RADHU SWAIN Vs. NITEI

JUDGEMENT

(1.) IN this Writ Petition the Petitioners challenge the legality & propriety of Order Dated 30.07.2005 (Annexure -3) passed by the Commissioner, Consolidation, Orissa, Bhubaneswar -Opp. Party No. 3 in Revision Case No. 59 of 2004 under Section 36 of the Orissa Consolidation of Holdings & Prevention of Fragmentation of Land Act, 1972 (in short 'Consolidation Act'). The undisputed facts are that the disputed landed property was recorded jointly in the name of Bidya Swain & Jogi Jena in 1927 -28 record of rights. Jogi Jena's son was Sadhu, who died leaving no natural heir & successor. Baidya had two sons, namely, Chema & Gopal. The relationship of the parties inter se is as per the following Genealogy:

(2.) IT may be mentioned here that Original Suit No. 99/486 of 1983/1980 had been filed by Padan, the father of Petitioner Nos. 1, 2 & 4 for partition of the disputed lands & allotment of 50% share in his favour. In the suit, Nityananda had taken the plea that he was the adopted son of Sadhu & was therefore alone entitled to 50% share. The Learned Sub -Judge, Puri had passed the decree with a finding that Nityananda was the adopted son of Sadhu & that Padan was entitled to only 14th share. Challenging the decree passed in the suit, Padan had filed Title Appeal No. 37/111 of 1986/84 before the District Judge, Puri. During the pendency of the Title Appeal, the consolidation operation in the village where the disputed properties situate, having been started, the title appeal as well as the suit were ordered to be abated under Section 4(4) of the Consolidation Act.

(3.) IN assailing the revisional order of the Commissioner, Consolidation, the Learned Counsel for the Petitioners submits that the order of the Commissioner, Consolidation that the finding of the Learned Sub -Judge in the original suit that Nityananda is the adopted son of Sadhu has to be taken into consideration in view of the principle decided in the case of Ram Prasad (supra) is not sustainable inasmuch as the principle decided in Ram Prasad (supra) has lost its force in view of the subsequent decision of the Hon'ble Supreme Court reported in : (2012) 12 SCC 642 Paras Nath Rai & Ors. v. State of Bihar & Ors., in which it has been laid down that where the suit as well as the appeal abated, the result is that the very commencement of the civil proceeding came to a naught &, therefore, findings recorded in the said proceeding became extinct.