KUDURA PODHAN Vs. GANGADHAR BEHERA

JUDGEMENT

(1.) This is a petition under Arts. 226 and 227 of the Constitution against an order passed by the Additional Agent of Phulbani in exercise of the powers conferred on him by the Agency Tracts Interest and Land Transfer Act, 1917, setting aside an order passed by the Special Assistant Agent, Balliguda.

(2.) The petitioner is a Khond who is a member of a hill tribe as defined in the said Act. The opposite party is admittedly not a member of a hill-tribe. The petitioner applied for restoration of a plot of land known as. 'Bradikheta' bearing settlement plot No. 57 in village Dokrongia saying that it had been mortgaged by him with the opposite party several years ago and that the said transfer was invalid in view of the provisions of the said Act. The opposite party, however, contested the application stating that the said plot had been sold to him in 1927. He also produced a sale deed (Ex. I) before the Deputy Tahsildar of Balliguda who made a local enquiry. The Deputy Tahsildar in his report to the Special Assistant Agent observed that the sale deed appeared to be a suspicious document and that it was incomplete and the names of the scribe and the attesting witnesses were not to be found in the same. He therefore recommended that the disputed plot should be restored to the petitioner after eviction of the opposite party. The Special Assistant Agent accepted his recommendation and decreed eviction. On appeal, however, the learned Additional Agent set aside the order of the Special Assistant Agent solely on the ground that on a perusal of the settlement record (which was not produced before the lower Court) it appeared that the disputed plot had been recorded in the name of one Kirtan Behera, a brother of the opposite party, as early as 10-11-30. He thought that the settlement entry was sufficient to support the opposite party's case.

(3.) The lower appellate Court has obviously committed a serious error. Had he gone through the evidence recorded by the Deputy Tehsildar he would have noticed that the opposite party's case was that a sale deed was executed in his favour in 1927. He did not state that the sale deed was executed in favour of his brother Kirtan Behera or that he succeeded him after his death. The petitioner also while giving evidence before the Deputy Tahsildar stated that the disputed plot had been mortgaged by him in favour of Kirtan Behera in 1927. If, as stated by him, the disputed plot had been mortgaged with Kirtan Behera there is nothing surprising that Kirtan Behera was shown in possession. The opposite party relied on a sale deed in his favour said to have been executed in 1927 and produced a document (Ex. 1) which was reported to be highly suspicious in view of its being incomplete. A new case that the sale was originally in favour of Kirtan Behera and that after his death the opposite party succeeded him appears to have been put forward for the first time before the Additional Agent, taking advantage of the settlement entry. Doubtless if the settlement entry had been conclusive in favour of the opposite party the order of the Additional Agent might have been justified. But when the settlement entry merely shows that Kirtan Behera was in possession in 1930 and when according to the petitioner's own case the disputed plot was mortgaged with Kirtan Behera in 1927 I cannot understand how the Additional Agent could say that the petitioner's case is disproved by the settlement entry. Therefore, if this document is ignored as being not helpful to either side the other evidence on record collected by the Deputy Tahsildar would support the case of the petitioner and justify the order of the Special Assistant Agent. The lower appellate Court's order is therefore improper in view of its failure to assess the settlement entry at its proper worth and to carefully read the other evidence collected by the Deputy Tahsildar.