PARAMANANDA SWAIN Vs. COMMISSIONER CONSOLIDATION AND ORS.

JUDGEMENT

(1.) This petition challenges the order dated 16.10.1981 passed by the Consolidation Officer in Objection Case No. 1149 of 1979, order dated 14.5.1982 passed by the Deputy Director, Consolidation, Bhubaneswar in Appeal Case Nos. 19 of 1982 and 483 of 1981 and order dated 7.6.1997 passed by the Commissioner Consolidation, Bhubaneswar in Revision Case Nos. 662/83 and 122/87, vide Annexures 3,4 and 5 respectively. By order dated 7.6.1997, the Commissioner Consolidation, Bhubaneswar dismissed the revision filed by the petitioner and allowed the revision filed by the opposite party No. 4.

(2.) The case of the petitioners is that as per sabik record -of -right published in the year 1927 -28, sabik khata No. 212 measuring an area of Ac.3.40 dec. was recorded in the name of Udayanath Mohanty and Kasinath Mohanty. Bikei Swain and Madan Swain were sikim tenants under them in respect of the aforesaid holding. The area consists of 23 plots. Subsequently, Udayanath and Kasinath sold the entire area to Adikanda Mohanty. Thereafter, Adikanda sold the same to Paramananda Swain, predecessor -in -interest of the petitioners (hereinafter referred to as "the petitioner") and Dharmananda Swain jointly on 12.8.1936. On a partition between the petitioner and Dharmananda, each got Ac.1.70 dec. and accordingly they possessed the land separately. On 31.8.1937, the petitioner purchased the sikim right from Madan in respect of 8 annas share by means of registered sale deed and became the owner in possession of Ac.1.70 dec. Subsequently, on 5.11.1947, Banamali Swain, another sikim tenant, executed the registered sale deed in favour of the petitioner; whereafter the petitioner became the owner of the entire holding. On 16.4.1958, the petitioner executed a sale deed in favour of Kasinath, predecessor -in -interest of opposite parties 4/a to 4/j in respect of the area of Ac.2.77 dec. out of total Ac.4.89 dec. appertaining to khata No. 178, Ac.1.37 dec. out of total Ac.13.65 decs. under khata No. 132, Ac.0.39 dec. out of total Ac.2.37 dec. under khata No. 108, Ac.0.33 1/3 dec. out of total Ac.0.50 dec. under khata No. 256, Ac.1.70 2/3 out of total Ac.2.56 dec. under khata No. 50. It is further stated that by mistake, the lands covered under sabik khata No. 212 corresponding to hal khata No. 338, Ac.1.70 dec. out of Ac.3.40 dec. was mentioned in the schedule of the sale deed. The petitioner continued to possess the said land peacefully after execution of the sale deed. He used to pay rent.

(3.) While the matter stood thus, consolidation operation in the area, where the land falls, started. The land register was prepared in the name of the petitioner in respect of the disputed land. Opposite party No. 4 filed Objection Case No. 918 of 1979 before the Assistant Consolidation Officer, Garhatusina Camp to record his name in respect of the lands purchased by him by means of registered sale deed No. 2305 dated 16.4.1958. The Assistant Consolidation Officer allowed the claim of opposite party No. 4 on 17.12.1979. Against the said order, petitioner filed appeal before the Deputy Director, Consolidation, Bhubaneswar. He remanded the matter to the Consolidation Officer for fresh adjudication. After remand, Consolidation Officer tagged two objection cases i.e. Objection Case No. 917 filed by opposite party No. 4 and another Objection Case No. 1149 filed by Rajiv Swain and Hari Swain. The land covered in both the objection cases relates to sabik khata No. 212 corresponding to hal khata No. 338. So far as objection filed by Rajiv and Hari is concerned, their claim was against Dharmananda alone, the other co -sharer of the petitioner, since they were tenants under him. The objection case filed by him had no bearing with the case of the petitioner. In course of hearing, the Consolidation Officer directed the Amin to make an enquiry about the possession of the land. The Amin conducted the field enquiry and found that opposite party No. 4 was not in possession of the land. He found that the petitioner was in possession of the land. By order dated 16.10.1981, the Consolidation Officer came to hold that the petitioner was in possession of the land. There was no partition amongst the co -sharers. It was further held that there was no reason to delete the note of possession of the petitioner. Against the said order, petitioner filed Appeal Case No. 19 of 1982, wherein opposite party No. 4 filed Appeal Case No. 483 of 1981 before the Deputy Director Consolidation, Bhubaneswar. The appellate authority by order dated 14.5.1982 dismissed the appeal and thereby confirmed the order passed by the Consolidation Officer. Against the said order, petitioner filed Revision Case No. 122 of 1987. Opposite party No. 4 also filed Revision Case No. 662 of 1983 before the Commissioner, Consolidation, Bhubaneswar. The Commissioner by order dated 7.6.1997 allowed the revision filed by opposite party No. 4 and dismissed the revision filed by the petitioner. Both the orders are assailed in this case.