Kailash Chandra Sahu & Ors vs The Writ Application Involves The ...
2022 Latest Caselaw 4927 Ori

               ORISSA HIGH COURT : C U T T A C K

                         O.J.C. NO.5147 OF 2000

In the matter of an application under Articles 226 & 227 of the Constitution of India.



Kailash Chandra Sahu & ors.                                   : Petitioners

                                         -Versus-

State of Orissa & Others                                     :    Opp.Parties


For Petitioners                          :       M/s.A.Mohanty, T.Rath, S.Natia,
                                                 J.Sahu & H.K.Tripathy

For O.Ps.1 to 5                          :       Mr.S.Ghosh, AGA

For O.Ps.6(a) to 6(f)                    :       None

                           CORAM :
                           JUSTICE BISWANATH RATH

           Date of Hearing : 05.09.2022 & Date of Judgment : 21.09.2022

1.

The Writ Application involves the following prayer :-

"It is, therefore, humbly submitted that your Lordships be graciously pleased to admit the writ application, issue a Rule Nissi asking the Opp. Parties to show cause as to why the order under Annexure-2 shall not be quashed and if the Opp. Parties fail to show cause or show insufficient cause to make the said Rule absolute and issue a writ in the nature of Mandamus quashing the order under Annexure-2.

And or pass any other order/orders affording complete relief to the petitioners."

2. Reading the prayer portion and looking to Annexure-2 since there

arose confusion as to whether the Petitioners are permissible to challenge

Annexure-2 as a whole, a clear statement is made by Mr.A.Mohanty,

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learned senior counsel for the Petitioners that the Writ Application may

be confined to Revision Petition Case No.1043/1991. On perusal of the

position of the Parties in Revision Petition Case No.1043/1991, this Court

finds, the said R.P. Case involved State of Orissa represented through the

Collector, Puri, as the Petitioner and in the O.P. side, the following are

the Opposite Parties.

1. Addl.Settlement Officer

2. Ullasmini Dei alias Mohanty, W/o.Radhashyam Mohanty, Vill.-Guhalpur, P.S.-Konark, Dist.-Puri

3. Looking to the Cause Title of the Writ Application, this Court

finds, the present Petitioners and Opposite Parties are as follows :-

1. Kalilash Chandra Sahu

2. Rameshh Chandra Sahu

3. Subash Chandra Sahu

4. Suresh Chandra Sahu ..... Petitioners

-vrs-

1. State of Orissa represented through the Secretary, Revenue Department, Orissa.

2. Tahasildar, Nimapara

3. Revenue Inspector, Konarak

4. Commissioner, Land Records and Settlement, Cuttack

5. Addl.Settlement Officer, Puri

6. Bula Behera, S/o.Bisu Behera, Vill-KOnark, PS-Gop (Konark) Dist.-Puri since dead the following are the legal heirs.

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6(a).Padi Behera, aged about 86 years, W/o.Late Bula Behera

6(b).Khetra Mohan Behera, aged about 66 years, S/o.Late Bula Behera

6(c).Gobardhan Behera, aged about 61 years, S/o.Late Bula Behera

6(d).Jugal Charan Behera, aged about 51 years, S/o.Late Bula Behera

6(e).Laxmidhar Behera, aged about 46 years, S/o.Late Bula Behera 6(f).Surendra Behera, aged about 44 years, S/o.Late Bula Behera All are At-Konark Samili Srikanthapur, PO/PS- Konark, Dist.-Puri ..... O.Ps.

This Court records the statement of Mr.Mohanty, learned Senior

Counsel appearing for the Petitioners that the Petitioner in original stage

was the Vendor, who transferred the disputed property to the father of

these Petitioners through two sale deeds during pendency of Revision and

one after Revision got disposed of.

4. The basis of challenge to the aforesaid judgment, as submitted by

way of pleadings that the father of the Petitioners had purchased an area

of Ac.0.20 dec. from the Hal Plot No.995 under Khata No.643, vide

Registered Sale Deed dated 17.3.1993 from one Bula Behera who was the

recorded land owner. Similarly vide another sale deed dated 24.3.1993 an

area of Ac.0.10 dec. from the aforesaid plot was purchased by their father

from one Bilasini Nayak who allegedly had purchased the same from said

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Bula Behera vide Registered Sale Deed dated 17.3.1993. Subsequently on

15.11.1995 Bula Behera sold an area of Ac.0.10 dec. from the said plot to

the Petitioners, vide Registered Sale Deed. On the basis of the aforesaid

three Registered Sale Deeds, Petitioners here raised a claim that they had

acquired right, title and interest over the aforesaid properties and

therefore, the decision in the Revision Petition having been arrived in

their absence was not sustainable in the eye of law. Besides the above

according to the Petitioners pursuant to such sale transactions they were

staying over the case land by constructing house till they faced an

eviction proceeding in Encroachment Case No.13/2000. Having received

the notice of eviction the Petitioners could ascertain that the R.P.Case

No.1006/1991 instituted against their Vendor by the Government had

been allowed on 18.3.1994.

5. This Court here takes into account the plea of the State that the

Collector, Puri had instituted as many as sixteen Revision Cases under

Section 32 of the O.S.S. Act including R.P. Case No.1006/1991 against

the Vendor of the Petitioners. In the aforesaid Revision Case, the legality

and propriety of the order dated 10.2.1988 passed in Appeal Case

No.2247/133 of 1983 wherein in exercise of power under Section 22(2)

of the Act, the Appeal preferred by the Tahasildar, Nimapara was

disallowed and the Vendor of the Petitioners, namely, Bula Behera was

directed to be recorded the name of Bula Behera, as tenant with

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occupancy right with stitiban status. It is further contended that since the

Revision was taken up against the Vendor of the present Petitioners, who

was the recorded tenant as per the order passed by the Additional

Settlement Officer in Appeal as stated above, the question of providing

opportunity to the Petitioners did not arise at all in the hearing of the

Revision. These Petitioners simply step into the show of their Vendor got

the opportunity of contest in the Revision also remains undisputed.

6. From the rival contentions of the Parties, this Court finds,

the so-called Registered Sale Deeds referred to by the Petitioners in their

rejoinder executed by Bula Behera were dated 17.3.1993, 24.3.1993 &

15.11.1995. It is an admitted case of the Petitioners that the judgment in

the R.P. Case delivered on 18.3.1994 on contest in presence of the

Vendor, Bula Behera and the alleged Sale Deed was prepared on

17.3.1993 & 24.3.1993, i.e., during pendency of the Revision Petition.

But no such disclosure was deliberately made before the Revisional

Court. The third Registered Sale Deed was executed much after the

delivery of the judgment i.e., on 18.3.1994. Thus there was clear

suppression of fact at the instance of the Vendor at the stage of hearing of

the Revision. Besides the above, as it appears from the impugned

judgment, the plea sought to be raised by the present Petitioners was also

raised by the Vendor and it was thoroughly examined by the Revisional

Court.

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7. This Court here finds, the learned Revisional Court has held that

the Vendor of the Petitioners, namely, Bula Behera was not the

Jamabandi Holder. Therefore, recording of name in the Appeal Case was

contrary to law. Besides the Tahasildar, who is the custodian of Revenue

Records of the Tahasil, had denied the existence of Ekpadia issued in

favour of the father of the Vendor of the present Petitioners by means of

an affidavit in Revisional Court. The Hal Plot No.995 under Hal Khata

No.63 measuring an area of Ac.0.39 dec. which involves the alleged

purchase of land by the Petitioners correspondence to Sabbik Khata

No.450 and SAbik Plot No.1083. The Sabik status of land is "Anabadi"

and subsequently on the Hal Record of Right, suit land is kept as "Abad

Jogya Anabadi" Khata. Under such circumstances the Petitioners cannot

claim any right by virtue of the so-called Registered Sale Deeds, vide

Annexure-A/1 to the counter affidavit. The land in question originally

belongs to Ch. Jagannath Sahu, who was the ex-intermediary according to

the Record of Right of 1929. In course of hearing the judgment passed in

Title Appeal No.71/109 of 1985-81 (vide Annexure-D/1 to the counter

affidavit) was cited wherein while allowing the Appeal, the Additional

District Judge, Puri has held that Jamabandi in Rule-6 without

authentication is not genuine. Since the dispute involved in this Appeal

also involved a property of the same suit Village-Konark and the Records

of so-called ex-intermediary was not accepted by the Civil Court, no right

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vested with the Vendor of the Petitioners to deal with the Vendee vis-à-

vis the Petitioners so as to transfer right, title and interest by executing the

alleged Registered Sale Deed. This Court finds, all the aforesaid aspects

have been duly taken note by the Revisional Court.

8. In the above background of the matter and this Court since finds

the foundation of these Petitions based on three Sale Deeds, Sale Deeds

dated 24.3.1993 & 17.3.1993 having obtained during pendency of the

Revision undisputedly involving a clandestine attempt of the Petitioners

and their Vendor and last Sale Deed dated 15.11.1995 since obtained

much after the date of delivery of judgment in Revision on 18.3.1994 are

all not only clandestine transaction but unholy transaction in the

involvement of the Vendor of the Petitioners and that too, during

pendency of the Revision involved. In the circumstance, the allegation

and claim of the Petitioners herein remain unfounded and unjustified as

well.

9. The Writ Application thus stands dismissed but however no order

as to costs.

...............................

(Biswanath Rath, J.)

Orissa High Court, Cuttack.

The 21st September, 2022/M.K.Rout, A.R.-cum-Sr.Secy.