GIRIDHARI RAUTRAY AND PRAHALLAD Vs. SARAT CHANDRA RAUTRAY

JUDGEMENT

(1.) THE petitioners assail the order (Annexure -3) of the Commissioner of Consolidations (opp. party No. 3) under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (for short, 'the Act') directing to record the lands in the proportion of half and half between the parties instead of 2/3rd and 1/3rd as claimed by them. The points involved and the parties to the writ petitions being the same, this judgment would dispose of all the three petitions.

(2.) THE dispute relates lo the Land Register Khata Nos. 362 and 49 being the Stithiban recorded lands and Khata No. 51 the lands of an intermediary interest in Thana No. 49 of Bhubaneswar Tahasil. The details of the lands with particulars are found in the orders of the consolidation authorities in Annexures -1 and 2. The case of the parties is that the petitioners represent the branch of Nabaghan, their father and opp. parties 1 and 2 represent the branch of Biswambar, both the branches being the successors of the common ancestor Chintamani. The petitioners claim higher share in the property on two grounds. Firstly that, the lands covered under Land Register Khata No. 51 was an intermediary interest which vested in the State and thereafter settled in the name of Nabaghan, father of the petitioners in Misc. Case No. 256 of 1959 -60 for which the petitioners alone are entitled to be recorded since that being the self -acquired property of their father; and secondly, the claim for such recording is on the basis that both the parties mutually agreed under a Panchyat Faisalanama dated 30 -1 -1973 that the petitioners would be entitled to 2/3rd and the opposite parties would be entitled to 1/3rd share in the properties in question. Though the Consolidation Officer and the Deputy Director of Consolidations (opp. parties 5 and 4 respectively) held that the petitioners were entitled to be recorded on the basis of such Panchayat Faisalanama, the Commissioner of Consolidations reversed the decision by stating that under the law the parties are entitled to be recorded half and half in respect of the properties in question. This decision of the Consolidation Commissioner is challenged before this Court.

(3.) THE recitals in Annexure -6 the Faislanama in categorical terms mentions that the partition of the properties in question took place on the basis of the deed itself on that day i. e. 30 -1 -1973 and there was transfer of ownership 'in presentee'. Law is well -settled that in such a case the document will be hit by Section 49 of the Indian Registration Act having not been registered as provided under Section 17 of the Act. Therefore, as rightly submitted by Mr. Kar the Panchayat Faislanama does not convey any title in respect of such relinquished share of the opposite parties in the properties under the Faislanama.