the Sale Deed as

well as the contention of the Petitioner's counsel is that the sale is

not creating a fragmentation of the consolidable land as the vendor

has sold only his share of land without carving it out, which means,

he contends that he has not sold the specific portion of the land,

rather his interest thereon. Further, in this case, the Sale Deed not

only specifies the extent of land the vendor has sold through the

Regd. Sale Deed, but he has also given the description of the lands

sold by indicating the names of the boundary tenants, as such the

learned Single Judge has further come to a conclusion that the

transfers under both the Sale Deeds are in respect of land measuring

less than one acre. Further the leaned Single Judge has also taken

note of the fact that both the Sale Deeds together would construe a

patch of land measuring more than one acre. In the said context, it

has been categorically observed by the leaned Single Judge that the

Petitioner does not claim that the lands sold are contiguous to form

a single piece of land measuring more than one acre. In view of the

aforesaid analysis, the learned Single Judge has rightly come to a

conclusion that the Sale Deed has been effected by contravening the

provision of Section 34 of OCH & PFL Act and as such both the

Sale Deeds are void.

25. It has also been rightly observed by the learned Single Judge

that the mutation of the interest of the Petitioner by the Tahasildar,

Kakatpur is unsustainable in law in view of the fact that the

aforesaid two Sale Deeds are void by operation of law. Therefore,

as a consequence thereof, the entry in the mutation ROR is also

illegal and void.

26. So far as the second question is concerned, whether the Deed in

the second case is a Mortgaged deed or sale Deed? Learned Single

Judge has taken into consideration the recitals in the Deed in

question. By referring to the provisions of Sections 91 and 92 of the

Indian Evidence Act, 1972, the learned Single Judge has rightly

observed that when there is a deed in existence, the oral evidence is

excluded. Therefore, the learned Single Judge was right in his

approach while observing the recitals of the terms and conditions in

the Deeds in question and the same are admissible only to

determine the nature and character of the documents particularly

with regard to the transaction whether the same was a Mortgaged

Deed or not? Consequently, the evidence available on record is

admissible and relevant for the purpose of determining the nature

and character of the deeds in dispute. The recitals in the Deeds are

available for consideration by the Court, which is required to be

examined and has been examined in the case in hand.

27. After careful examination of the Deeds involved in the present

case, the learned Single Judge has very fairly, judiciously come to a

conclusion that it is normally indicated in the Sale Deed that upon

receipt of a consideration money, the vendor shall execute the sale

deed in favour of the vendee thereby permitting the land to be

transferred in favour of the vendee, as such, the deeds involved in

the present case are nothing but Sale Deeds.

28. Having heard the learned counsel for the parties and after

careful examination of the records, deeds and documents and after

going through the impugned common judgement by the learned

Single Judge, this Court is of the considered view that the learned

Single Judge has not committed any error while refusing to interfere

with the order dated 22nd October, 2009 (Annexure-3) and

consequently dismissing both the writ petitions by a common

judgment dated 11th May, 2010 (Annexure-4). Accordingly, this

Court affirms the impugned common judgment dated 11th May,

2010 passed in both the writ petitions by the learned Single Judge.

29. In view of the above, both the Writ Appeals are found to be

devoid of merits, as such, the same are hereby dismissed. However,

there shall be no order as to cost.

(A.K. Mohapatra) Judge

(S. Muralidhar) Chief Justice

U.K. Sahoo/PA-cum-Secretary.