SMT. SUKA DEI Vs. BISHNU PAL AND ORS.

JUDGEMENT

(1.) REVISIONAL order passed by the Commissioner of Consolidation, Orissa in a proceeding under Section 36 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short, 'the Act') is under challenge. Three revision applications were taken up together, and disposed of by the impugned order (Annexure -4 to the writ application).

(2.) FACTUAL position as borne out from records is as follows : One Bishnu Pal filed three objection cases under Section 9 (3) of the Act claiming that he had equal share in the disputed properties along with Suka Dei, Dhirendra Pal, Madhabi Dei, Maheswar Dutta and Basu Das. According to Bishnu, his share was 50% while that of others was 50%. Genealogy as stated by Bishnu (opp. party No. 1 in the present writ application) was to the following effect:

(3.) MATTER was carried in revision by Bishnu. Controversy was raised by the opponents of Bishnu about the school of law which governs the parties. Acceptability of the plea of adoption and the effect of registered gift -deed dated 20 -12 -1948 executed in favour of Suka by her father Dama recorded in 1929 settlement record -of -rights, and whether such recording took away the subsisting right of Hira and Padmahati came up for consideration by the Commissioner. He held that the disputed properties are to be recorded in favour of Suka and Bishnu each having equal share. It is to be noticed here that the revisional authority held that undisputedly the ancestors of the parties belonged to Bengal and were governed by Dayabhaga school of law. But after they migrated to Orissa, they adopted the law and usage applicable to the State of Orissa. For coming to such conclusion reference was made to an order passed in a proceeding under Section 116 of the Orissa Tenancy Act. 923 on 18 -8 -1927 wherein it was observed that the widows, Hira Bewa and Padma Bewa were governed by Mitakshara School of Law. There was practically no discussion on the adoption aspect. It is fairly accepted by the learned counsel for parties that the fate of claim of the parties would depend on the question of school of Hindu Law governing the parties, and the acceptability of plea of adoption.