[Cites 2, Cited by 0]
Orissa High Court
Jiban Ballabha Mohanty & vs Prafulla Kumar Das And .... Opposite ... on 6 March, 2026
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
OJC Nos.6413 & 6414 of 1999
In the matter of an application under Articles 226 and 227
of the Constitution of India.
..................
OJC No.6414 of 1999
Jiban Ballabha Mohanty &
Others .... Petitioners
-versus-
Prafulla Kumar Das and .... Opposite Parties
Another
For Petitioner : Mr. A. Pal, Advocate
For Opp. Parties : Mr. T. Panigrahi, Advocate for
O.P. No.1
Mr. S.P. Das, ASC for O.P.
Nos.2 and 3
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:12.02.2026 and Date of Judgment:06.03.2026
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Biraja Prasanna Satapathy, J.
1. Heard Mr. A. Pal, learned counsel for the
petitioner, Mr. T. Panigrahi, learned counsel appearing
for the Opp. Party No.1 and Mr. S.P. Das, learned Addl.
Standing Counsel for the State.
// 2 //
2. Since the issue involved in both the Writ Petitions
is identical and challenge has been made to the orders
passed by the Appellate Authority in Appeal Case
Nos.97 and 98 of 1996 as well as the order passed by
the Revisional Authority in Revision Case No.290 and
291 of 1997 under Annexure-5 and 6, with parties
being same in both the Writ Petitions, both the matters
were heard analogously and disposed of by the present
common order.
3. It is the case of the petitioners that challenging
the sale deed executed by Lt. Narayan Mohanty, the
common ancestor of the present petitioners vide Sale
Deed No.2326 dated 23.03.1967 under Annexure-A
to the counter affidavit, as well as seeking partition
of the suit schedule Ka and Kha property, the
present petitioners filed O.S. No.49 of 1974-I in the
Court of Learned Sub-Judge, Puri. The suit was filed
by the present petitioners against Lt. Narayan
Mohanty and the vendees of the Sale Deed dated
23.03.1967.
// 3 //
3.1. It is contended that the aforesaid suit in O.S.
No.49 of 1974 was decreed in part by holding that
Defendant No.3 therein, is not the adopted son of the
Lt. Narayan Mohanty and preliminary decree of
partition was passed by allowing 2/3rd share in
favour of the present petitioners/plaintiffs.
3.2. While deciding issue No.5, learned Trial Court
held that the alienation of the suit land made by
Defendant No.1 in favour of Defendant No.2 and 4 to
7, is not for legal necessity and it wound not bind the
plaintiff/petitioners. It is contended that challenging
such judgment and decree passed in O.S. No.49 of
1974, the present petitioners filed F.A. No.59 of 1976
before this Court against Defendant No.1 and
Defendant No.3. Defendant No.2 and 4 to 7 did not
challenge the judgment and decree so passed on
28.11.1975 in O.S. No.49 of 1974.
3.3. The aforesaid First Appeal however was
dismissed on merit by this Court vide order dated
18.12.1987 under Annexure-3. However, during
// 4 //
pendency of the appeal, Defendant No.1-Narayan
Mohanty died in the year 1978. It is contended that
challenging judgment dated 18.12.1987, so passed
by this Court in FA No.59 of 1976, Defendant No.3-
Ashok Kumar Mohanty filed AHO No.6 of 1988
before this Court. This Court vide order dated
24.03.1993, placing reliance on the provisions
contained under Section (4)4 of the OCH and PFL
Act, 1972, though held the judgment and decree of
the learned Trial Court as well as learned Single
Judge in FA No.59 of 1976 having been abated, but
subsequently considering the interim application
filed in Misc. Case No.173 of 1993, this Court passed
a further order on 05.08.1994 under Annexure-1 by
holding that adoption of Defendant No.3 in the suit
so recorded by the Trial Court as well as Appellate
Court stands affirmed. Not only that judgment of the
Single Judge, affirming the decision of the learned
Trial Judge so far as it relates to properties of village
Gopinathpur as well as house located in Puri was
also affirmed.
// 5 //
3.4. It is contended that after disposal of the AHO
vide order dated 05.08.1994 under Annexure-1, Opp.
Party No.1 filed Objection Case No.1155 of 1995 and
1156 of 1995 under Section 9 of the OCH and PFL
Act with a prayer to record Suit Plot No.153/481
area Ac.0.180 dec. in his favour in Objection Case
No.1155 of 1995 and to record Suit Plot No.157 Area
Ac.0.104 dec. under Khata No.49, both in Mouza-
Bentapur taking into account the sale deed executed
by Lt. Narayan Mohanty vide RSD No.10099 dated
18.12.1970 and 2326 dated 23.03.1967.
3.5. However, both the objection cases were rejected
by the learned C.O., Puri vide order dated
14.11.1996 under Annexure-4. It is contended that
Opp. Party No.1 challenging the common order
passed on 14.11.1996 in Objection Case No.1155 &
1156 of 1995, moved the Court of learned Deputy
Director of Consolidation, Puri In Appeal Case No.97
and 98 of 1996.
// 6 //
3.6. Learned Deputy Director of Consolidation, Puri
vide a common order dated 24.07.1997 under
Annexure-5, when allowed both the appeals so filed
by the Opp. Party No.1, the present petitioners
challenging the same, moved the Commissioner,
Consolidation, Bhubaneswar in Revision Case
No.290 and 291 of 1997. But the Revisional Court-
Opp. Party No.3 without proper appreciation of the
petitioners' claim and the order passed by this Court
on 05.08.1994 in AHO No.6 of 1988, dismissed both
the Revision Petitions vide a common order dated
29.08.1998 under Annexure-6. Challenging the
common order passed in Revision Case No.290 and
291 of 1997, both the Writ Petitions have been filed.
3.7. Learned counsel for the petitioners vehemently
contended that taking into account the order passed
by this Court on 05.08.1994 in AHO No.6 of 1988
under Annexure-1, claim of the private Opp. Party
No.1, could not have been allowed by the Appellate
Authority-Opp. Party No.2 vide order dated
// 7 //
24.07.1997 under Annexure-5 and confirmation of
the same by Opp. Party No.3 while dismissing both
the Revision cases under Annexure-6.
3.8. Learned counsel for the petitioners contended
that Sale Deed No.2326 dated 23.03.1967, was the
subject matter of challenge in O.S. No.49 of 1974.
Learned Trial Court while decreeing the suit for
preliminary partition vide judgment and decree dated
28.11.1975, clearly held that such transfer made by
the Vendor-Narayan Mohanty in favour of the
Vendees, Defendant No.2, 4 to 7 were not for legal
necessity and would not bind on the
plaintiffs/petitioners. Such order passed by the Trial
Court on being challenged by Narayan Mohanty and
others in FA No.59 of 1976, the First Appeal was
dismissed by this Court vide judgment dated
18.12.1987 under Annexure-3.
3.9. However, this Court while dealing with AHO
No.6 of 1988 and vide order dated 05.08.1994 under
Annexure-1, affirmed the decision of the learned
// 8 //
Trial Court so far as it relates to the properties of
Village-Gopinathpur as well as the House located in
Puri Town is concerned. On the face of such order
passed by this Court on 05.08.1994 in AHO No.6 of
1988, learned Consolidation Officer rightly rejected
the claim of the private Opp. Party No.1 for recording
of the land in question situated in Mouza-Bentapur
in his favour vide order under Annexure-E to the
counter affidavit. But the Appellate Authority vide a
common order dated 24.07.1997 under Annexure-5
without proper appreciation of the order passed
under Annexure-1 allowed the claim of private Opp.
Party No.1. Similarly, the Revisional Authority also
dismissed both the Revision cases, so filed by the
present petitioners challenging the order of the
Appellate Authority vide order under Annexure-6.
3.10. It is contended that on the face of the order
dated 05.08.1994 in AHO No.6 of 1988 under
Annexure-1, the Revisional Court-Opp. Party No.3
could not have dismissed both the Revisions by
// 9 //
confirming the order passed by the Appellate
Authority-Opp. Party No.2 under Annexure-5. It is
accordingly contended that order passed by the
Revisional Court-Opp. Party No.3 under Annexure-6,
confirming the order passed by the Appellate
Authority under Annexure-5, requires interference of
this Court.
4. Learned counsel appearing for the private Opp.
Party No.1 on the other hand made his submission
basing on the stand taken in the counter affidavit. It
is contended that in O.S. No.49 of 1974, the present
petitioners/plaintiffs challenged the sale deed
No.2326 dated 23.03.1967 and no such challenge
was made to the sale deed executed by Lt. Narayan
Mohanty vide RSD No.10099 dated 18.12.1970, with
regard to Suit Plot No.153/481 of Area Ac.0.180 dec.
in Mouza-Bentapur.
4.1. It is also contended that even though this Court
vide order dated 05.08.1994 in AHO No.6 of 1988,
confirmed the Lower Court finding so far as the
// 10 //
property situated in Mouza-Gopinathpur and the
House situated in Puri Town, but no such order was
passed, so far as the suit land situated in Mouza-
Bentapur is concerned.
4.2. It is contended that Opp. Party No.1 basing on
the order passed by this Court on 05.08.1994 in
AHO No.6 of 1988, moved the Consolidation
Authority by filing objection under Section 9 of the
Act and with a prayer to record the suit land situated
in Mouza-Bentapur vide Suit Plot No.153/481 and
Suit Plot No.157. Private Opp. Party No.1 raised such
claim for recording taking into account the sale deed
executed by Lt. Narayan Mohanty vide RSD
No.10099 dated 18.12.1970 and RSD No.2326 dated
23.03.1967 and in view of the notification issued
U/s.4(4) of the Act.
4.3. It is contended that RSD No.10099 dated
18.12.1970 so executed by Lt. Narayan Mohanty,
was never challenged by the petitioners and it is also
not under challenge in O.S. No.49 of 1974. Even
// 11 //
though RSD No.2326 dated 23.03.1967 was
challenged in O.S. No.49 of 1974, but in view of the
order dated 05.08.1994 in AHO No.6 of 1988, the
decree passed in respect of the suit land situated in
Mouza-Bentapur was never affirmed.
4.4. Since Suit Plot No.153/481 in Mouza-Bentapur
so purchased by Opp. Party No.1 vide RSD No.10099
dated 18.12.1970 was never an issue in O.S. No.49
of 1974, the judgment and decree passed in O.S.
No.49 of 1974, so confirmed by this Court in FA
No.59 of 1976 and further order passed on
05.08.1994 in AHO No.6 of 1988, is not at all
applicable to such claim of the private Opp. Party
No.1 for recording of the land to his name which was
rightly allowed by the Appellate Authority-Opp. Party
No.2 vide order under Annexure-5, further confirmed
by the Revisional Authority with dismissal of the
Revisions so filed by the present petitioners under
Annexure-6.
// 12 //
4.5. So far as Plot No.157 under Khata No.49 in
Mouza-Bentapur is concerned, the preliminary
decree passed in O.S. No.49 of 1974, confirmed by
this Court in FAO No.59 of 1976, was never affirmed
by this Court in its order dated 05.08.1994 in AHO
No.6 of 1988. Since Suit Plot No.153/481, in Mouza-
Bentapur arising out of RSD No.10099 dated
18.12.1970, was never an issue in OS No.49/1974
and Suit Plot No.157, situates in Mouza-Bentapur,
was never affirmed by this Court in its order dated
05.08.1994 under Annexure-1, no illegality or
irregularity can be found with the impugned order
passed by the Appellate Authority and by the
Revisional Authority under Annexure-5 and 6 in both
the cases.
It is also contended that after disposal of the
AHO vide order dated 05.08.1994 by this Court, no
final decree proceeding has been initiated, to make
the preliminary decree final.
// 13 //
5. Having heard learned counsel for the parties
and considering the submissions made, this Court
finds that Lt. Narayan Mohanty the common
ancestor of the petitioners when transferred Suit
Scheduled "Ka" and "Kha" property in favour of
Defendant Nos.2 and 4 to 7, vide sale deed No.2326
dated 23.03.1967, challenging the sale deed as an
illegal sale deed and seeking partition of the Suit
Schedule "Ka" and "Kha" property, the present
petitioners filed O.S. No.49 of 1974 in the Court of
learned Sub-Judge, Puri. Transfer made by Lt.
Narayan Mohanty vide RSD No.10099 dated
18.12.1970, was never an issue in the aforesaid suit.
5.1. Even though Sale Deed No.2326 dated
23.03.1967 was never declared as illegal by the
learned Trial Court so affirmed by this Court in FA
No.59 of 1976, but a finding was given that such
transfer of the land by Lt. Narayan Mohanty is not
for legal necessity.
// 14 //
5.2. However, this Court in its order dated
05.08.1994 in AHO No.6 of 1988 under Annexure-1,
affirmed the judgment and decree so far as the suit
land situated in Mouza-Gopinathpur and House
situated in Puri Town is concerned. No such decree
has been passed and affirmed so far as the suit land
in Mouza-Bentapur is concerned.
5.3. Since private Opp. Party No.1 filed the
Objection Cases for recording of the suit land
situated at Mouza-Bentapur basing on RSD
No.10099 dtd.18.12.1970 and RSD No.2326 dated
23.03.1967, this Court taking into account the fact
that RSD dated18.12.1970 was never under
challenge, finds no illegality or irregularity with the
direction to record suit Plot No.153/481, in Mouza-
Bentapur in the name of private Opp. Party No.1 by
the appellate authority vide order under Annexure-5,
so confirmed by the Revisional Authority vide order
under Annexure-6.
// 15 //
5.4. Similarly, Suit Plot No.157 in Mouza-Bentapur
under Khata No.49, transferred by Lt. Narayan
Mohanty vide RSD No.2326 dated 23.03.1967, was
never affirmed by this Court while disposing the
AHO vide order dated 05.08.1994 under Annexure-1
and such a sale deed was never declared as illegal
either by Trial Court or by the Appellate Court, this
Court finds no illegality or irregularity with the
impugned order passed by the Opp. Party No.2
under Annexure-5, confirmed by Opp. Party No.3
vide order under Annexure-6 in that regard.
5.5. In view of the aforesaid analysis, this Court
finds no illegality or irregularity with the impugned
orders passed by Opp. Party No.2 and 3 under
Annexure-5 and 6 and not inclined to interfere with
the said orders and dismiss both the Writ Petitions.
6. Both the Writ Petitions stand dismissed
accordingly.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 6 March, 2026/Basudev
th
Signed by: BASUDEV SWAIN
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 07-Mar-2026 15:05:45
