Kanak Durga Thakurani & Ors vs Umesh Chandra Mohapatra (Since Dead) Nirupama Mohapatra & Ors

Sashikanta Mishra, J

All these writ petitions involve common questions of fact and law and arise out of the same consolidation proceeding as well as civil dispute between the self-same parties in respect of the same property. As such, they were heard analogously and are being disposed of by this common judgment.

The petitioners in W.P.(C) No.8245 of 2003 call in question the order dated 08.07.2003 passed by the Commissioner, Land Reforms in Revision Case No.1079 of 1986 (2727 of 2003), whereby, the order of the Director of Consolidation was set aside and order of the Consolidation Officer directing recording of possession as 'Possession by illegal purchase' was restored.

The petitioners in W.P.(C) No.22200 of 2013, on the other hand challenge the order of the Consolidation Officer in recording note of possession 'Possession by illegal purchase' in the remarks column of the ROR as reflected in the orders passed in the objection cases, Revision case No.323 of 1985 and Revision Case No.1079 of 1986. So also, these petitioners have filed W.P.(C) No.27112 of 2013, wherein they assail the order dated 14.11.2013 passed by the learned Civil Judge (Senior Division), Jagatsinghpur in T.S. No.158 of 1998 rejecting their application under Section 10 read with Section 151 of the Code of Civil Procedure for stay of further proceeding of the suit.

For convenience, the petitioners of W.P.(C) No.8245 of 2003 are referred to as 'Sikim Tenants' and the petitioners of W.P.(C) Nos.22200 of 2013 and 27112 of 2013 as 'Marfatdars'.

The facts of the case in W.P.(C) No.8245 of 2003, are as follows:-

The dispute relates to Sabik Plot No.1231 measuring Ac.0.24 decimals under Sabik Khata No.122 of village Tirtol, which corresponds to L.R. Plot Nos.1439 and 1440 under L.R. Khata No.94. Said land was originally recorded in the name of the deity, namely, Kanak Durga Thakurani, through its Marfatdar Laxmidhar Ray, with a note of possession in favour of one Siba Das as a Sikim tenant.

It is stated that after the death of the Sikim tenant Siba Das, his sons Jagu and Fagu succeeded him and Fagu subsequently gifted the property by way of a registered gift deed dated 13.02.1943 in favour of one Kusa Das. It is also stated that one Paramananda Das claiming to be adopted son of Jagu Das executed a registered sale deed dated 02.02.1957 in favour of one Surendra Mohapatra, predecessor of the present petitioners, in respect of Ac.0.12 decimals out of the said plot. Subsequent transactions by way of relinquishment and re-transfer of small extents are also said to have taken place.

During consolidation operations, objection cases being Nos.2419/1967, 3181/829 and 2457/105 were filed by the parties claiming right, title and interest over the said plots. The Consolidation Officer, by a common order dated 29.08.1983 held that Sikim tenancy was not heritable and transferable in absence of proof of custom and directed deletion of Sikim status, but ordered recording of possession as (Possession by illegal Purchase).

Being aggrieved, the matter was carried in revision under Section 37(2) of the OCH & PFL Act before the Director of Consolidation in Revision Case No.323 of 1985, who, by order dated 27.12.1985, interfered with the order of the Consolidation Officer acknowledging valid possession of the petitioners.

Thereafter, the order of the Director of Consolidation was challenged in Revision Case No.1079 of 1986 before the Commissioner, Land Reforms under Section 37 (1) of the Act, who, by order dated 08.07.2003, set aside the same and restored that of the Consolidation Officer inter alia finding that the revision before the Director was not maintainable. Assailing the order of Commissioner, Land Reforms, the petitioners (Sikim tenants) have approached this Court in W.P.(C) No.8245 of 2003.

In W.P.(C) No.22200 of 2013, the petitioners, who are the Marfatdars of the deity, assail the foundation of the aforesaid transactions and the consequential entries made in the ROR. According to them, the gift deed dated 13.02.1943 and the sale deed dated 02.02.1957 are void, inoperative and without legal sanction, inasmuch as a Sikim tenant had no transferable right at the relevant point of time. It is also stated that the consolidation authorities exceeded their jurisdiction in directing recording of possession through 'illegal purchase' which, according to them, is impermissible in view of the statutory provisions and the instructions issued by the Board of Revenue.

The petitioners in W.P.(C) No.27112 of 2013, who are also plaintiffs in T.S. No.158 of 1998, have filed the petition stating that in view of pendency of W.P.(C) Nos.8245 of 2003 and 22200 of 2013 involving same issues relating to title, validity of transactions and entries in the ROR, the learned trial Court ought to have stayed further proceeding of the suit by invoking the provisions of Section 10 read with Section 151 of the Code of Civil Procedure without rejecting their application.

Counter Affidavit has been filed by Opposite Party Nos. 4(a) to 4(c) and 5(a) to 5(b) in W.P.(C) No.8245 of 2003 stating that the disputed property originally stood recorded in the name of the deity, namely Kanak Durga Thakurani under 'Bajyapti Stitiban' status through Marfatdar Laxmidhar Ray and one Siba Das was recorded as Sikim tenant. It is stated that Siba Das died leaving behind his two sons, namely Jagu and Fagu, of whom Jagu died issueless and Fagu was unmarried.

It is further stated that the claim of the present petitioners is based on two transactions, namely the gift deed dated 13.02.1943 executed by Fagu Das in favour of Kusa Das and the sale deed dated 02.02.1957 executed by Paramananda Das in favour of Surendra Mohapatra. It is also stated that both the transactions are void ab initio, inasmuch as a Sikim tenant had no transferable or heritable right at the relevant point of time. It is contended that Paramananda Das is not the son of Jagu Das and his status has not been established and therefore, the sale deed executed by him is a sham transaction. oblique motive to grab the property of the deity. According to them, on the strength of such illegal and void transactions, no right, title or interest could have been acquired by the predecessor of the petitioners.

Heard Mr. S. Rath, learned counsel appearing for the Petitioner in W.P (C) No.8245 of 2003; Mr. S.P. Mishra, learned Senior Counsel with Mr. T.K Mishra, learned counsel appearing for the Petitioner in W.P (C) No.22200 of 2013 and W.P (C) No.27112 of 2013 and Mrs. J. Sahoo, learned Additional Standing Counsel for the State.

Mr. S. Rath, learned counsel appearing for the Sikim tenants would submit that the order dated 08.07.2003 passed by the Commissioner, Land Reforms is not sustainable. He submits that the Commissioner exceeded his jurisdiction in interfering with the order passed by the Director of Consolidation in exercise of revisional power. According to him, once the Director of Consolidation had examined the legality of the order of the Consolidation Officer and directed maintenance of possession in favour of the petitioners, the Commissioner could not have reopened the same by holding that the revision before the Director was not maintainable.

He also submits that the findings of the Consolidation Officer treating the possession of the petitioners' predecessor as illegal is contrary to the materials on record and the settled position of law. He submits that the petitioners' predecessor acquired possession through registered documents and such possession could not have been labelled illegal in a summary consolidation proceeding. He further submits that the consolidation authorities are not competent to adjudicate upon the validity of registered deeds and the issue ought to have been left to be decided by a competent civil Court.

Per Contra, Mr. S.P. Mishra learned Senior counsel appearing for the Marfatdars (Petitioner in W.P (C) No.22200 of 2013 and W.P (C) No.27112 of 2013) would submit that the claim of the Sikim tenants (petitioners in W.P.(C) No.8245 of 2003) is founded upon transactions which are void ab initio and incapable of conferring any right, title or interest. He submits that admitted position on record is that Siba Das was a Sikim tenant under the deity and, at the relevant point of time, such tenancy was neither heritable nor transferable in absence of any proof of custom or usage. Therefore, according to him, the gift deed dated 13.02.1943 executed by Fagu Das and the subsequent sale deed dated 17.06.1957 executed by Paramananda Das did not convey any valid title to the transferees.

Mr. Mishra would also submit that the Consolidation Officer, upon consideration of the materials on record has held that neither Surendra Mohapatra nor Kusa Das acquired any valid right, title or interest over the disputed land and, therefore, the finding having been affirmed by the Commissioner in exercise of power under Section 37(1) of the OCH & PFL Act, does not warrant any interference. According to him, the Director of Consolidation committed error in interfering with the reasoned order of the Consolidation Officer by proceeding on an erroneous premise that the registered documents unless set aside by a civil court, must be given effect to.

He further submits that a void document need not be set aside by a competent Court and can be ignored altogether. In support of such contention, Mr. Mishra submits that the transactions which are void ab initio do not create any right and therefore, the consolidation authorities were well within their jurisdiction to examine the validity of such transactions while adjudicating the question of right, title and interest of the parties.

He also submits that the consolidation authorities have been vested with the jurisdiction to determine right, title and interest in respect of the land and once such determination has attained finality the same operates as res judicata between the parties. Thus, the civil Court could not have reopened the issue of title and the learned trial Court ought to have stayed further proceedings of the suit in view of pendency of the writ petitions involving identical issues.

Assailing the direction of the Consolidation Officer as affirmed by the Commissioner to record possession of the opposite parties as 'illegal possession', Mr. Mishra submits that such a course is impermissible in law. According to him, once it is held that the transactions are void and the opposite parties have not acquired any title, mere possession, if at all, cannot be recognized or protected by making an entry in the remarks column of the ROR. He further argues that such entries have no evidentiary value and are contrary to the instructions issued by the Board of Revenue.

He also contends that the claim of adverse possession is not available against the deity, which is a perpetual minor and in absence of any specific pleading or proof, no such right can be claimed by the petitioners in W.P (C) No.8245 of 2003.

Mrs. J. Sahoo would submit that the consolidation authorities have acted within the framework of the statute. According to her, the Consolidation Officer as well as the Commissioner have exercised jurisdiction vested in them under the provisions of the OCH & PFL Act while examining the question of right, title and interest of the parties. She submits that the revisional power under Section 37(1) is wide enough to correct any illegality or impropriety committed by the subordinate authority and, therefore, the Commissioner was justified in interfering with the order passed by the Director of Consolidation. She further submits that the entries made in the ROR are only for fiscal purposes and do not finally determine title, which is always subject to adjudication by a competent civil Court.

After hearing learned counsel for parties and upon perusal of the case records, this Court finds that the issue that arises for consideration is, whether the Commissioner, Land Reforms was justified in setting aside the order passed by the Director of Consolidation under Section 37(2) of the OCH & PFL Act on the ground that the same was without jurisdiction.

At the outset, it is to be noted that the Consolidation Officer, while deciding the objection cases, held that Sikim tenancy was neither heritable nor transferable in absence of proof of any custom basing on the judgment of this Court in the case of Chorapani Muna V. Gouri Devi & Others, reported in 1960OJD 404:1961 CLT 27 and accordingly, directed deletion of Sikim status and recording of possession of the transferees as 'possession by illegal purchase'. Said order was not challenged in appeal under Section 12 of the Act.

The Opposite Parties, however, preferred revision before the Director of Consolidation under Section 37(2) of the Act, who, upon consideration of the materials on record, interfered with the order of the Consolidation Officer and directed maintenance of possession in favour of the transferees primarily on the ground that the registered gift deed and sale deed had not been set aside by the competent civil Court. Thereafter, the Marfatdar filed revision under Section 37(1) of the Act. The Commissioner, Land Reforms, in exercise of power under Section 37(1) of the Act, interfered with the order of the Director and restored the order of the Consolidation Officer holding inter alia that the revision before the Director was not maintainable and that the order of the Director was without jurisdiction.

Upon careful reading of the impugned order passed by the Director as well as the Commissioner, Land Reforms, this Court finds that the Commissioner, while setting aside the order of the Director has proceeded on the premise that since no appeal under Section 12 of the Act had been preferred against the order of the Consolidation Officer the revision before the Director under Section 37(2) was not maintainable.

As already stated, the Marfatdars of the deity were the original objectors before the Consolidation Officer. The objection was allowed in their favour. Though, the possession of the opposite parties being Sikim tenants was acknowledged but same was described as being based on illegal purchase.

Feeling aggrieved, the Sikim Tenants, instead of preferring appeal as provided under Section 12 of the Act, invoked the revisional jurisdiction of the Director under Section 37(2) of the Act. The question is, whether the statutory remedy could have been bypassed. Further, what would be the effect of bypassing such statutory remedy. In a recent judgment delivered by this Court relying upon two Division Bench judgments, it was held that invoking the revisional jurisdiction without exhausting the statutory remedies is permissible only if genuine grounds for such non-prosecution of the remedies are demonstrated. Reference may be had to the judgment of Niranjan Satapathy & Others V. Benudhar Satapathy & Others (W.P.(C) No.20394 of 2009).

Reading of the order passed by the Director under Section 37(2) of the Act reveals that the Director has noted that no appeal was filed against the order of Consolidation Officer but the reasons for entertaining the revision despite non-filing of appeal were not spelt out at all. In the further revision filed under Section 37(1) by the Marfatdars of the deity, the Commissioner took note of such fact and held, according to this Court rightly, that since the Consolidation Officer's order passed in Section 9(3) objection case has not been set aside, it has become final. It was further held that when the statute provides appeal against such order and the provision has been ignored by the Sikim tenants, the proceeding under Section 37(2) of the Act before the Director was not maintainable. The order of the Director was therefore, held without jurisdiction and invalid. This Court fully concurs with such reasoning of the Commissioner for the reasons already indicated.

It has been argued on behalf of the Marfatdars of the deity that in view of the law prevailing at the relevant time Sikim right was neither heritable nor transferable and therefore, the gift deed as well as the sale deed are ab initio void without requiring any declaration from the competent Court. In other words, these instruments can be ignored.

This Court does not deem it proper to go into the question of nullity or otherwise of the instruments in question but notes that the argument made on behalf of the Marfatdars of the deity as above cannot be considered for the reason that the Marfatdars of the deity have themselves filed a suit seeking a declaration that the instruments are invalid and not binding on them. So, having themselves approached the Civil Court seeking declaration, they cannot obviously be allowed to make a contrary argument before this Court. Obviously, no party can be permitted to approbate and reprobate at the same time. As to the correctness of the order passed by the Consolidation Officer, this Court would refrain from passing any comment as the self-same issue is involved in the pending civil suit. This Court also refrains from making any observations as regards maintainability of the suit.

Since this Court is not inclined to interfere with the impugned order passed by the Commissioner, there is no reason to stay the suit. The impugned order passed by the learned Civil Judge (Senior Division) in T.S. No.158 of 1998 therefore, does not warrant any interference. W.P.(C) No. 8245 of 2003 is therefore, dismissed.

In view of the decision rendered in W.P.(C) No. 8245 of 2003 and W.P.(C) No. 27112 of 2013, W.P.(C) No.22200 of 2013 is disposed of accordingly.