JOGENDRA JENA Vs. KRUSHNA JENA

JUDGEMENT

(1.) IN this writ petition the petitioners assail the correctness of the order passed by learned Collector, Bhadrak on 28.05.2010 in OCH & PFL Misc. Case No.4 of 2009, wherein it was ordered that the petitioners be evicted from the land in question and the same be restored to the opposite party no.1 under Section 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, herein after referred to as 'the OCH and PFL Act' for brevity.

(2.) THE facts of the case are not disputed though the opposite party no.1 claims that he has mortgaged a piece of land measuring Ac. 0.20 decimals of land out of Ac 0.58 pertaining to plot no.261, holding no.70 to the petitioners, it has been established before the court below that the opposite parties have, in fact, executed a registered sale deed bearing no.2815 dated 06.09.1985 in favour of the petitioners. It is not disputed at the same time that the area, i.e. Basudevepur Mouza, was under consolidation operation. It is also not disputed the fact that the opposite party no.1 did not seek permission from the consolidation authorities for transferring the fragment of land in favour of the petitioners. Thus, the opposite parties initiated a proceeding under Section 35(2) of OCH and PFL Act and prayed to declare the mutation order in favour of the petitioners to be illegal and to evict the petitioners from the disputed land. It is also not disputed that the petition under Section 35 of the OCH and PFL Act was filed about 25 years after execution of the registered sale deed. Thus, the only question that arises in this writ petition is whether the application filed by opposite party no.1 against the petitioners is barred by limitation and if the petitioners have perfected title by way of adverse possession.

(3.) THE learned Collector came to the conclusion that the limitation will not run against the opposite party no.1 as the document is a void document. On the basis of the same the petitioners cannot claim any right to have accrued in their favour due to limitation. Therefore, the learned Collector declared the sale deed executed in favour of the petitioners to be void and ordered that the petitioners be evicted from the land in question and the possession thereof be restored to the opposite party no.1. Such order is assailed in this writ petition.