Orissa High Court
Bhumisuta Sahu vs Consolidation Officer on 21 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No. 104 of 2015
Bhumisuta Sahu .... Appellant
Mr. G. N. Mishra, Advocate
-versus-
Consolidation Officer, Binka- .... Respondents
Dungarpali, Sonepur and others
Mr. T.R. Meher, Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE CHITTARANJAN DASH
ORDER
Order No. 21.09.2022
05. 1. This writ appeal challenges an order dated 25th February, 2015
passed by the learned Single Judge, allowing the W.P.(C) No.1703
of 2006 filed by Respondent No.4.
2. While issuing notice in the present writ appeal on 26th March,
2015, this Court directed status quo to be maintained.
3. The land in question measures Ac. 2.350 decimal in three Chakas
under Holding No.113 of Mouza Gania, PS-Binkia, District-
Sonepur. The land in question belonged to one Lambodhar Sahoo,
who had two sons, namely, Rushi and Daitary. Tulsa Sahu was the
daughter of Rushi, whereas Yasoda and Bhumisuta were the two
daughters of Daitary. In the final Record of Right (RoR) of
Consolidation, the land in question was not recorded in the name of
Tulsa and accordingly questioning it, she filed a revision petition
before the Joint Commissioner, Settlement and Consolidation,
Sambalpur under Section 9(1) of the Orissa Consolidation of
Holdings and Prevention of Fragmentation of Land Act, 1972
(OCHPFL Act). The Joint Commissioner remanded the matter to
the Consolidation Officer, Binka- Dungarpali for a fresh
adjudication. In those proceedings, Bhumisuta, the present
Appellant, was the Opposite Party. She tried to bring on record a
Will dated 28th March, 1979 purportedly executed by Rushi
bequeathing Ac. 2.213 decimal in her favour.
4. Bhumisuta examined three witnesses in support of her stand. But,
the Consolidation Officer (CO) disbelieved the Will and directed
that the land be recorded in the name of Tulsa. The order was then
challenged before the Deputy Director, Consolidation by
Bhumisuta, the present Appellant. The appeal was allowed by
believing the Will executed by Rushi as put forth by Bhumisuta.
Tulsa then challenged the order of the Appellate Authority by filing
a revision petition before the Joint Commissioner, Consolidation.
After the revision petition was dismissed, Tulsa filed W.P.(C)
No.1703 of 2006, which ultimately came to be allowed by the
learned Single Judge by the impugned order dated 25th February,
2015.
5. Importantly, the learned Single Judge noted that the Will was not
earlier produced during the Consolidation operation but, only after
the remand to the CO. The learned Single Judge has discussed in
detail the suspicious circumstances surrounding the Will
purportedly executed by Rushi bequeathing the land in question not
in favour of his own daughter but in favour of his brother's
daughter, Bhumisuta (the Appellant). The depositions of the three
witnesses examined, have been discussed in detail by the learned
Single Judge, and found to be unsatisfactory and not acceptable to
establish the factum of due execution of the Will by Rushi. The
learned Single Judge noted that the Joint Commissioner had not
discussed the evidence relating to due execution and attestation of
the Will. Importantly, the learned Single Judge observed as under:
"11. xxx xxx xxx The principle envisaged in section 90
of the Evidence Act has absolutely no applicability to the
case in hand. The will is dated 28.03.1979 and it was
admitted in evidence on 30.04.2003. So the very first
condition that the document has to be 30 years old is not
fulfilled besides the settled position that the presumption
is not absolute. The discretion under section 90 of the Act
should not be exercised arbitrarily and the presumption
may be made when the elements in the section are
present and the document is on the face of itto be free
from suspicion. Thus the Joint Commissioner's view in
that regard is erroneous."
6. The learned Single Judge then proceeded to deal with the plea of
adverse possession and found that there were no pleadings fulfilling
the ingredients to sustain such a claim. It was observed as under:
"12...... The document of title having not been
established to have been duly executed and attested in the
eye of law and when no specific claim of adverse
possession by advancing necessary pleadings fulfilling
all other ingredients have been made by opposite party
no.4 both the appellate as well as revisional authorities
appear to have invented a third case which is not
permissible."
6. This Court has heard the submissions of Mr. G.N. Mishra,
learned counsel appearing for the Appellant and Mr. T.R. Meher,
learned counsel appearing for Respondent No.4 Ananda Sahu the
successor-in-interest of Tulsa.
7. The submission of Mr. Mishra is that the evidence of the
witnesses recorded by the CO in a summary manner ought to have
been discussed from that angle and should have been held to be
sufficient to support the Will.
8. The fact of the matter is that the Will was not produced during
the consolidation proceedings. When it was produced for the first
time before the CO on remand by the Joint Commissioner in 2003,
when it was purportedly dated 1979, it should have put the
authorities on caution before readily accepting the genuineness of
such document.
9. The learned Single Judge has given very cogent reasons on why
the circumstances surrounding the Will were suspicious and why it
should be disbelieved. Having carefully considered the impugned
judgment of the learned Single Judge in light of the submissions
advanced before this Court, it is plain that no grounds have been
made out to question the well-reasoned judgment of the learned
Single Judge. There is accordingly no merit in this writ appeal and
it is dismissed as such.
(Dr. S. Muralidhar)
Chief Justice
(Chittaranjan Dash)
Judge
S. Behera
