BIMBADHAR SENAPATI Vs. PRAKASH KUMAR SENAPATI

JUDGEMENT

(1.) Revisional order passed by Consolidation Commissioner under Section 37(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Acq. 1972, directing recording of land register plot No. 1442 measuring Act, 0.33 decimals in the name of opp. party No. 1 is under challenge in this proceeding.1. Banambar and Birabar were two brothers. In a partition between them effected in the year 1959, the case plot fell in the share of Banambar. He died leaving behind his widow Basanta and minor adopted son Prakash (opp. party No. 1). In the land register prepared under Section 6(2) of the Act, Banambar and Birabar were shown as the land owners in respect of the said plot. The petitioner filed objection under Section 9(3) of the Act disputing the correctness of the entry in the land register on the ground that Basanta for self and as mother guardian of opp. party No. 1 sold the land in question in favour of the petitioner by registered sale deed dated 10 -12 -1979 and as such, his name should be recorded. The objection was sustained by the Consolidation Officer (vide Annexure -1) and the same was confirmed in appeal by Deputy Director, Consolidation (vide Annexure -2). The Consolidation Commissioner has by the impugned order, reversed the decisions of the Forums below.

(2.) THE gist of the finding of the Consolidation Commissioner is that the Registered Sale Deed of 1979, by which the mother of the opp. party No. 1 had sold away minors' share in the joint property at a time when he was a minor and the mother was merely a custodian of the properties of the minor, is to be considered void ab initio and therefore it has to be construed that the opp. party No. 1 had authority to retain his right, title and interest in his share in the joint family property even beyond 1979.

(3.) LEARNED Counsel for the petitioner submitted that in the facts of the case and particularly when the petitioner had stepped into and was in possession of the plot in question, the opp. party No. 1 had his remedy in Civil Court to establish his title by setting aside the sale deed executed by his mother and the Consolidation Authorities lacked jurisdiction to entertain his claim.