Narendra Bhoe @ Jhankar vs Sitaram Choudhury (Since Dead)
2023 Latest Caselaw 15767 Ori

Orissa High Court

Narendra Bhoe @ Jhankar vs Sitaram Choudhury (Since Dead) on 8 December, 2023

Author: B.P. Routray

Bench: B.P. Routray

Signature Not Verified
Digitally Signed
Signed by: SANGRAM DAS
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Dec-2023 17:30:00



                                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                              WRIT PETITION (CIVIL) No. 14540 of 2015 & 14541 of 2015

                            (An application under Articles 226 & 227 of the Constitution of India)

                            W.P.(C) No. 14540 of 2015
                            Narendra Bhoe @ Jhankar                     .......        Petitioner

                                                                        Versus

                            Sitaram Choudhury (since dead)
                            through LRs & Others                        .......       Opposite Parties

                            W.P.(C) No. 14541 of 2015
                            Narendra Bhoe @ Jhankar                     .......        Petitioner

                                                                        Versus

                            Sitaram Choudhury (since dead)
                            through LRs and others                      .......        Opposite Parties

                            Advocate(s) appeared in this case:-
                             For Petitioner           :      Mr. R.K.Mohanty, Sr. Advocate
                                                             (in both cases)

                             For Opposite Parties         :        Mr.S.Ghose, Advocate for LRs of O.P.1
                                                                   Mr.U.K.Sahoo,
                                                                   Additional Standing Counsel
                                                                   (in both cases)

                                           CORAM : JUSTICE B.P. ROUTRAY

                                                           JUDGMENT

th 08 December, 2023 B.P. Routray,J.

1. Heard Mr. R.K. Mohanty, learned Sr. Counsel for the Petitioner, Mr. S. Ghose, learned counsel for the LRs of Opposite Party No.1 and Mr. Sahoo, learned ASC for State-Opposite Parties.

Location: High Court of Orissa, Cuttack

2. Since both Writ Petitions arise out of same order, they are heard together and disposed of by this common judgment.

3. The order of the Additional Commissioner of Settlement and Consolidation, Sambalpur dated 3rd July, 2015 under Annexure-9 is impugned in present writ petitions.

4. The facts are that, initially one Chamara Jhankar was the recorded owner of land measuring Acre 28.600 decimal in Khunti No. 101 of Hamid Settlement and the land was held with Jhankri status. The land was granted for performing Seva Puja of the deity. One Bahadur Jhankar was the son of said Chamara Jhankar. The Petitioner claims to be the adopted son of Bahadur Jhankar.

5. In course of time an area of Acre 8.220 decimals covering 16 plots was recorded in the name of Bahadur Jhankar in 1987 settlement operation as the balance land was acquired by the Irrigation Department. In OEA proceeding in Bebandobasta case No. 664 of 1988, order was passed in favour of the Petitioner namely Narendra Bhoe recording Acre 5.080 decimal and the balance property was recorded in the name of original Opposite Party No.1, namely, Sitaram Jhankar. It needs to be mentioned here that Sitaram Choudhury's claim is that he has purchased the entire land measuring Acre. 8.220 decimal from Bahadur Jhankar. Therefore, aggrieved with the order of OEA Collector, Sambalpur, Bebandobasta Appeal No. 03 of 1996 was filed before Sub-Collector by Opposite Party No.1, which was remanded to the OEA Collector. Aggrieved with the order, Petitioner filed OEA Revision No. 850 of 2002 before the Member Board of Revenue. The member by order dated

Location: High Court of Orissa, Cuttack

28th January 2005 directed to record the land in favour of the State holding that the land was vested with the State Government from the date of inception of Odisha Offices of Village Police (Abolition) Act, 1964 and no steps have been taken by the parties for settlement of the land under the provisions of this Act. Then the Petitioner preferred W.P.(C) No. 3003 of 2005 before this Court, which was disposed of by order dated 17th October 2008 holding that the Petitioner may apply under Section 5 of said Act before appropriate authority. Accordingly, the Petitioner filed Bebandobasta Case No. 01 of 2009, under Section 5 of the Odisha Offices of Village Police (Abolition) Act before the Tahasildar for settlement of property. The Tahasildar in his order dated 25th August 2010 settled half of the land i.e. measuring Acre 4.110 in favour of the Petitioner and the other half (Acre 4.110 decimals) was directed to be recorded in favour of the deity. Against the same, Opposite Party No.1 approached the Appellate Authority i.e. the Sub- Collector in Bebandobasta Appeal No. 05 of 2010. But Opposite Party No.1 failed in the appeal and the Sub-Collector by order dated 27th July 2012 upheld the order of the OEA Collector-cum-Tahasildar. It is relevant here to reproduce operative portion of the order of the Sub- Collector. The same is as follows:-

"XXXX .. Since the status of land is "Jhankari Chakri Mafi", the OEA Collector-cum-Tahasildar has rightly dealt this case under the provision of Orissa Offices of Village Police (Abolition) Act, 1964, as the direction of Hon'ble High Court is to consider in accordance with law. Accordingly, OEA Collector-cum-Tahasildar has settled 50% land in favour of Narendra Bhoe, S/O- Bahadur Jhankar on Rayati Status and rest 50% of lands : in favour of Gram Thakurani", Sebayat Narendra Bhoe, S/O- Bahadur Jhankar on "Stitiban Rayat"

status, so long as he continues the Seva Pua of the village

Location: High Court of Orissa, Cuttack

deity as provided under rule 3(0) of the Orissa Office of Village Police (Abolition) Act, 1964, subject to payment of required back rent and salami as the said Narendra Bhoe (said to be adopted son) is still performing Seva Puja of the deity.

Further OEA Collector-cum-Tahasildar, Sambalpur has rightly rejected the claim of the appellant as the transaction basing on unregistered deed (value more than Rs.100/-) is invalid under the provisions.

Hence, in view of the above points, the orders passed by OEA Collector-cum-Tahasildar, Sambalpur is upheld. .... XX .. XX.."

6. In the meantime, Opposite Party No.1 filed C.S. No. 129 of 2011 before learned Civil Judge (Sr. Division), Sambalpur praying to declare his right title interest along with confirmation of possession over the case land and also for permanent injunction. Learned Civil Judge (Sr. Division) dismissed the suit by judgment and decree dated 29th November 2014. The Opposite Party No.1 preferred appeal against the same in RFA No. 9 of 2015 before learned District Judge, Sambalpur, which is pending till date.

7. At this stage, Opposite Party No.1 applied before the Commissioner under section 15(b) of the Odisha Survey and Settlement Act for correction of the ROR. Learned Additional Commissioner by order dated 3rd July 2015 while dismissing the said revision directed the case land to be recorded in the name of State, which is subject matter of challenge in the present writ petition.

8. As stated above, the order of the Sub-Collector under the Odisha Offices of Village Police (Abolition) Act has attained finality being not

Location: High Court of Orissa, Cuttack

challenged in any higher forum. So the question arises for determination is, whether the exercise of jurisdiction by the Commissioner under the Odisha Survey and Settlement Act (OSS Act) to nullify the order of competent authority under the Odisha Offices of Village Police (Abolition) Act would be proper and sustainable ?

9. Before answering this question, it needs to be stated that pursuant to the direction of this Court dated 17th October 2008 passed in W.P.(C) No. 3003 of 2005, the Petitioner applied before the OEA Collector-cum- Tahasildar for settlement of the land in terms of the provisions under Section 5 of the Odisha Offices of Village Police (Abolition) Act. Undisputedly, the order passed in said proceeding by the Appellate Authority has attained finality in absence of any further challenge thereof. The order of the Sub-Collector as reproduced above specifically confirms the order of the Tahasildar to record the case land in favour of the Petitioner as well as the deity in equal share. It is not that the Additional Commissioner, Sambalpur has exercised his jurisdiction as per the Odisha Offices of Village Police (Abolition) Act. The proceeding initiated under Section 15(b) of the OSS Act by Opposite Party No.1 therefore appears completely unconnected to the subject and the jurisdiction exercised by the Additional Commissioner of Settlement and Consolidation under the OSS Act to nullify the order passed by the competent authority under the special statute i.e. Odisha Offices of Village Police (Abolition) Act, would certainly be held as illegal and without jurisdiction. On this score alone, the impugned order of the Additional Commissioner is liable to be set aside.

Location: High Court of Orissa, Cuttack

10. At this stage, it is submitted by Mr.Ghose that the status of the Petitioner as adopted son of Bahadur Jhankar having been rejected in the civil suit by learned Civil Judge, he lost his right to hold the land in his favour and therefore, recording of half of the land in his favour is not justified. In answering to the submission of Mr.Ghose, it is stated here that the status of the Petitioner as the adopted son was though rejected by learned Civil Judge but his status as Jhankri to perform Seva Puja of the deity has not been removed. The learned Civil Judge has not opined a single word in this regard. So what is submitted on behalf of Opposite Party No.1 that once the status of the Petitioner as adopted son of Bahadur is removed he would not be authorized to perform the Seva Puja, is not found correct in the facts of the case. The status of the Petitioner as a Jhankri of the deity and his performance of Seva Puja is never disputed by the Opposite Party in any of the proceeding. It is settled that the status of Jhankri is not heritable. This Court in Smt. Jhankaran (dead) vrs. Member, Board of Revenue, Cuttack, 1995 (II) OLR 453 have held that, Jhankari Jagir land is not heritable as it is only burdened with service. This Court fully agrees with such principle that Jhankar priest is not heritable and it is only burdened with the service. Therefore, even the status of the Petitioner as the adopted son of Bahadur Jhankar would be no more, then also his right to continue with the land for performing the services to the deity, would remain unaffected and shall continue.

11. Thus, looking from both angles no case is made out in favour of the Opposite Party and what is held by the Commissioner of Settlement & Consolidation to record the land in favour of the State is found

Location: High Court of Orissa, Cuttack

without any basis. It is seen that the Commissioner has made out a third case to record the land in favour of the State.

12. In view of the discussions made above, the impugned order of learned Commissioner, Sambalpur dated 3rd July, 2015 is set aside. Accordingly, the Writ Petitions are disposed of as allowed.

(B.P. Routray) Judge

Sangram Das, Jr.Steno