Purna Chandra Mishra (since dead), substituted by his LRs and others vs Commissioner, Consolidation and others

This matter involves a challenge to the impugned orders vide Annexures-2 and 3 being passed by the Authorities under the Orissa Consolidation

of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short the ""OCH&PFL Act""), thereby restoration of the order vide Annexure-

1.

Short background involved in this case is that the petitioners are the legal heirs of Dasarathi Mishra and his wife - Gouri Dibya, whereas the

private opposite parties belong to Raghunath, the adopted son of Baidyanath Mishra. Main branch - Baidhar Mishra had four sons, namely,

Kasinath Mishra, Lokanath Mishra, Gopinath Mishra and Baidyanath Mishra. Kasinath Mishra survived by Ramachandra Mishra and then

Ramachandra Mishra died leaving behind Dasarathi Mishra and his wife - Gouri Dibya. Similarly, Lokanath Mishra survived by Sriya Debi.

Gopinath Mishra adopted Gunanidhi who also died issueless. Baidyanath Mishra since remained issueless adopted Raghunath. Originally

Ramachandra Mishra, son of Kasinath Mishra had two sons, namely, Raghunath Mishra and Dasarathi Mishra. Since Raghunath was adopted to

Baidyanath Mishra, the brother of Kasinath Mishra, Dasarathi Mishra became entitled to the entire share of Ramachandra Mishra. The second

branch - Lokanath Mishra appearing to be the second son of Baidhar Mishra, one son, namely, Jogi who got married to Padma Dibya, Sriya Debi

was borne out to their wedlock. Similarly, the third branch - Gopinath Mishra though adopted Gunanidhi, but this adopted son died issueless,

therefore, the branch of Gopinath got extinguished. Baidyanath Mishra, the fourth son had no issue, thus adopted Raghunath, the grandson of his

brother - Kasinath. Therefore, it appears that the present petitioners represent the first branch whereas the private opposite parties represent the

fourth branch. Petitioners'' case is that the suit land was recorded jointly in the name of Dasarathi Mishra, father of the present petitioners, Padma

Dibya, W/o. Jogi Mishra, the second branch and Raghunath Mishra, adopted son of Baidyanath Mishra, the fourth branch. Dasarathi Mishra, the

father of the present petitioners died at an early age leaving behind Gouri Dibya, the wife, Purna Mishra, Damodar Mishra and Dukhishyam Mishra

as three sons and Haramani Dibya, a daughter. Purna Mishra died in the meantime and is being substituted by the legal heirs, i.e., petitioner

nos.1(a) to 1(e). Dukhishyam Mishra having died issueless much prior to the dispute being raised, Somanath, son of Raghunath was in charge of

the entire joint family property, taking advantage of which, he managed to record the share entitled to first branch together with the fourth branch in

1962-63 settlement operations. The present petitioners filed a petition under Section 9(3) of the OCH&PFL Act for recording of their names

involving the disputed property. The case of the private opposite parties is that the private opposite parties claimed exclusive right, title and interest

over the disputed land by virtue of a purported sale made by Gouri Dibya, the wife of Dasarathi Mishra in favour of Raghunath Mishra, the

adopted son of Baidhar Mishra in the year 1946. Further, the private opposite parties asserted their title on the ground that the properties of

Baidhar Mishra were amicably partitioned prior to settlement in the year 1929. As evident from the findings of original suit, the suit, i.e., O.S.

no.47 of 1965 got confirmed in Title Appeal no.72 of 1967. The private opposite parties also claimed that they got their names recorded in an

O.E.A. proceeding vide O.E.A. Case no.7794 of 1963-64. The Consolidation Officer disposed of the Objection Case No.674/96/2000 vide

order dated 11.12.2000, thereby allowing the Objection case in favour of the petitioners on the ground that the sale purported to have been made

by Gouri Dibya in favour of Raghunath Mishra was by virtue of an unregistered document and, therefore, no settlement record could have been

prepared on the basis of an unregistered sale deed and further being co-sharers no claim for adverse possession was maintainable, thereby

declining to accept the plea of the opposite parties on the basis of a previous partition. This Objection Case was heard along with Objection Case

No.723/143/2000 and another Objection Case No.746/166 of 2000 and were disposed of vide common order dated 11.12.2000, thereby the

Consolidation Officer while inclined to allow Objection Case No.674/96/2000, partly allowed the other Objection Cases which resulted in series

of Appeals including the petitioners and private opposite parties in Consolidation Appeal no.13 of 2001. This appeal was also taken up along with

several other appeals. Finally vide Annexure-2 the Deputy Director, Consolidation set-aside the order passed by the Consolidation Officer in

Objection Case no.674/96/2000. Petitioners being aggrieved by the appeal order, preferred Consolidation Revision No.31 of 2001. The

revisional authority upon hearing the parties while declining to allow the revision, confirmed the order passed by the appellate authority. Hence, the

present writ petition by the revisional petitioners, subsequently substituted by their legal heirs.

Summarizing the case of the petitioners, Shri Mishra, learned counsel appearing for the petitioners submitted that the entire case of the private

opposite parties finds supported from an unregistered sale deed executed by Gouri Dibya not entertainable on two grounds; firstly, the sale deed

remained unregistered, therefore, not admissible in the eye of law; and secondly, Gouri Dibya being the wife of Dasarathi Mishra had limited right

over the disputed property being a widow of a cosharer. Shri Mishra, learned counsel appearing for the petitioners further submitted that since the

petitioners raised a question on the acceptability of the sale deed, it was expedient on the part of the lower appellate Court to decide the said

question and draw its conclusion. It is thus contended that the lower appellate Court as well as the revisional Court have failed in appreciating such

a legal question. For the judgments of the appellate Court as well as the revisional Court being based mostly on invalid document, it is contended

that the foundation being removed, the superstructure has to naturally fall. It is also urged by Shri Mishra, learned counsel appearing for the

petitioners that the Courts below have failed in appreciating the benefit of other co-sharers for the order passed in the OEA proceeding, even

though they had not joined in the application for settlement. Shri Mishra, learned counsel also urged that the property involved in the Title Suit

creating a case of previous partition since completely different than the properties involved in the case at hand, no attachment to the previous

partition should have been given by the Courts below, in fact, there has been no previous partition of the disputed property. Placing reliance on the

decisions of the Hon''ble Apex Court as well as this Court in the cases of Yeswant Deorao Deshmukh vrs. Walchand Ramchand Kothari,

reported in AIR 1951 SC 16, Gorakhnath Dubey vrs. Hari Narayan Singh and others, reported in AIR 1973 SC 2451, Chairman-cum-Managing

Director, Coal India Limited and others vrs. Ananta Saha and others and Dhuma Khan vrs. Commissioner of Consolidation and others, reported

in 1997 (I) OLR 222, Shri Mishra, learned counsel appearing for the petitioners attempted to take support of the judgments referred to

hereinabove.

In spite of notice, nobody appeared to place the case of the private opposite parties.

Shri U.K. Sahoo, learned Addl. Standing counsel appearing for the opposite party no.1-State while seriously objecting the contentions raised

by Shri Mishra, taking this Court to the observations and findings of the appellate authority as well as the revisional authority, submitted that for the

concurrent finding of fact by two Courts, there is no scope for interfering in such orders. Further, findings attained by the Courts below are also

based on materials available on record and establishing a clear case against the petitioners. Shri Sahoo, learned Addl. Standing counsel, therefore,

requested this Court for rejecting the writ petition for having no ground.

Considering the rival contentions of the parties and taking into account the contentions raised herein, this Court finds, considering the case of the

respective parties, the original authority, the Consolidation Officer found the case property is the ancestral property of the objectors in Objection

Case No.674/96/2000. The original authority while answering Issue No.2 involved therein, also referring to decision involving Second Appeal

No.218 of 1969 came to observe that the family property had been amicably partitioned. Answering Issue No.3, the original authority has also

come to observe that the sale deed executed by Gouri Dibya was on behalf of the minor sons in the year 1946 in favour of Baidhyanath Mishra,

the son of Raghunath Mishra, but under the premises of unregistered document being relied, held the deed executed by Gouri Dibya in the year

1946 cannot be instrumental in transferring the right, title and interest of the first branch. It is under the above premises, the original authority came

to hold the objection case in favour of the petitioners. This Court observes, learned lower appellate court while deciding the Appeal framed three

issues (i) Whether the suit land is the joint family property of both the parties ? (ii) Whether the appellants have validly acquired right, title and

interest exclusively as per 1952 record of right ? and (iii) Whether the order passed by the learned Civil Court in O.S. No.47/65 has any legal

effect ? In dealing with all these three issues, the lower appellate court on appreciation of materials available on record came to hold that in 1962

R.O.R., the suit plots were recorded in M.S. Khata No.222 in favour of Somanath Mishra S/o.Raghunath Mishra Son of Baidyanath Mishra,

Narasingh Mishra, Son of Ganesh Mishra. Further during preparation of Land Register under Section 5(2) of OCH & PFL Act the corresponding

L.R. Khata No.35 has been recorded in favour of Krushna Prasad Mishra Son of Somanath Mishra, Kamala Mishra Wife of Somanath Mishra,

Sailabala Mishra, Wife of Binayak Mishra, Durga Prasad Mishra, Son of Jagannath Mishra, Manika Mishra Wife of Jagannath Mishra, Kismata

13 annas 8 pahis, Siba Krushna Mishra, Naba Krushna Mishra Son of Narasingh Mishra, Sailabala Mishra Wife of Narasingha Mishra, Kismata 4

Pahi under sthitiban status. From the suit record in T.S. No.7/1961 it also reveals, the partition between the predecessor of appellants and

respondents has taken place long before 1958 and as a result, there was already severance of joint family status resulting cosharers recording their

names in the Record of Right involving their respective properties. The suit land was recorded exclusively in favour of the predecessor of the

appellants and which aspect has never been challenged prior to initiation of the consolidation proceeding. Similarly, examining from another point of

view the lower appellate court has also come to hold that the suit land covers M.S. Khata No.222 vested to Government in the year 1963-64. As

per Section 39 of the O.E.A. Act, the Civil Court lacks jurisdiction to take up any such issue as the property was already vested. Since the

property was vested in the State Government free from all encumbrances, the O.E.A.Collector is the only competent authority to adjudicate such

matters and in fact, the O.E.A. Collector after due enquiry has already settled the land in favour of predecessor of the appellants, which otherwise

approves the parties were in separate mess and property, and therefore, the appellants have rightly come to acquire the right, title and interest in

respect of the suit land besides the order of the O.E.A. Collector has also not been challenged any further. Following the provision in Section 51 of

the OCH & PFL Act, the Consolidation Authority cannot sit over the order of the O.E.A. Collector unless the said order is set aside by any

competent court of law. Further on the question of unregistered sale deed, the lower appellate court also taking into consideration the rival

contentions and the materials available on record finding that the appellants were in possession of the suit land exclusively with repeated orders of

the competent authorities rightly held, no title could have been passed by virtue of an invalid transfer deed. It is under the above premises, the

appellate court while allowing the Appeal reversed the order passed by the Consolidation Officer involving Objection Case No.674/96/2000.

From the above narrations and perusal of the records placed herein involving the case, this Court has no hesitation to observe that the findings of

the lower appellate court being based on materials available on record remains unassailable. Taking into consideration the revisional order, this

Court since finds the revisional authority confirmed the above view of the lower appellate authority, this Court has no hesitation to also hold the

revisional order appropriate.

Under the circumstance, this Court finds no scope for interfering with the impugned orders under Annexures-2 & 3 in exercise of power under

Article 227 of Constitution of India and thus dismisses the writ petition for having no merit.