INDUMATI NAIK Vs. STATE OF ORISSA AND OTHERS

JUDGEMENT

(1.) In this writ application, the petitioner has challenged the legality of the order passed by the Commissioner, Land Records and Settlement (opposite party No. 4) under Annexure-9, wherein the revisional authority set aside the order of the Tahasildar in Mutation Case No. 49 of 1986 as well as the order of the appellate authority in Mutation Appeal No. 40 of 1987, filed at the instance of present opposite parties 2 and 3, solely on the ground that the matter related to "prepublication Settlement R. O. R. transaction" and the Tahsildar had no jurisdiction to entertain any claim for mutation on the basis of such pre/ final publication event.

(2.) The disputed property had been recorded in the name of one Kandarp Naik in the Record-of-Rights published in the year 1977. The petition claiming to have purchased the land in 1953, from said Kandrap Naik under an unregistered document filed Mutation Case No. 49 of 1986 impleading the two daughters of late Kandrap Naik who had expired. The Tahasildar allowed the said petition mainly on the ground that the present petitioner was in adverse possession of the property since 1953. The two daughters of Kandrap Naik who had not appeared in the mutation proceeding filed Mutation Appeal No. 40 of 1987. Though the said appeal was barred by time, the appellate authority condoned the delay without issuing notice to the respondent (the present petitioner) and thereafter proceeded to allow the appeal on the ground that the document being unregistered did not convey any title and that the Tahsildar had not taken into account the fact that in the R.O. R. of 1977, the note of possession had been recorded with effect from 9-7-1964. The petitioner filed Review Application purporting to be one under Rule 109 of the Mutation Manual which was rejected. Thereafter, the petitioner filed Mutation Revision before the Commissioner, Land Records, who found that the order of the Tahsildar and that of the appellate Court were without jurisdiction as the basis of the claim of the petitioner related to a pre-publication matter.

(3.) Mr. R. N. Panigrahi appearing on behalf of the petitioner has relied upon the provisions of Sec. 16 of the Orissa Survey and Settlement Act and Rules 32 and 34 of the Rules made thereunder as well as executive instruction dated 20-3-1991, and has contended that the application for mutation even on the basis of facts relatable to period prior to publication of R. O. R. was maintainable. He has submitted that the appellate authority should not have condoned delay ex parte without affording an opportunity to the present petitioner. Mr. A. K. Nanda, appearing on behalf of opposite parties 2 and 3 has submitted that the claim of the petitioner is based on a fabricated document and during the settlement proceeding, the petitioner had claimed that she was in possession from 1964, whereas subsequently she is claiming to be in possession since 1953. He has further submitted that a proceeding under Regulation 2 of 1956, is pending before the competent authority and as such the respective rights of the parties can be thrashed out there.