GAJENDRA BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This writ application challenges the order dated 11.6.1997 passed by the Settlement Officer, Balasore, opposite party no.2, in Case No.134 of 1997. By the said order, opposite party no.2 allowed the application filed by the opposite party no.3 under Section 41 of the Orissa Survey and Settlement Act, 1958 (hereinafter referred to as "the Act") and recorded the land in his name.

(2.) Case of the petitioners is that Guru Prasad Behera had two sons, namely, Sadhu and Sahadev. Ananda, Brunda and Gobinda are the sons of Sadhu. Fakir and Satrughan are the sons of Sahadev. Daitari is the son of Ananda. Gajendra and Rabindra, the present petitioners, are the sons of Daitari. Radhika is the widow of Fakir. Hira is the widow of Satrughan. Both died issueless. The properties appertaining to M.S. Plot Nos.528, 551 and 736 of Khata No.187 and M.S. Plot No.450 of Khata No.237 of Mouza-Bajipur corresponds to Hal Plots Nos.710, 1063, 1064, 1204 and 519 recorded in the name of Radhika Bewa wife of Fakir and Hira Bewa wife of Satrughan. Hal record-of-right was prepared in the name of Gajendra and Rabindra, who are sons of Daitari. While the matter stood thus, settlement operation in the area, where the land falls, started. The petitioners instituted Objection Case No.4922/96/36 before the Rent Settlement Officer, Gopalpur impleading opposite party no.3 to delete Hal Plot Nos. 1063, 1064, 1204, 710 and 519 from Hal Khata No. 215 of Mouza-Bajipur since the same had been wrongly recorded in the name of opposite party no.3. The Rent Settlement Officer by order dated 14.8.1996, vide Annexure-1, allowed the objection case holding that opposite party no.3 by misleading the facts that he is the son of Satrughan husband of Hira Bewa got his name recorded in respect of Sabik Khata Nos.187 and 237, which were recorded in the name of Hira Bewa and Radhika Bewa, though he is the son of Chintamani. He further held that opposite party no.3 is entitled to the land purchased by him by virtue of RSD No.4075 dated 26.8.1977 from Hira Bewa. The said order has attained finality. While the matter stood thus, opposite party no.3 filed an application under Section 41 of the Act before the Settlement Officer, Balasore, which was registered as Case No.134 of 1997. It is contended that he is the son of Hira Bewa. In Objection Case No.4922/96/36, five plots have been recorded in the name of the petitioners. He was not aware of the same. It is further stated that he came to know the final publication of the record-of-right. With the factual scenario, a prayer was made to record the land mentioned in the schedule in his name. By order dated 11.6.1997, the Settlement Officer, Balasore, opposite party no.2, came to hold that the objector has established on the basis of the documents that he is the successor of the recorded tenant. Held so, he allowed the application.

(3.) Assailing the order dated 11.6.1997, Mr. Mohanty, learned Senior Advocate appearing for the petitioners, argued with vehemence that the Settlement Officer, Balasore, opposite party no.2, has travelled beyond its jurisdiction in entertaining the application under Section 41 of the Act. Section 41 of the Act enables any Settlement Officer or Chief Survey Officer or any other Officer specially empowered by the Board of Revenue to rectify the clerical or arithmetical mistake. The power can not be invoked to decide the matter on merit. There being no clerical or arithmetical mistake in the order dated 14.8.1996, vide Annexure-1, the application filed by the opposite party no.3 under Section 41 of the Act ought to have been dismissed.