Kailash Chandra Lenka vs The Joint Commissioner
2023 Latest Caselaw 1987 Ori

             ORISSA HIGH COURT : C U T T A C K

                      W.P.(C) No.526 of 2003

                  An application under Article 226 & 227 of
                      the Constitution of India, 1950

Kailash Chandra Lenka                              : Petitioner(s)


                         -Versus-

The Joint Commissioner,                            : Opposite Party(s)
Settlement & Consolidation,
Bhubaneswar & Ors.

For Petitioner                              : M/s. S.P. Mishra,
                                                   S. Mishra, P. Sahu,
                                                   S.S. Satapathy
For Opposite Party Nos.1 to 3               : M/s. S.P. Panda,
                                                   Addl. Govt. Adv.

For Opposite Party Nos.4 to 6               : Mr. M. Mohanty,
                                                  Advocate


                                JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of hearing & judgment : 9.03.2023

1. Heard the submissions of learned counsel for respective parties.

2. Para-1 of the writ petition discloses that undisputedly after the Section 9 proceedings being dismissed vide Annexure-1, said orders were reversed in disposal of the appeals involved. The appeal orders have been

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again reversed by the revisional order in disposal of Revisions vide Annexure-3 impugned herein.

Advancing their submission respective counsel attempted to reiterate their stand right through the proceeding U/s.9 of the O.C.H. & P.F.L. Act proceeding.

3. In the process of hearing of the matter, factual narrations as narrated by Mr. Mishra, learned counsel for Petitioner have a clear disclosure that total land measuring to Ac.7.70decimals originally belonged to Bhikari Behera, Bhagaban Behera and Baidhar Behera in their joint recording. Since Bhagaban Behera and Baidhar Behera both died issueless, Bhikari Behera became the only survivor. Bhikari Behera had wife Jasoda and daughter Malati @ Kamala @ Sankhali. Jasoda wife of Bhikari Behera subsequently remarried to Sridhar Behera and that laid to the birth of Narana Behera a male child. It be stated here that Jasoda while marrying Sridhar Behera had already a daughter namely Malati. Thus the legal heirs of Jasoda and Sridhar Behera were Malati and Narana Behera. In the first instance Bhikari Behera in his survival had already sold Ac.3.93decimals of land to an outsider by remaining in possession of Ac.3.77dec. of land to the family. In the meantime Jasoda sold Ac.3.40dec. of land being the mother guardian of Malati to meet the necessities of Malati a minor then. This registered sale deed dtd.2.04.1947 claimed to not have been challenged as of now. This Court here records the contentions of Mr. Mishra, learned counsel for Petitioner that once the sale of Ac.3.40dec. remains undisputed, there hardly remained Ac.0.37 dec. of land, which can maximum be the subject matter in the objection case involved herein as well as in all the further proceeding arising out of the objection case. There is no denial to the

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above undisputed factual aspect either by Mr. Mohanty, learned counsel appearing for the private Opposite Parties or by Mr. Panda, learned State Counsel appearing herein. From reading the revisional order and keeping in view the rival contentions of the learned counsel for respective parties, this Court finds, there has been decision in respect to Ac.3.77dec. of land, which extent of land is not available at that point of time. This Court, therefore, finds, the revisional authority failed in appreciating the important aspect particularly the extent of land actually available for consideration and illegally involved land even sold in 1947. This Court, however, observes, even assuming that Malati and Narana Behera are the sole survivor of Jasoda, but they can maximum retain 0.37dec. of land with them and consequently deal with that extent of land and cannot lead their case beyond Ac.0.37 decimals of land in any circumstance irrespective of dispute, if any, irrespective of claim of any party involved right through the Section 9 of the O.C.H. & P.F.L. Act proceeding. All the authorities involved have failed in appreciating such grave aspect involved therein. In the process, considering that there is mechanical disposal of the revisional proceeding vide Consolidation Revision Case No.159/2000 to 164/ 2000 & 106/2001 to 109/2001 vide Annexure-3, this Court interfering in the impugned order at Annexure-3 sets aside the same. However since there is requirement of fresh hearing of the revision, this matter is remitted to the revisional authority to have his fresh revision exercise confining to the extent of land Ac.0.37decimals of vis-à-vis the right of the parties involved therein.

4. Both the parties are directed to appear before the trial Court along with a certified copy of this order on 3rd April, 2023.

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5. Considering the request of Mr. Mohanty, learned counsel for private Opposite Parties, for there is disclosure of additional facts and dealings in the meantime, there should be allowing of placing further pleadings and issues for consideration of the Revisional authority. This Court accordingly observes, since there is subsequent development involving the issue involved herein, it may be open to the parties involved to bring further pleadings to press their requirement, if any, even for further evidence by way of appropriate application. In such event the revisional authority shall also include a further question of remand of the dispute to the Section 9 stage, if necessary, looking to the contingency involved therein.

6. Writ Petition succeeds to the extent indicated hereinabove. No costs.

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

(Biswanath Rath) Judge Orissa High Court, Cuttack.

The 9th day of March, 2023// Ayaskanta Jena, Senior Stenographer