KRUSHNA DAS Vs. COMMISSIONER LAND RECORDS

JUDGEMENT

(1.) THIS writ application is directed against the order passed by Commissioner, Land Records and Settlement Orissa, Cuttack (in short the 'Commissioner') in R.P. Case No. 3613/97 wherein the Commissioner has directed to delete the names of Bata Das and Arakhita Das, the predecessors -in -interest of the present petitioners from the Record -of -Rights. It appears that while preparing the Record -of - Rights possession of Bata Das and Arakhita Das was noted. The present opposite party No. 2 filed revision case for deletion of the names on the ground that possession of a person without any right should not be noted in the Record -of -Rights. The aforesaid contention having been accepted by the Commissioner on the basis of instruction issued by the Board of Revenue, Orissa, and a Division Bench decision of this Court in O.J.C. No. 4478 of 1989 (Sulie Bewa v. Bharat Pradhan and Anr.) disposed on 22.10.1992, the present writ application has been filed by the legal representatives of Bata Das and Arakhita Das.

(2.) A Record -of -Rights is prepared under the Orissa Survey and Settlement Act. Section 43 of the said Act empowers the Government to make rules after previous publication for the purpose of carrying out the provisions of the Act. Pursuant to the aforesaid rule -making power, the Orissa Survey and Settlement Rules, 1962 have been framed by the State Government. Chapter -Ill of the Rules relates to preparation of Record -of -Rights. Rule 21 contemplates the particulars to be recorded in the Record -of -Rights. Rule 21 (i) provides that the 'name of each tenant or occupant' is one of the aspects to be noted. While construing the aforesaid provision, a Division Bench of this Court in the decision reported in 1996 (I) OLR 393 (Jagabandhu Sahu and Ors. v. Commissioner of Land Records and Settlement, Orissa, Cuttack and others) has held that the expression 'occupant' would also include the 'person in actual possession' and even a trespasser having no right can be shown to be in possession in the remarks column of the Record -of -Rights.

(3.) IT is, no doubt, true that in the unreported decision of this Court in O.J.C. No. 4478/89, it was observed :