Orissa High Court
Sardar Sohan Singh @ Sohan Singh vs Sudhir Ranjan Toppo And Others .... ... on 6 February, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.18478 of 2014
Sardar Sohan Singh @ Sohan Singh .... Petitioner
Mr. N.K. Sahu, Advocate
-Versus-
Sudhir Ranjan Toppo and others .... Opposite Parties
Mr. P.K. Mohanty, ASC
Mr. K.K. Rout, Advocate for O.P. No.1
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:06.02.2024
1.
Instant writ petition is filed by the petitioner challenging the
impugned order dated 26th July, 2014 passed in connection with
Review Appeal No.44 of 2010 under Annexure-12 by learned
Additional District Magistrate, Sundargarh confirming the order
4th December, 2010 (Annexure-11) in RMC No.36 of 2010 of
learned OSD (LR), Panposh on the grounds inter alia that the
same is illegal, perverse and suffers from non-application of
judicial mind, hence, liable to be quashed.
2. Briefly stated, the disputed property is in respect of Plot
Nos.191/2 and 192 which was originally belonged to one Mangal
Bhumija and Mansingh Bhumija, who are Schedule Tribes and as
such, recorded in their names in CS RoR (Annexure-1) under
rayati status. In respect of Plot No.191/1 measuring an area of
Ac.0.34 decimal, one of the recorded tenants executed a sale
deed on 4th April, 1955 and alienated the same in favour of late
Hazara Singh, namely, father of the petitioner and such
transaction was effected before the onset of the Orissa Scheduled
Areas Transfer of Immovable Property (By Scheduled Tribes)
Regulation, 1956 (shortly called as 'the Regulation'). It is pleaded
that after the Regulation came into force, Review Misc Case No.1
of 1975 was registered against the father of the petitioner for his
eviction from the land purchased by him as it belonged to a
Schedule Tribe, however, the proceeding was dropped by order
dated 29th May, 1974 and 30th May, 1975 (Annexure-2) with a
conclusion therein that as after the purchase, he had been
declared as a raiyat under the OLR Act and for the transaction
having taken place prior to the commencement of the Regulation.
As per the petitioner, CS Plot Nos.191 and 192 situate adjacent to
each other and his late father was declared as a raiyat in respect
of Plot Nos.191/2 and 191/3 and 191/4 under Khata No.36/1 in
OLR Case No.11 of 1974 consisting of area Ac.0.60 decimal out of
which Plot No.191/3 measures Ac.0.31 decimal and refers to the
RoR issued to him at Annexure3. It is claimed that the father of
the petitioner after having acquired title over Khata No.36/1 and
while continuing possession over Plot Nos.191/1, 191/2, 191/3 and
191/4, sold Ac.0.24 decimal out of Plot No.191/3 to one Santosh
Kumar Agrawal keeping Ac.0.07 decimal with him. While matter
stood thus, as further pleaded, the father of opposite party No.1
purchased Ac.0.70 decimal out of CS Plot No.192 of area of
Ac.1.30 decimal corresponding to CS Khata No.67 from the
recorded owner, namely, Mangal Bhumija by way of a sale deed
dated 22nd January, 1978 (Annexure-4) and after such deed was
executed, since the other shareholder was not a signatory to it, a
deed of relinquishment dated 3rd August, 1971 came into being
confirming such sale in respect of Ac.0.70 decimal from Plot
No.192 and the petitioner refers to the said deed at Annexure-5.
It is also pleaded that the late father of opposite party No.1, after
having acquired interest over Ac.0.70 decimal, sold the entire
land on different dates obtaining permission from the competent
authority and it was between 23rd January, 1979 and 5th March,
1986 and the petitioner refers to a copy of the EC obtained from
the Sub-Registrar, Panposh dated 9th September, 2010 i.e.
Annexure-6 and one such transactions was in favour of the
petitioner measuring an Ac.0.10 decimal by a sale deed dated 5th
March, 1986 (Annexure-7) and after the aforesaid purchase, it was
mutated in his favour vide Mutation Case No.437 of 1995 upon
receiving the RI's report at Annexure-8 series and followed by
order dated 15th December, 1995 (Annexure-9) and later to the
mutation, construction of a residential building came up over Plot
No.192(B) corresponding to Hal Plot No.560(P), Hal Khata
No.54 lying adjacent to CS Plot No.191/3 with an area of Ac.0.07
decimal, in total, Ac.0.17 decimal. While the position was
continued as such, according to the petitioner, opposite party
No.1 taking advantage of a record of right wrongly prepared,
filed an application before the learned OSD (LR), Panposh under
Section 3-A of the Regulation claiming therein that his later father
had purchased Plot No.192, Khata No.67 with an area of Ac.0.85
decimal from the recorded owner, namely, Saiman Bhumij with
due permission from the competent authority, out of which,
Ac.0.60 decimal was transferred leaving Ac.0.25 decimal with
them under Hal Khata No.54 corresponding to Plot No.560,
whereafter, his father sold Ac.0.10 decimal to the petitioner and
accordingly, Hal RoR with an area Ac.0.15 decimal was recorded.
The claim of the petitioner is that the purchase is in respect of
Ac.0.70 decimal and not Ac.0.85 decimal, which as per the
petitioner, is not supported by any material evidence, the fact
which was taken judicial notice of by learned authorities below
but unfortunately, eviction was directed from the case land. The
claim of the petitioner is that there has been sufficient material on
record from the side of the petitioner to rebut the presumption
but it was not duly taken cognizance of and hence, resulted in
passing of the impugned orders under Annexures-11 and 12, which
are, therefore, liable to be interfered with and set aside.
3. Referring to the counter affidavit, it is pleaded by opposite
party No.1 that as per the draft khatian at Annexure-A/1 and RoR
issued in the name of his later father at Annexure-B/1, it is
suggestive of the fact that the purchase was in respect of Ac.0.85
decimal, possession in respect of which has all along been
peaceful and without any interruption. It is pleaded that during
the settlement operation, survey was conducted and a draft
khatian was prepared with an area of Ac.0.85 decimal and the
father of opposite party No.1 sold Ac.0.40 decimal to one
Santosh Kumar Agrawal and again Ac. 0.10 decimal to him
thereafter and with other two transactions besides one in favour
of the petitioner, leaving the rest Ac.0.25 decimal recorded as per
Annexure-C/1, considering which, it has to be held that the land in
occupation of the petitioner belongs to them, hence, learned
authorities below did not commit any error in directing eviction
therefrom.
4. A rejoinder affidavit is on record, referring to which, the
petitioner reiterated the plea that learned authorities below
though reached at a conclusion that the father of opposite party
No.1 had purchased Ac.0.70 decimal and sold the same to five
others but committed serious wrong to direct eviction vis-à-vis the
case land merely referring to the RoR concluding that an area of
Ac.0.15 decimal pertaining to Hal Plot No.560 Khata No.51
stands in the name of the recorded owner and as such, the
occupation by the petitioner is liable for eviction in accordance
with Section 3-A of the Regulation.
5. Heard Mr. Sahu, learned counsel for the petitioner, Mr. Rout,
learned counsel for opposite party No.1 and Mr. Mohanty,
learned ASC for State.
6. The purchase in respect of Ac.0.10 decimal from the father of
opposite party No.1 and issuance of mutation RoR vide order
dated 15th December, 1995 in Mutation Case No.437 of 1995 as
at Annexure-9 is on record, a fact which is not in dispute. The
alienations to the purchasers are also not in questioned except the
claim of opposite party No.1 that Ac.0.60 decimal was sold and
out of the remainder, Ac.0.10 decimal was alienated in favour of
the petitioner. The reference is made to the draft khatian at
Annexure-A/1 and a copy of RoR of 1994-95 at Annexure-B/1 by
opposite party No.1 to claim that rest Ac. 0.15 decimal was still
left, which is alleged to be in occupation of the petitioner.
7. As far as the proceeding in 1975 is concerned, it was dropped
by learned Sub-Collector, Panposh in Review Misc. Case No.1 of
1975 at Annexure-4 with a finding that the impugned transaction
was executed prior to the Regulation coming in force. It is at the
instance of opposite party No.1 that the action has been
reinitiated with a claim of unauthorized possession over Ac.0.15
decimal of land. In support of the contention, Mr. Sahu, learned
counsel for the petitioner relies on a decision of the Apex Court in
the case of Syed Yakoob Vrs. K.S. Radhakrishnan and others AIR
1964 SC 477 to contend that the impugned orders under
Annexures-11 and 12 by learned authorities below suffer from
perversity and unreasonableness and hence, deserves to be set
aside. It is contended by Mr. Sahu, learned counsel that by virtue
of record of right, neither title is created nor it stands extinguished
and any such entry therein merely carries a presumption of
correctness of it which is questionable and if it is proved by an
additional evidence in rebuttal, a Court is not to attach any
importance to such record of right and in the case at hand, it was
shown and satisfactory proved that the father of opposite party
No.1 had indeed purchased Ac.0.70 decimal only during his life
time, hence, there was no basis to record Ac.0.15 decimal in the
RoR and therefore, the order of eviction against the petitioner on
the basis of a purported record of right, the correctness of which,
has been sufficiently rebutted, could not have been directed and
apart from the citations referred to hereinbefore, placed reliance
on the case laws reported in 62 (1986) CLT 322 and 79 (1995)
CLT 507. To counter the same, Mr. Rout, learned counsel for
opposite party No.1 cited the following decisions, such as,
Ramkrishna Panda Vrs. Arjuno Padhano and others AIR 1963 Ori
29; Swaraswati Mohanty and others Vrs. Tirthananda Badu 1997
(II) OLR 325; State of Orissa Vrs. Janardhan Tripathy and others
87 (1999) CLT 673 and finally, Anadi Charan Sahu and others Vrs.
Madan Ojha and others 39 (1973) CLT 1013 to contend that a
record of right is a prima facie proof of title and has a
presumptive value as to title and possession unless the same is
proved to the contrary. The further contention is that every entry
in the record of rights shall be the evidence of the matter referred
to therein as held in Anadi Charan Sahu (supra) and shall be
presumed to be correct unless it is proved otherwise and
considering the settled position of law, the claim of the petitioner
that the father of opposite party No.1 has sold Ac.0.70 decimal is
unlikely to render any assistance in view of the RoRs while
opposing eviction for such unauthorized possession.
8. In Ramkrishna Panda (supra), the suit was for possession and
injunction and the decision was rendered in connection with a
transaction of sale deed and since the defendants therein and
particularly, defendant No.1 did not choose to examine the scribe
of the same, it was held that such evidence could not be read in
their favour and as such, the onus is failed to be discharged
without any rebuttal evidence in view of the presumption in
favour of the correctness attached to the entries in the record of
rights in favour of the plaintiff. It is settled law that the
presumption lies in favour of a record of right unless it is rebutted
with any evidence adduced. It is also a settled law that a record
of right does not create or extinguish title but possesses a
presumptive value which is what has been reiterated in
Swaraswati Mohanty (supra). Similarly, while dealing with a case
under the Orissa Tenancy Act, this Court in Anadi Charan Sahu
(supra) held and observed that Section 117(3) of the said Act
provides that every entry in the record of right shall be evidence
of the matter referred to therein and shall be presumed to be
correct if not proved to be incorrect by evidence.
9. The contention of Mr. Sahu, learned counsel for the petitioner
is that the decision of learned authorities below cannot be
sustained since the findings are unacceptable as it was reached
without considering the rebuttal evidence. Admittedly, the case of
opposite party No.1 hinges on Annexures-A/1, B/1 and C/1. It is
also not in dispute that there has been alienation of Ac.0.70
decimal of land by the father of opposite party No.1. The
purchase claimed to be in respect of Ac.0.85 decimal. As far as the
transactions are concerned, it is suggested that Ac.0.70 decimal of
land was purchased by opposite party No.1 and the same is
evident from Annexures-4, 5 and 6. Such alienation of Ac.0.10
decimal in favour of the petitioner in the year 1986 is also
revealed from Annexure-7 followed by issuance of mutation RoR
later to the order under Annexure-9 in Mutation Case No.437 of
1995. Such fact of purchase of Ac.0.70 decimal is also accepted by
learned authorities below upon a bare reading of Annexures-11
and 12. Merely, considering the record of right in favour of
opposite party No.1, as is suggested, learned authorities below
held the possession of the case land by the petitioner to be
unauthorized. As to how and wherefrom an area of Ac.0.15
decimal was left to be occupied by the father of opposite party
No.1 is not clearly made to reveal. It is a fact that a draft khatian
(Annexure-A/1) was prepared and published and it was followed
by the RoR in 1994-94 as per Annexure-B/1 and thereafter, the
RoR i.e. Annexure-C/1 but the Court is of the considered view
that before any such eviction is thought of, one has to be fully
convinced regarding the extent of land purchased by the father of
opposite party No.1 which is made to suggest with an area of
Ac.0.70 decimal. The sale deed, a copy of which at Annexure-4,
rather, reveals alienation of Ac.0.70 decimal. It is not clear as to
how the late father of opposite party No.1 claimed to possess
extra Ac.0.15 decimal after a sale of Ac.0.10 decimal in favour of
the petitioner is indeed a disputed question of fact, as according
to the Court, needs enquiry and determination. For claiming so
and demanding recovery of the land by an eviction, it has to be
demonstrated with clear evidence.
10. The Court is alive to the legal position discussed hereinabove
which is to the effect that a record of right has a presumptive
value of title and possession but rebuttal in nature. In the present
case, the petitioner opposed eviction and adduced evidence
through Annexure-4 to deny the claim of opposite party No.1. At
least, it can be said that a doubt was created with regard to the
extent of land claimed to have been purchased by late father of
opposite party No.1 showing that the same was in respect of
Ac.0.70 decimal only disposed of entirely in favour of others
including the petitioner corresponding to Ac.0.10 decimal. In an
eviction proceeding, without appreciating such a factual position,
taking a decision to eject the petitioner from the case land simply
relying the RoRs cannot be said to the correct approach. When
the claim of opposite party No.1 is challenged and it received a
dent clearly showing purchase of land Ac.0.70 decimal, a fact
which has been openly recognized by learned authorities below,
eviction could not have been directed straightaway barely
referring to the RoRs with a conclusion that a presumption is
attached to the same. Any Court or authority may act upon a
record of right as it possesses a presumptive value and cannot
overlook it easily but shall have to take notice of the reply and
rebuttal evidence. In the case at hand, the dispute centres around
the extent of land purchased by the father of opposite party No.1
and denied by the petitioner, a finding of fact and decision to rest
upon Annexure-4 in rebuttal. The Court is of the humble view
that learned authorities below ought to have desisted themselves
from directing eviction, morefully when, both have found the
transactions to be in respect of Ac.0.70 decimals. With such a
conclusion, the Court is of the further view that opposite party
No.1 has the liberty seeking appropriate relief according to law, if
any such possession is in respect of a land measuring Ac.0.15
decimal being a part of the purchase of Ac.0.85 decimal on the
field though not on paper but with such evidence received from
both sides, it was not justified on the part of learned authorities
below to order eviction in respect of the case land in occupation
of the petitioner. With the discussions as aforesaid and keeping in
view the settled position of law, the irresistible conclusion of the
Court is that the impugned decisions cannot be sustained in law.
11. Hence, it is ordered.
12. In the result, the writ petition stands allowed. As a necessary
corollary, the impugned orders under Annexures-11 and 12 in
RMC No.36 of 2010 and Review Appeal Case No.44 of 2010 by
the learned authorities below are hereby set aside.
13. In circumstances, however, there is no order as to costs.
(R.K. Pattanaik)
Judge
TUDU
