BAIKUNTHA NATH MISHRA Vs. ADDL. DISTRICT MAGISTRATE KENDRAPARA

JUDGEMENT

(1.) In this writ petition, which was originally filed by Baikuntha Nath Mishra and upon whose demise his legal representatives have been stepped into his shoes by way of substitution, prayer has been made to quash the order dtd. 28/9/2006 passed by the Addl. District Magistrate, Kendrapara in O.E.A. (R) No. 1 of 2002 under Annexure-10 confirming the order dtd. 16/4/1999 passed in R.P. Misc. Case No. 37 of 1998 by the Addl. Tahasildar, Aul, which was affirmed vide order dtd. 17/11/2001 in Misc. (A) No. 7 of 1999 by the Sub-Collector, Kendrapara under Annexure-9 by holding that since the private opposite parties are in possession of the disputed land since 1980, the order dtd. 22/5/1980 passed by the Tahasildar, Aul in Tauzi Misc. Case No. 55/1978-79 reviewing the order dtd. 23/2/1979 has no merit as there is no provision that one Presiding Officer can review his own order after a period of one year; as well as to quash the order dtd. 9/12/1980 passed by the Tahasildar, Aul in Misc. Case No.217 of 1980 under Annexure-5.

(2.) The factual matrix of the case, in a nutshell, is that sale deed no.352 dtd. 23/1/1940 (Annexure-3) was executed by one Pitambar Mishra, son of Mani Mishra in favour of Syam Sundar Mishra, Benudhar Mishra and Lambodhar Mishra, transferring the land in Khata No. 150, Plot No. 54 measuring area Ac.0.23 dec. and Plot No. 55 measuring area Ac.0.21 dec., boundary:North-Road, South-Bidhyadhar Mishra. Tauzi Misc. Case No.55 of 1978-79 was initiated by opposite party no.3 to record the disputed land in their name on the basis of their sale deed no.352 dtd. 23/1/1940. The final order (Annexure-1) in that case was passed on 8/7/1980 by the Tahasildar, Aul holding that the disputed land was not purchased by opposite party no.3 and, therefore, under the sale deed no.352 dtd. 23/1/1940, no title can be passed in respect of Plot Nos. 44 and 45 under Khata No.150. Thereafter, the very same Tahasildar, at the instance of opposite party no.3, again initiated another Bebandobast Misc. Case No. 217 of 1980. In the said case, the order dtd. 10/11/1980 shows that both the parties are claiming their possession over the suit land on the basis of the report of the Revenue Inspector dtd. 8/11/1980 (Annexure-2), which shows that the private opposite parties are possessing the land and the original petitioner is enjoying the fruits. Consequentially, the Tahasildar held that Pitambar Mishra, son of Mani Mishra by way of sale deed dtd. 23/1/1940 had transferred the suit land, but in the deed it was wrongly mentioned Plot Nos.54 and 55 under Khata No. 150 instead of Plot Nos.44 and 45 under Khata No.158. However, the boundary given in the sale deed tallied with the land in possession of the private opposite parties, even though wrong plot numbers and khata number had been mentioned in the sale deed. Accordingly, direction was issued to assess the rent in favour of opposite party no.3 with effect from 1963-64. The order passed in Tauzi Misc. Case No.55/1978-79 has not been challenged. But against the order dtd. 9/12/1980 passed in Bebandobasta Misc. Case No. 217/1980, by which it has been held that the original petitioner has no right and title over the land and directed to settle the land in favour of Khetrabasi Mishra-opposite party no.3 and called upon him to deposit three times rent and distinguished the earlier order as not binding being not legal. Against the said order, the original petitioner filed OEA Appeal No.2/1981 before the Court of SDO, Kendrapara, which was dismissed vide order dtd. 31/3/1989. Thereafter, the original petitioner filed OEA Revision No.12 of 1989 before the Addl. District Magistrate, Kendrapara, which was also dismissed vide order dtd. 8/2/1996. Then, the original petitioner filed R.P. Case No. 940 of 1996 before the Commissioner, Land Records under Sec. 15 (b) of the Survey and Settlement Act, which was remanded to the Tahasildar, Aul to verify the entitlement of the parties. Thereafter, the Tahasildar, Aul initiated Misc. Case No. 37 of 1998 and vide order dtd. 8/6/1999 dismissed the same by holding that RoR has rightly been prepared in the name of opposite parties no.3 to 5. Against the said order, the original petitioner preferred Misc. (A) No.7 of 1999 and vide order dtd. 17/11/2001 the Sub-Collector, Kendrapara dismissed the appeal. Aggrieved thereby, the original petitioner preferred OEA (R) No. 1 of 2002 before the Addl. District Magistrate, Kendrapara and in turn the ADM dismissed the revision confirming the order passed in Misc. Case No. 37 of 1998 dtd. 8/6/1999 by the Tahasildar, Aul and the order dtd. 17/11/2001 passed by the Sub-Collector, Aul in Misc. (A) No.7 of 1999. Hence, this writ petition.

(3.) Mr. B.K. Sahoo, learned counsel for the petitioners vehemently contended that the order dtd. 8/7/1980 passed in Tauzi Misc. Case No.55 of 1978-79 having not been challenged, it has reached its finality. But, without setting aside the said order, the very same Tahasildar in Bebandobasta Misc. Case No.217 of 1980 passed a different order in favour of the private opposite parties. It is contended that even though incomplete boundary was said to be given in the sale deed, but it has been held that the boundary has been tallied. It is further contended that Bebandobasta Misc. Case No. 217 of 1980 was initiated for fixation of rent under Sec. 8A of the OEA Act, which only authorizes to fix the rent in respect of the land, which is deemed to be settled and validity of the sale deed could not be decided and that there is dispute between two rival persons claiming their right of occupancy.