SAROJ KU. ROUT Vs. STATE

JUDGEMENT

(1.) THE petitioner herein challenges the order dated 14.9.2009 (Annexure -9) passed by learned Director, Consolidation, Orissa, Cuttack -opposite party No. 2 in R.P. Case No. 121 of 2007 on application filed by opposite party No. 11. In the R.P. Case No. 121 of 2007 learned Director, Consolidation having taken into consideration the rival contentions of the parties passed the impugned order remanding the case to the Consolidation Officer, Kendrapara (O.P. No. 5) for disposal according to law.

(2.) ACCORDING to the writ petitioner, in the 1930 R.O.R. (Annexure -1) the disputed land was recorded jointly in the name of Sk. Janu Mahamed and Sakhi Bewa with note of possession in favour of Sk. Janu Mahamed made in the remarks column. Sk. Janu Mahamed died in the year 1980 leaving behind his only son Sk. Ramjan who died in 1992 leaving his widow Bibijan Bibi and two daughters who are O.P. Nos. 9 and 10 in this writ petition. Bibijan died in 1993. When the matter stood thus, consolidation operation started in the village where the disputed land situates. In the consolidation R.O.R. published in 2002 the disputed land was wrongly recorded in the name of Janu Mahamed as both of his grand daughters -O.P. Nos. 9 and 10 were then staying in their respective in -laws' house. The grand -daughters filed R.P. Case No. 3551 of 2005 in the court of the Director, Consolidation for recording their names in place of their deceased grand -father which was remanded to the Consolidation Officer, Kendrapara who, after enquiry and verification passed order on 4.2.2006 to correct the consolidation record in respect of the disputed land by recording the names of O.P. Nos. 9 and 10 in place of Janu Mahamed. Accordingly, the R.O.R. was corrected. O.P. Nos. 9 and 10 had a mutual partition of the disputed land and sold the same in favour of O.P. Nos. 3 and 4 by registered sale deeds dated 24.1.2006 and 30.1.2006. O.P. Nos. 3 and 4 then got their names mutated in the Tahasil record. Subsequently, O.P. Nos. 3 and 4 sold the disputed land in favour of the writ petitioner who has also mutated his name and has been in possession of the land paying rent to the revenue authorities. Further case of the petitioner is that when he started construction of a building over the disputed land, O.P. No. 11 (Kendrapara Autonomous College, represented through its Principal -cum -Secretary) obstructed him for which the petitioner filed a Civil Suit bearing C.S. No. 178 of 2007 for permanent injunction in the court of the learned Civil Judge (Junior Division), Kendrapara. O.P. No. 11, on the other hand, filed the aforestated R.P. Case No. 121 of 2007 before O.P. No. 2 for correction of the record.

(3.) A perusal of the impugned order under Annexure -9 reveals that the learned Director, Consolidation after taking into consideration the rival contentions of the parties have observed that it is quite necessary to ascertain as to when Janu Mahamed died and as to whether the real successor of Janu Mahamed have sold the land vide registered sale deed dated 21.5.1948 to Hasrat Bibi from whom O.P. No. 11 has claimed to have purchased the disputed land under registered sale deed dated 26.7.1958. With that observation the learned Director has remanded the case to the Consolidation Officer for disposal according to law only after issuing notice to all the parties and determining the issues framed by the learned Director under the impugned order. The learned Director has also observed that the parties may be permitted to adduce evidence in support of their respective claim. In the facts and circumstances narrated above, the decision taken in R.P. Case No. 3551 of 2005 cannot operate as res judicata inasmuch as O.P. No. 11 was not a party to that proceeding and the sale transactions under two registered sale deeds vide Annexures -A/11 and B/11 were not taken into consideration. Considering the nature of the rival claims of the parties, it is quite necessary to have a fresh enquiry into the matter and to answer the issues as framed by the revisional authority in the impugned order under Annexure -9. Because, if title in the case land has been validly conveyed under Annexures -A/11 and B/11 then the writ petitioner cannot be said to have acquired title therein. In that view of the matter, it cannot be said that the impugned order is illegal.