Bruti Pradhan and Another vs Rampriya Pradhan (died) and Prasanna Pradhan and Others

B.K. Patel, J.—In this writ application, Petitioners have assailed the legality of Order Dated 5.7.2000 passed in Revision Case No. 671 of 1998 u/s 37(1) of the Orissa Consolidation of Holdings & Prevention of Fragmentation of Land Act, 1972 (for short ''the Act'') by Learned Joint Commissioner of Settlement & Consolidation, Sambalpur (for short ''the Commissioner'') setting aside the common order passed in Dispute case Nos. 7 of 1979 & 8 of 1979 by Assistant Consolidation Officer, Talab.

Case land was originally recorded in the name of Mahadev Pradhan who died issueless in the year 1969 leaving behind his widow Mathura who died in the year 1985. Petitioners are descendents of late Prafulla Pradhan whereas Opp. Parties are descendents of late Ambika Pradhan. Dispute Case Nos. 7 of 1979 & 8 of 1979 were initiated to adjudicate the rival claims of late Prafulla & late Ambika over the case land. Prafulla''s claim was based on registered adoption deed No. 17 dated 22.1.1948 executed by Mahadev & Mathura He also placed on record photographs & documents to substantiate the claim that he performed Mahadev''s ''Asthi Bisarjan'' at Allahabad. Ambika''s claim over the case land was based on registered gift deed No. 204 dated 10.1.1998. executed by Mahadev & Mathura. Ambika also produced deed of cancellation No. 308 dated 10.10.1952 purported to have been executed by Mahadev & Mathura to cancel the deed of adoption in favour of Prafulla. That apart, Ambika claimed to be in possession of the case land since the date of execution of gift deed in his favour. In support of their rival assertions, oral evidence was also adduced on behalf of Prafulla & Ambika. On appraisal of evidence on record, Learned Assistant Consolidation Officer, Talab by Order Dated 10.4.1980 upheld Prafulla''s claim of adoption & directed to record the case land in his name.

Learned Commissioner in passing the impugned order rejected the claim that Prafulla was the adopted son of Mahadev & Mathura & upheld the claim of Ambika to be in possession over the case land since the date of execution of gift deed in his favour & to have thereby acquired the by way of adverse possession. Consequently, order passed by Assistant Consolidation Officer, Talab was set aside & Consolidation Officer, Sambalpur was directed to correct the record in favour of the Opp. Parties.

In assailing the revisional order it was submitted by the Learned Counsel for the Petitioners that Learned Assistant Consolidation Officer disposed of Dispute Case Nos. 7 & 8 of 1979 on merits considering the evidence adduced by the parties. Finding in support of Prafulla''s claim was recorded upon appraisal of rival contentions Despite availability of provision for instituting appeal under the Act, the Petitioners chose to remain silent for about two decades before approaching the revisional authority u/s 37(1) of the Act. It is contended that the Learned Commissioner ought to have refrained from invoking revisional jurisdiction in view of inordinate delay in filing the revision. It is further contended that Learned Commissioner should not have interfered with the findings of fact recorded by the Assistant Consolidation Officer on the basis of evidence on record. There is no scope for reappraisal of the evidence by the revisional authority especially when the Petitioners did not exhaust the remedy of statutory appeal. It is submitted that adoption of Prafulla''s by Mahadev & Mathura in the year 1948 is admitted. However, stand of the Opp. Parties is that the adoption was cancelled. Referring to decisions of some of the High Courts it is contended that in view of admitted adoption there is no scope for the Learned Commissioner to hold that the adoption was cancelled. A valid adoption once made cannot be cancelled by the adoptive father & other parties thereto. Claim of the Opp. Parties over to the suit land is based on gift deed executed in favour of Ambika by Mahadev & Mathura. Admittedly, possession of predecessor-in-interest of Opp. Parties over to the case land was permissive. Moreover, materials on record do not indicate that pleadings & evidence from the side of the Opp. Parties in the dispute cases made out a case of adverse possession. In fact, materials on record do not indicate that Ambika''s possession over the case land was adverse or hostile against Prafulla. Learned Commissioner, without any basis recorded the finding of adverse possession in favour of the Opp. Parties.

A counter affidavit has been filed. Learned Counsel for the Opp. Parties argued that Section 37(a) of the Act does not prescribe any period of limitation for filing revision. Therefore, discretion exercised by the Learned Commissioner to entertain the revision is immune from criticism. It is further contended that Opp. Parties produced registered deed of cancellation by virtue of which adoption of Prafulla made by Mahadev & Mathura was revoked. Evidence on record does not indicate that Prafulla ever resided with Mahadev & Mathura. Considering the materials on record Learned Commissioner has rightly held that Ambika & his successors-in-interest remained in possession over the case land all along since 1952 & thereby acquired title by way of adverse possession.

Learned Counsel for the Opp. Parties relying upon certain judicial pronouncements made an attempt to urge that consolidation authorities have no jurisdiction to decide the question of adoption. However, such proposition has been negated by this Court in Jairam Samantray Vs. Baikuntha Samantaray and Others, wherein it has been held:

...Except in case where title is claimed on the basis of transactions inter vivos in most case title is claimed on the basis of relationship, say as son, father, mother, husband or wife etc. Each such question of relationship is a question pertaining to legal character or status. Don''t the consolidation authorities decide such question of legal character in cases after cases day in & day out? If then the consolidation authorities have jurisdiction to decide the question as to whether a person is son by birth, by what logic or law are they denied jurisdiction to decide if a person is son by way of adoption? Sonship is acquired either by birth or by way of adoption. They are the different modes of acquisition, If title to property as son by birth can be adjudicated upon by the consolidation authorities, we fail to understand why adjudication of claim to title as son by way of adoption should be out of bounds to them. We are, therefore, of the view that the statement of law that the consolidation authorities have no jurisdiction to decide the question of adoption, they being a question of status, is not correct. In almost every case, consolidation authorities are deciding the question of status but a declaration of the law to the effect that the consolidation authorities have no jurisdiction to decide the question of adoption, if such question arises ancillarily or incidentally for adjudication of right, title & interest in property, is insupportable...

In the present case, registered adoption deed in favour of Prafulla was executed in the year 1948, Said deed is allege to have been cancelled in the year 1952. Registered gift deed was executed in favour of Ambika in the year 1968. Dispute cases were raised in the year 1979. Final order in Dispute Case Nos. 7 & 8 of 1979 was passed on 10.4.1980. It appears that in Dispute Case No. 8 of 1979 Ambika was advised to file objection petition for mutation during Section 9(1) stage in the village. Admittedly, Ambika Pradhan filed neither objection at Section 9 stage nor appeal u/s 12 of the Act. Opp. Parties filed application u/s 37(1) of the Act in Revision Case No. 671 of 1998 on 8.7.1998 i.e. after lapse of eighteen years from the date of passing of the order in Dispute Cases. Alongwith revision application, Opp. Parties appear to have filed an application for condonation of delay in preferring the revision.

Section 37(1) of the Act reads as follows:

The Consolidation Commissioner may call for & examine the records of any case decided or proceedings taken up by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings & may, after allowing the parties concerned a reasonable opportunity of being heard make such order as he thinks fit.

Contentions raised on behalf of the present Petitioners against maintainability of the revision was dealt with & decided by the Learned Commissioner by observing as follows:

First of all I concentrate my attention on maintainability of the present revision raised u/s 37(1) of the Act by the Petitioners & vehemently opposed by the O. Ps. to its stand. It is evident that the litigation starts right from the year 1948 where & when it was told that an adoption deed was executed by Mahadev & Mathura in favour of Prafulla which did not see the light of the day for long other then & suddenly emerged in Consolidation operation at the time of preparation of the land register of Unit Jhankarpali emerged through dispute case No. 7/79 & 8/79 & concluded by the A.C.O. on the floor of a top & regular contest from all its angles & heavy opposition revolved round it. It is alleged that the claim & grievance of the parties were not considered properly from its four corners in instance of the relevant evidence laid down by them & the pros & cons of the matter was not considered & finalized by the A.C.O. holding the decision in favor of the predecessor of the O. Ps. It is true that the Petitioner & their predecessor Ambika remained silent all along & during entire operation held below but when there is strong opposition to present recording & also evident from the records on its perusal. I admit the revision u/s 37(1) of the Act applying the inherent jurisdiction granted by the statute & consider the same &.thus the question of limitation & maintainability of the present proceeding raised by the Learned advocate for the O. Ps. is disposed of accordingly

It is observed that Learned Commissioner while considering the maintainability of the revision in view of inordinate delay in filing the application u/s 37(1) of the Act has not assigned any reason for ignoring the delay in order to invoke revisional jurisdiction to interfere with valuable rights which had accrued in favour of the Petitioners. Learned Commissioner has also not taken note of the fact that Opp. Parties & their predecessor-in-interest Ambika did not challenge the order passed in Dispute Cases by filing statutory appeal before the competent authority.

Undoubtedly, no limitation has been prescribed for preferring an application u/s 37(1) of the Act. Therefore, jurisdiction to entertain revision by the Commissioner is wide. However, that does not mean that the power can be exercised in an unfettered manner. In Mansaram Vs. S.P. Pathak and Others, it has been held by the Hon''ble Supreme Court:

When the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time.

Scope & ambit of jurisdiction u/s 37 of the Act came for consideration before a Full Bench of this Court in Gulzar Khan Vs. Commissioner of Consolidation and Others, wherein it has been held:

Though Section 37 has conferred an unfettered-power, it is settled law that every power, be it administrative or judicial, has to be exercised in a reasonable manner, & the reasonable exercise of power inheres in its exercise within a reasonable time. This apart, no power is really unfettered; every power has to be exercised according to rules of reason & justice, not according to private opinion; according to law, & not according to humour. The exercise of discretionary power cannot be arbitrary, vague & fanciful; it has to be legal & regular.

In Sri Pratap Patnaik v. Commissioner, Consolidation & Settlement, Orissa, Bhubaneswar and Ors. 2009 (II) OLR 257 this Court has held that'' exercise of revisional power u/s 37(1) of the Act after passage of about nearly twenty years was improper & without jurisdiction. Similar view was also taken by this Court in Shri Abhaya Charan Mohanty v. State of Orissa and Ors. 2003 (Supp.) OLR 882.

Analyzing the scheme of the Act it has been observed by this Court in Kasinath Das v. Commissioner of Consolidation, Board of Revenue, Orissa 72 (1991) C.L.T. 878:

The power u/s 37(1) of the act vested with the Commissioner for the purpose of satisfying himself as to the regularity of the proceeding or as to the correctness, legality or propriety of any order passed by such authority, subordinate to him. Unless any order passed by a subordinate authority, suffers from such infirmities or unless the Commissioner is satisfied that the proceedings have been conducted irregularly, the order is not available to be varied nor the proceeding is available to be quashed. Section 37(1) does not contemplate the Commissioner to function as an original authority. If objections are raised at the Section 9 stage, the party against whom the objections are raised gets an opportunity to rebut the objections, if necessary, by leading evidence. The decision of the original authority is also available to be challenged in appeal u/s 12, of the Act. If the matter is agitated for the first time u/s 37, the party against whom objection is raised is deprived of such opportunity & besides by adoption of such procedure the very purpose of the Act is defeated as by resorting to successive applications u/s 37(1), the entire consolidation operation may be effectively checked & the very finality which is intended to be achieved expeditiously would be frustrated.

There is absolutely no explanation from the side of the Opp. Parties for not preferring appeal u/s 12 of the Act against the order passed by Learned Assistant Consolidation Officer. Therefore, obviously, Opp. Parties slept over the order passed in Dispute Case Nos. 7 & 8 of 1979 till filing of the revision before the Learned Commissioner. In Maguni Pradhan Vs. Commissioner of Consolidation and Others, , relied upon by the Learned Counsel for the Opp. Parties also it has been held:

Unless compelling & plausible circumstances are shown as to why the remedy available under the statute was not availed, the Commissioner would be slow to act u/s 37 of the Act.

Opp. Parties do not dispute the execution of registered adoption deed by Mahadev & Mathura in favour of Prafulla in the year 1948. However, deed of cancellation executed in the year 1952 is relied upon in order to deprive Prafulla of the status which he acquired by virtue of the adoption. It is not the case of the Opp. Parties that Prafulla''s adoption was not a valid adoption. It is well settled that status of an adopted son cannot be revoked by any subsequent instrument. A valid adoption once made cannot be cancelled. It has been held in Bhupati Nath Chakravarty Vs. Basanta Kumari Devi, :

Once a person is given in adoption he becomes transferred to the adoptive family & gets the status of an adopted son & the adoptive father cannot by any subsequent instrument alter the status that has been conferred on his as an adopted son.

In Deoki Nandan Ajudhia Parshad and Others Vs. Rikhi Ram and Others, also it has been held:

Adoption once completed has the effect of irrevocably transferring the adopted by from his natural family to the adoptive family & to confer upon the adoptee the same rights & privileges in the family of the adaptor as the natural legitimate son, except in certain cases like those relating to marriage, adoption, etc. It is undoubtedly open to the adopted son to renounce his right of inheritance in the adoptive family, but his status as adopted son can never be renounced by him.

In Mst. Asa Bai Vs. Prabhulal and Others, also it has been held:

A valid adoption once made cannot be cancelled by the adoptive father Or other parties hereto. It is not open to the adopted son to renounce his status as such & to return to his family of birth though he may renounce his right of inheritance in the adoptive family in which case the inheritance would go to the next heir.

The basis of possession of the Opp. Parties over the case land is the gift deed stated to have been executed in the year 1952. Therefore, Opp. Parties admit that initial entry of Ambika over the case land was permissive. It is well settled that a permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more. In this connection, decision of the Hon''ble Supreme Court in The State Bank of Travancore Vs. Aravindan Kunju Panicker and Others, may be referred to. On the basis of materials on record Learned Assistant Consolidation Officer disallowed the claim of adverse possession raised by the Opp. Parties. Having perused the materials on record, especially nature of pleadings & evidence of the Opp. Parties in support of the claim of adverse possession, there appears no cogent reason which could have prompted the Learned Commissioner to interfere with such findings of fact while entertaining the revision, in the circumstances narrated above.

In view of the above discussions, order passed by the Learned Joint Commissioner of Settlement & Consolidation, Sambalpur in Revision Case No. 671 of 1998 is found to be not sustainable in law. The order is liable to be quashed.

Accordingly, order passed by the Learned Joint Commissioner of Settlement & Consolidation, Sambalpur in Revision Case No. 671 of 1998 is quashed.

The Writ Petition is allowed.