BUDHA NARAYAN KAR Vs. KALINGA KESHARI MOHANTY

JUDGEMENT

(1.) IN this Writ Petition filed under Articles 226 and 227 of the Constitution of India, the confirming orders passed by authorities under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, being Annexures -4, 5 and 6 are sought to be challenged.

(2.) FOR an effectual adjudication of the inter se disputes between the parties, which centre round Act. 1.23 decimals of land acquired as long back as in the year 1913 by a registered sale deed, the facts which are very much necessary are briefly stated hereinafter. Kulu Kar, the common ancestor of the petitioners and vendors of opposite parties 1 to 3, had three wives. The first wife expired without any issue. Ramahari is the only son through the second wife. Through the third wife, Kelu Kar had four sons, namely, Govinda, Banamali, Narasingha and Murali. The petitioners belong to the branch of Govinda; whereas opposite parties 1 to 3 are purchasers of lands from branches of others sons of Kelu Kar. Admittedly, on 2.6.1913 by means of a registered sale deed (Ext.1), Ac. 1.23 decimals of land was purchased in the name of Ramahari, son through the second wife of Kelu Kar and Govinda, the eldest son through his third wife. In the year 1913, Ramahari was twenty years old; whereas Govinda, the ancestor of the present petitioners, was only eleven years old and was a minor. In the same year, on 25.11.1913 Kelu Kar, the common ancestor, executed a registered deed in the name and style of 'ANSA NIRUPANA PATRA (Annexure -2) allotting Ac. 14 -75 -5 Kadis of land equally in favour of his five sons, each having 1/5th share. Again said Kelu Kar by a registered gift deed dated 25.11.1913 gifted Ac. 1.56 decimals of land to Ramahari as 'JYESTHANSA. It is pertinent to mention here that the land in disputes measuring Ac. 1.23 decimals was neither the subject -matter of 'ANSA NIRUPANA PATRA nor the gift deed. After the death of the common ancestor, Kelu Kar, Ramahari created disturbance in the family partition of properties by claiming more lands, resulting in execution of a registered partition deed among the five brothers on 26.5.1930. A perusal of the aforesaid deed reveals that the disputed property along with other properties of the family including the property gifted to Ramahari towards 'JYESTHANSA by the gift deed dated 25.11.1913 measuring Ac. 1.28 decimals and the property covered under the 'ANSA NIRUPANA PATRA of the even date was the subject -matter of partition and the entire property was divided into five shares. It further reveals that specific properties in consonance with his share were allotted in favour of Ramahari, who got himself separated from his other four brothers and stayed separately. But then the other four brothers continued to live in their joint ancestral house and continued jointly. By efflux of time Ramahari died and so also Govinda, leaving behind the petitioners.

(3.) THE Joint Commissioner of Consolidation, after hearing the parties, remanded the case to the Consolidation Officer directing him to decide the inter se disputes among the parties afresh after giving opportunity of hearing to the parties. After remand, all the parties appeared before the Consolidation Officer (opposite party No.6), produced all the documents relied upon by them and also adduced oral evidence in support of their respective cases. The Consolidation Officer (opposite party No.6)after hearing the parties and perusing the records by his order dated 25.6.1996 (Annexure -4) did not accept the contention advanced by the petitioners that the disputed properties were the self -acquired properties of Ramahari and Govinda on the ground that in the year 1913 when the said properties were purchased, Govinda, the ancestor of the petitioners, was only eleven years old and he had absolutely no source of income. The Consolidation Officer also relied upon the registered partition deed executed on 28.5.1930 and held that the said properties were amalgamated with the other joint family properties and were partitioned among all the sons of Kelu Kar, thus, it cannot be claimed that the said properties were the exclusive properties of Govinda. On the basis of the aforesaid analysis, the Consolidation Officer disallowed the claim of the petitioners.