AI Structured Summary
Not yet generated for this judgment
Judgment
Biswanath Rath, J.
This writ petition involves a challenge to the impugned order dated 23.11.1998 passed by the Commissioner Consolidation in the Consolidation
Revision Case No.400/90 as appearing at Annexure-1. Â
Short background involved in the case is that the petitioners filed number of objection cases under Section 9 of the Orissa Consolidation of Holdings
and Prevention of Fragmentation of Land Act, 1972 (hereinafter called as the Act, 1972) to get the disputed properties recorded in their favour.
Similarly, the opposite party no.1 and the opposite party nos.2 to 9 & 11 being the purchasers also filed number of objection cases to get the disputed
properties recorded in their favour. The opposite party no.10 was impleaded as his name, was wrongly included in the settlement khatian. Even though
he had no interest on the disputed property, all the cases were heard analogously and disposed of by the common order dated 28.02.1989 thereby the
Consolidation Officer directed to record the disputed property in favour of the petitioners and the claim of the opposite party no.1 and his purchasers
were disallowed. The opposite party no.1 preferred Consolidation Appeal No.7 of 1989, which was dismissed by the Deputy Director, Consolidation,
Range-1, Cuttack by the judgment and order dated 24.3.1990. The opposite party no.1 preferred Consolidation Revision No.400 of 1990.
The revision petition having been allowed giving rise filing of the present writ petition by the petitioners. The pleadings further reveals that during
pendency of the revision before the learned Commissioner, one of the contesting parties Akshya Kumar Sahu, the opposite party no.8 in the revision
died and his legal heirs having not been substituted, it appears, the revision so far it relates to opposite party no.8 got abated. Petitioners’ claim that
dispute having involved determination of the right, title and interest, Akshya Kumar Sahu being a purchaser from one of the co-sharer, abatement
involving the opposite party no.8, will be amounting to total abatement of the revision. It is also further urged that for the revisional order involving a
dead person, the judgment also otherwise becomes a nullity and the order passed by the original authority as well as the appellate authority are
automatically revived. To make the fact straight the petitioners contended that one Raghunath Panda, the original branch had three sons namely
Markanda, Bhabani & Gobinda. The branches of Bhabani & Gobinda were not interested in the disputed property by succession.
Accordingly, only four petitioners were claiming property as the successors of Kulamani, therefore, the father of the petitioners 1, 2 & 3 and husband
of the petitioner no.4 on the premises that their father purchased the disputed land in the court auction. The opposite party nos.2, 9 & 11 are the
purchasers from Kulamani or his sons. It is further, pleaded that the undisputed fact is the property involved herein belongs to the branch of Markand.
Markand had two sons as Laxmidhar & Arta who had succeeded ultimately by the Laxmidhar in the year 1931. Arta mortgaged the entire property
inherited through Markand to one Bholanath Singh. Based on a decision in T.M.S.-355/38, the mortgager obtained a decree for foreclosure and
accordingly, the mortgaged properties were put to auction in the Execution Case No.781 of 1940. One Paluni Dei was the auction purchaser, who
subsequently sold the disputed land to Kulamani Mohapatra and the present petitioners are the successors of Kulamani Mohapatra. While the matter
stood thus the opposite party no.1, Nimain, the successor of Laxmidhar filed Title Suit No.981 of 1953 for declaration of title in respect of the 8 Anna
share in the property and for recovery of possession. The suit was dismissed and Nimain the opposite party no.1 filed T.A. No.86 of 1960 which was
allowed by the 3rd Addl. Sub-Judge, Cuttack on 12.12.1963. Petitioners remaining unsuccessful filed S.A. No.338 of 1964 before this Court. During
pendency of the Second Appeal no.338 of 1964 it transpired that once of the purchaser/respondent died in the first appellate Court and his legal
representative were not substituted.
Thus, the Second Appeal got abated against him. It is claimed for the abatement of the first appeal as a whole for the death of one of the purchaser
during the first appeal, order dismissing the suit got revived. In the second appeal though steps for substitution was undertaken but for the appellants
therein failing to take out notice on the legal representatives following a peremptory order, the Second Appeal got dismissed against the legal
representatives and at the same time abated against the deceased respondent, thereby, reviving the abatement of the first appeal again. It further
reveals that when the consolidation operation started the plaintiff in the earlier suit in the guise of the successors of the auction purchaser and the
transferees from them filed different sets of objection case. All the cases were heard together. The Consolidation Officer accepted the claim of the
petitioners that the judgment passed in T.A. No.86 of 1960 a nullity and accordingly accepted the claim of the successors and the transferees of the
auction purchasers. This order was upheld in appeal. The revision under Section 36 of the Orissa Consolidation of Holdings and Prevention of
Fragmentation of Land Act, 1972 was allowed by reversing the orders in the appeal, thereby declaring the order passed by the Consolidation Officer
as well as by the appellate authority as bad.
Shri D.P. Mohanty, learned counsel for the petitioners taking the help of the observations in the Second Appeal No.360 of 1934 submitted that for
the abatement of the appeal, the First Appeal involved therein and the consequential dismissal of the Second Appeal involving one of the opposite
parties in the revision amounts to total abetment and as such the revision is also liable to be dismissed as abated as a whole, requiring interference in
the revisional order and allowing the writ petition.
Shri S.K. Patnaik, learned counsel for the opposite party no.1 on the other hand taking support of the findings of the revisional authority submitted
that there has been right consideration of the issue involved herein by the revisional authority and the findings of the revisional authority that the
revision did not abate for the death of the opposite party no.8 therein is justified. Further, taking aid of a decision in the case of Banamali Rajguru
versus Bhabani Sankar Mishra & Ors. as reported in Vol.76 (1993) CLT 4, learned counsel for the opposite parties submitted that for the support of
the decision indicated hereinabove to the case of the opposite parties the revisional order is justified. State Counsel stood by the submissions of Sri
S.K. Pattnaik.
Considering the rival contentions of the parties, this Court finds, there is no dispute that death of one of the purchaser took place during the
pendency of the first appeal i.e. Title Appeal No.86 of 1960. Therefore, there remains no doubt that the judgment involving T.A. No.86 of 1960 for
being involving a dead person, the judgment in the first appeal became a nullity. Further, considering such aspect, this Court finds, the Second
Appellate Court while dismissing the Second Appeal observed as follows:
“On the aforesaid analysis though the T.A. in the lower appellate court had abated, in view of the fact that the S.A. has abated as a whole, the
relief to the appellant cannot be granted. The appeal is therefore, dismissed.â€
For the above development in the second appeal, it appears, both the title appeals, the second appeal got abated meaning thereby the order passed
by the Title Suit No.981 of 1953 got revived. Thus, the suit was dismissed, thereby rejecting the claim of the opposite party no.1 for declaration of title
in respect of the one third share of the suit property and further also declaring the relief for recovery of possession. It is at this stage of the matter
considering the developments in the consolidation case, this Court finds, the successors of the auction purchaser the plaintiff involving the suit indicated
hereinabove, filed objection case. The C.O. while accepting the petitioner’s case that the judgment in the title appeal is a nullity, accepted the
claim of the successors and the transferees of the auction purchaser, which order was also confirmed in the Consolidation Appeal No.7 of 1989. It
appears, the question that the judgment in the Title Appeal No.86 of 1960 was a nullity, though raised in the revision, but the revisional authority under
the impression that for the dismissal of the second appeal as abated, the order passed in the first appeal got revived and therefore, while allowing the
revision, the revisional authority observed that the suit has been decreed and such decree has been also upheld in the title appeal, whereas judgment in
the title appeal also got abated for being passed against a dead person.
Taking into consideration the entire background indicated hereinabove, this Court finds from the submission of both the parties that the death of one of
the purchasers, a respondent in the first appeal having taken place during pendency of the Title Appeal No.86 of 1960, there remain no doubt that the
judgment in the title appeal having been passed involving a dead person became a nullity. Further, looking to the observation of the Second Appellate
Court as reflected hereinabove, this Court fins, the Second Appellate Authority has also clearly observed that the Title Appeal in the lower appellate
court had abated, which means, there is revival of the judgment and decree involving Title Suit No.981 of 1953.On the revival of the judgment and
decree involving the T.S. No.981 of 1953, this Court finds, the revisional petitioner had no justifiable claim. The revisional authority having failed to
appreciate the effect of the dismissal of the second appeal and also failing to appreciate the effect of the title appeal for being decided involving a
dead person, this Court finds, there is wrong appreciation of the materials available by the revisional authority requiring this Court to interfere in the
revisional order at Annexure-1.
In the above circumstances, this Court while interfering in the revisional order at Annexure-1, sets aside the same. The writ petition succeeds. No
cost.