PANIKA BHOI Vs. KUNU BARIHA

JUDGEMENT

(1.) The petitioner has filed this writ petition challenging the impugned orders in Annexures 4 to 6 passed by opposite parties 5 to 7 respectively under Section 23 of the Orissa Land Reforms Act (in short, "the OLR Act").

(2.) The brief facts of the case are that basing on the report of A.D.W.O, Patnagarh, Revenue Misc. Case No.8/6 of 1994 was initiated before the Sub-Collector, Patnagarh under Section 23 of the Act. It was alleged that the disputed land originally belonged to Lochana Bariha, the grand-mother of opposite parties 1 and 2, who is a Scheduled Tribe. She transferred the same in favour of one Rohitaswa Bariha, who also belongs to Scheduled Tribe, by executing a registered sale deed dated 5.2.1974. Rohitaswa Bariha, in his turn, sold the land in question to Panika Bhoi, the present petitioner, by executing two registered sale deeds dated 5.7.1985 and 6.7.1985. However, opposite parties 3 and 4 Kairu Sahu and Rasika Sahu respectively are the real owners of the disputed land. They purchased the property Benami in the name of Rohitaswa Bariha as they do not belong to Scheduled Tribes. As the sale deeds were executed without obtaining permission from the competent authority, they claimed for restoration of the said property. In the said case, they did not implead the present petitioner as a party but subsequently the present petitioner was made a party on an application being filed by him. He filed his show cause. Opposite parties 3 and 4 filed their show cause taking a plea that they had neither purchased the property ever in the name of Rohitaswa Bariha nor had any interest in the disputed land. A false case had been foisted against them due to party-faction in the village. Rohitaswa Bariha had purchased the disputed property and executed the two sale deeds in favour of the present petitioner. The purchaser was in possession of the property in pursuance of the said registered sale deeds. The present petitioner being a third party purchaser filed his show cause stating therein that Lochana Bariha was the real owner of the disputed land and she transferred the property in the name of Rohitaswa Bariha on 5.2.1974. Both the vendor and the purchaser belong to Scheduled Tribe. Subsequently Rohitaswa Bariha transferred the disputed land by two registered sale deeds dated 5.7.1985 and 6.7.1985 in favour of the present petitioner. The present petitioner is also a Scheduled Tribe person. Therefore, prior permission was not necessary and from the date of purchase he is in possession of the property in question.

(3.) Opposite parties examined six witnesses in support of their claims. The present petitioner also examined six witnesses and filed certain documents i.e. registered sale deeds, current record-of-right which showed that the petitioner was in possession of the disputed land and some affidavits. Rohitaswa Bariha filed an affidavit supporting the case of oppositeparties 1 and 2. Subsequently he filed another affidavit supporting the case of the present petitioner. The Sub-Collector, without appreciating the matter in its proper perspective, relying on the affidavit filed by Rohitaswa Bariha passed the impugned order, under Annexure-4 on 27.3.1996 in favour of opposite parties 1 and 2. Against the said order, the petitioner filed OLR Appeal No.6 of 1996 before the Addl. District Magistrate, Bolangir who dismissed the appeal holding that the ROR of the current settlement showed that the name of Rohitaswa Bariha had been recorded in the remarks column as "in illegal possession". The ROR would have been prepared in his name, had he been the real owner. Challenging the said order, OLR Revision No.21 of 2000 was filed before the Collector, Bolangir. The revisional authority also dismissed the revision holding that Rohitaswa Bariha was the Benamidar and the two contradictory affidavits filed by Rohitaswa Bariha created doubt regarding the proof of transfer of land through execution of a registered sale deed in the name of a Benamidar. Since the proceeding under Section 23 of the OLR Act is of summary nature and enquiry should be conducted before disposal to the full satisfaction of the Revenue Officer, the provision of Sections 91 and 92 of the Indian Evidence Act, 1872 cannot be taken into consideration in respect of the cases under the provisions of the OLR Act. Hence this writ petition.