MANGAL PRASAD PATEL Vs. CHANDRAMANI NAIK

JUDGEMENT

(1.) THESE two revision petitions have been filed by Mangal Prasad Patel against opposite party Chandramani Naik. In both these cases the petitioner seeks to impugne the order dated 8. 2. 1932 of the Member, Board of Revenue (the 'Board' for short ) disposing of O. M. T. Appeal Cases Nos. 13 and 14 of 1979. In the said order the Board came to the conclusion that opposite party Chandramani Naik was entitled to be recognised as a raiyat in respect of the disputed land and rejected the claim of the petitioner for settlement of the said land. The disputed land comprises of 1. 44 acres in Hal Plot No. 735 of village Belsara corresponding to Plot No. 857 with an area of 1. -38 acres as per Sabik settlement record.

(2.) THE disputed land was held by late Dharanidhar Patel, the brother of the petitioner Mangal Prasad as the Gauntia of village Belsara under the ex -State of Gangapur now in the district of Sundergarh. The village offices of the district of Sundergarh were abolished with effect from 1; 4. 19j6 under Orissa Merged Territories (Village Offices Abolition ) Act, 1963, A suo motu proceeding, Bhogra Case No. 4 of 1970, was initiated by the Tahasildar, Hemgiri in 1970 in respect of the Bhogra lands of the ex -Gauntia in the village of Belsara. In pursuance to the notice issued by the Tahasildar inviting objection, the petitioner made a claim for recording his name in respect of several plots including the disputed land. Admittedly the opposite party did not file any application for settlement of the land. As the records reveal he claims the disputed land on the basis of an unregistered lease deed executed by the ex -Gauntia, Dharanidhar The proceeding was disposed of against the petitioner Mangal Prased on 2S. 4. 1971. Against the said decision he preferred Appeal Case No. 22/4 of 1971 -72 before the Additional District Magistrate, Sundergarh. The appeal was allowed and the matter was remitted to the Tahasildar for de novo enquiry. After remand the Tahasildar disposed of the case in favour of the petitioner and against the opposite party on 26. 5. 1974. Against the said decision the opposite party carried Appeal No. 54 of 1975 which was again deposed of by the appellate authority with a direction for fresh enquiry. Thereafter, the Tahasildar held local enquiries and disposed of the case by his order dated 30th of May, 1978 negativing the petitioner's claim and holding that the opposite party Chandramani, an encroacher, was entitled to be settled with the disputed land. Against this order the opposite party filed Appeal Case No. 16 of 1978 and the petitioner filed Appeal Case No. 22 of 1978 before the Additional District Magistrate, Sundergarh. The appellate authority by a common order dated 12. 3.1979 allowed Appeal Case No. 16 of 1978 filed by the opposite party and dismissed the Appeal Case No. 22 of 1978 filed by the petitioner. Being aggrieved by this order the petitioner filed O. M. T. Appeal Case No. 13 of 1979 and O. M. T. Appeal Case No. 14 of 1979 before the Member, Board of Revenue, Orissa, As already noticed, the Board dismissed the appeals filed by the petitioner by his order dated 8. 2. 1982, giving rise to in these two revision petitions.

(3.) AS already noticed, while the petitioner claims the disputed property as the brother of the ex -Gauntia, the opposite party claims the same as a tenant under the ex -Gauntia. There was some controversy on the question whether the village office holder or his co -sharer is required to show possession over the Bhogra land before the same could be settled in his or their favour. This Court in the case of State of Orissa v. Rameswar Patabisi, (A. I. R. 1976 Orissa 69) was of the view that the holder of the village office need not show possession before being settled with the land. This decision was contrary to an earlier single Judge decision of Hon'ble B. K. Ray, J., in M. A. No. 75 of 1970 disposed of on 4. 11. 1974. The controversy was set at rest by the Supreme Court in the case of Maguni Charan Dwivedi v. State of Orissa and Anr., (A. I. R. 1976 S. C. 1121) wherein the Supreme Court accepted the view taken by B. K. Ray, J., in M. A. No. 75 of 1970 referred to above and overruled the Division Bench decision in A. I. R. 1976 Orissa 69. The Supreme Court on an interpretation on the provisions of statute held that the words 'each such person' occurring in Sub -sec. (1) of Section 5 of the Act include the holder of the village office, so that in order to be eligible for settlement of the land with occupancy rights, be must also be in separate and actual cultivating possession of the 'bhogra land' immediately before the appointed date. In view of the aforesaid settled position of law, the material question for consideration is who, the petitioner or the opposite party, was in separate and actual cultivating possession of the disputed land immediately before the appointed date, i, e., on 1. 4. 1965. On a perusal of the impugned order it is clear that the Board has not paid due attention to this important aspect of the case excepting in the concluding portion of the judgment while summing up his decision the Board observed that Chandramani Naik was recognised as a raiyat in the disputed lands which he was in possession of that land on the appointed date under the Orissa Merged Territories (Village Offices Abolition ) Act. There is no discussion on the question of possession of the petitioner or the opposite party in the entire judgment. As such the learned counsel for petitioner is justified in his submission that the aforesaid observation of the Board is without due application of mind to the materials on record. The Board which is the final authority under the statute should have paid due attention to the vital question relating to possession of the disputed land on the appointed date and this having not been done the conclusion is vitiated,