SK ABDUL FAKIR Vs. CHARULATA KAPANDIA

JUDGEMENT

(1.) HEARD learned counsel for the petitioner, learned counsels appearing for each of opposite parties 1 and 2 so also learned Standing Counsel and the writ petition stands disposed of in the following manner.

(2.) OPPOSITE Party No. 1 filed an application under Regulation 3 A of Orissa Scheduled Areas Transfer of Immovable property (by Scheduled Tribes) Regulations, 1956 (in short 'the Regulation') claiming that she is the owner of the property of Plot No. 28 in Mouza Bentakarpada measuring an area of Ac. 1.40 decimals on the basis of registered deed of sale executed on 19.3.1987 by the true owner i.e., the opposite party No. 2. Since her husband is serving outside the Mouza, she went and stayed with him and taking advantage of her absence the writ petitioner laid a false claim, initiated Mutation Case No. 634 of 1991 and got mutated in his favour an area of Ac. 1.15 decimals from that plot i.e., the Scheduled 'B' land and on that basis he is in illegal and unauthorised occupation of the Schedule 'B' land. Accordingly, she prayed for eviction of the petitioner and restoration of possession of Scheduled 'B' property in her favour in accordance with the provision in Regulation 3 A of the Regulation. Opposite party No. 2 i.e., the vendor of the opposite party No. 1 did not contest the case. Petitioner contested that case advancing a conflicting claim of right, title and interest and validity of the order of Mutation. On consideration of contention of the parties, in Regulation II case No. 1 of 1999, learned Sub Collector, Panchapir, Karanjia on 11.9.2000 recorded the finding that petitioner is in unauthorised occupation of the land and, the same should be restored to the opposite party No. 1. He further observed that the order of mutation in favour of the petitioner being illegal, therefore, if the opposite party No. 1 applies appropriately then the 'B' Schedule land be recorded in her favour. Petitioner preferred Regulation II Appeal No. 6 of 2000 in the Court of Additional District Magistrate, Mayurbhanj as against the above noted order. The appellate Court after a thread bear discussion of the facts, evidence and contention of the parties recorded his concurrence to the finding and conclusion to the order of the Sub Collector.

(3.) WHILE challenging to the impugned orders, learned counsel for the petitioner states that petitioner filed Amin Bother and the position of the case land respecting the plot No. and khata No. in the Sabik and Hal settlements, as noted in that Amin Bother, is different than the conclusion derived by the Courts below. He argues that notwithstanding such circumstance learned Addl. District Magistrate neither rejected the evidentiary value nor considered implication and acceptability of that document and arrived at a wrong conclusion. He further argues that in course of enquiry in the Mutation Proceeding the Tahasildar after being satisfied about identity of the present disputed case land as the land purchased by the petitioner under the registered deed of sale of the year 1965 allowed the application for mutation and that aspect was also not considered properly by the Courts below. His further contention is that when the order of mutation is not challenged by the opposite party No. 1 that order is binding on her and the Courts below should have proceeded with the proceeding accordingly. He further argues that as against the settlement entry petitioner has filed a revision which is pending before the Revenue Divisional Commissioner (Central Division) Cuttack, in which he has prayed to correct the Record of Right in accordance with the Amin Bother. Learned counsel for the petitioner, however, states that such application for revision has been filed by the petitioner after passing of the impugned order by the appellate Court. Placing such argument, learned counsel for the petitioner proposes that to avoid any further conflict between the parties, the matter may be remanded to the Court of the Sub Collector for fresh adjudication by providing opportunity of further hearing. In support of the aforesaid contention, petitioner refers to and relies on the cases of Krushna Chandra Mahakul v. State of Orissa and Ors., 2003 (II) OLR 306, Harihar Mohapatra and Ors. v. Commissioner of Land Records and Settlement, Orissa and Ors., 1998 (II) OLR 495 and Trilochan Singh and Anr. v. Commissioner of Land Records and Settlement, Orissa and Ors., 79 (1995) CUT 507.