SARIAMANI HOTA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner has filed this writ petition challenging the order dated 20.5.1996 passed by the Additional District Magistrate. Koraput in O.L.R. Revision No. 10 of 1995 confirming the orders passed by the Courts below.

(2.) The brief facts of the case are as follows : One Minaketan Hota is the common ancestor. He has two wives. namely, Sebati and Seeta. He has two sons. namely, Abhimanyu and Gopinath and one daughter Dukhi through his first wife Sebati. Gopinath had no issue. Abhimanyu has six sons and two daughters. O.L.R. Case No. 28 of 1973 was initiated by the Revenue Officer and Tahasildar. Boriguma. In the said proceeding, Abhimanyu filed his return showing that AC. 60.62 decimals of total land was standing in his name and in the name of his family members. In pursuance thereof, a draft statement was issued to the extent of Ac. 150.49 dec. and objections were invited. In the draft statement, it was contended that Abhimanyu was in jointness with his mother Sabitri, step-mother Seeta and his family members. Abhimanyu, Seeta and Harihara filed their respective objections to the draft statement. Seeta and Harihara contended that due to family disturbance, there was a family partition in the year 1965 and they were separated from Abhimanyu enjoining their share separately as per the allotment. As such, their separate status be recognised and allowed. In the said partition, Seeta was allotted Ac. 41.09 dec. of land in village Semla and Khangarguda. Ac. 32.24 decs. were allotted to Harihara in the above villages and remaining lands were allotted in favour of Abhimanyu. Abhimanyu also contended that his son Harihara and Prafulla married and separated. Prafulla purchased Ac. 16.00 dec. of land which had been included in the ceiling proceeding and that land was his self-acquired property. Therefore, those lands were excluded from the ceiling area. Without taking into consideration the partition deed during 1965 and the separation of two sons of Abhimanyu much prior to the cut off date, the Revenue Officer, on an erroneous appreciation of the matter, held that Abhimanyu is in possession of Ac. 166.43 dec. of 47.38 standard acres (S.A.). Thus, he is in possession of the surplus land to the extent of 27.62 S.A. vide order dated 3.1 1.1976. However, though he accepted that Harihara was major prior to 26.9.1970. he did not accept the fact of separation. Being aggrieved by the said order, Abhimanyu filed O.L.R. Appeal No. 15 of 1977 before the additional District Magistrate, Koraput which was allowed on 12.9.1977 accepting the partition effected among Abhimanyu, Harihara and Seeta in the year 1965 and holding that Harihara is a major married and separated son prior to the cut off date i.e., 26.9.1970. Seeta was also separated since 1965. However while computing the total number of family members of the land holder, the appellate authority erroneously computed that Abhimanyu is entitled to 16 S.A. as his family is comprising of 8 members including Abhimanyu, his mother, four sons and two daughters and observed that separate ceiling proceeding can be initiated against Harihara and Seeta to find out the ceiling surplus land and to correct the errors regarding computation of Abhimanyu's family members. Against the said order, O.L.R. Review Petition No. 2 of 1978 was filed before the appellate authority who rectified the errors on 31.3.1978 holding that instead of 16 S.A., Abhimanyu is entitled to 18 S.A. as his family comprises of himself, his wife and seven children. However, the lower appellate authority failed to take into account the other of Abhimanyu, Sebati as a member of the family who would together comprise a total number of ten members instead of nine.

(3.) The revenue authority initiated O.L.R. Case No. 3 of 1979 against Seeta as observed by the appellate authority to initiate a separate proceeding against her and Harihara. In the said proceeding, she was allotted total extent of Ac. 35.24 dec. or 10.00 S.A. after excluding a total of Ac. 1.30 S.A. as ceiling surplus land. After closure of all the proceedings, Abhimanyu distributed lands under his possession amongst his sons and gifted some of his lands to the daughters during their marriage. The revenue authority initiated a fresh ceiling case i.e., O.L.R. Case No. 2 of 1994 under section 37-B of the Orissa Land Reforms Act on the basis of R.I. report that Abhimanyu possessed all the landed property belonging to Seeta after her death in the year 1989. Pursuant to the publication of the draft statement. Abhimanyu filed his objection contending, inter alia, to the following effects :