Orissa High Court
Krushna Chandra Sahu & Ors vs State Of Odisha & Ors on 20 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). No.4476 of 2012
Krushna Chandra Sahu & Ors. .... Petitioner(s)
Mr.N.P.Parija, Adv.
-versus-
State of Odisha & Ors. .... Opposite Party(s)
Mr.S.Ghose, AGA
Mr.S.K.Nanda, Adv.
CORAM:
JUSTICE BISWANATH RATH
ORDER
20.02.2023
Order No.
12 1. Heard the submission of Mr.Parija, learned counsel appearing for
the petitioners involving an order though indicated to have been passed
under Section 37(1) of the OCH & PFL Act in the disposal of
Consolidation Revision No.190 of 2009 vide Annexure-7 but in fact a
revisional order in exercise of power under Section 36 of the OCH &
PFL Act (for short "the Act")for this proceeding involved a challenge to
the order passed by the appellate authority in exercise of power under
Section 12 of the Act, in deciding Appeal Case No. 2 of 2009.
2. Factual background involved herein on the death of the father,
son sold a parcel of land in his individual capacity to the present
petitioner. At a subsequent stage, the remaining parcel of land was sold
to a third party though in the involvement of the son and the surviving
mother. It appears, after the death of the mother, the son brings out a
objection case in an attempt to get back the property involved in the
first sale on the premises of no involvement of the mother, being a
coparcener in the first sale involved. Decisions in the objection case
and appeal case are all in favour of the petitioner.
3. Taking this Court to the challenge involved herein, MrParija,
learned counsel appearing for the petitioners submitted that even
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assuming the first sale deed at the instance of son alone becomes void
for no involvement of the mother at that point of time however in the
meantime, the mother since dead, on the reversal of the property, the son
became the sole owner of such property. Mr.Parija, learned counsel
further also submits for mother never claiming her through sale deed
involved and now that the mother has already died, there is even no
possibility of challenge to such sale deed. It is alleged the revisional
authority failed in appreciating in this aspect and resulted in a wrong
judgment and order, impugned here.
4. Learned counsel appearing for the private opposite parties in his
attempt to support the impugned order while not disputing the fact that
the mother during her life time did not challenge such sale deed and for
her death in the meantime, there is no possibility of challenge to such
sale deed any further. However, taking to the findings in the impugned
order, learned counsel appearing for the private opposite parties
attempted to take support of the impugned judgment. Learned State
Counsel however has no objection to the claim of the petitioners.
5. Considering the rival contentions of the parties, this Court finds
Mr.Parija, learned counsel for the petitioner justifies in the claim on the
ultimate death of the mother, the son became the absolute owner of the
property. This Court here also finds mother in her life time did not
challenge to such sale deed nor even resisted such sale deed while
involving her in bringing the sale deed in respect of balance area. In the
circumstance, even though the sale deed was created in the individual
capacity of the son, for the change in his position in the meantime,
transfer of property in favour of the petitioner cannot be held to be
illegal. In the circumstance, this Court interferes in the impugned order
at Annexure07 and sets aside the same.
6. The writ petition succeeds.
sks
(Biswanath Rath)
Judge
