AGADHU TARENI Vs. BRAHMANANDA LENKA

JUDGEMENT

(1.) THE decision dtd. 19th July, 1995 passed by Commissioner, Consolidation, Bhubaneswar in Consolidation Revision Case No.3015/1993 is assailed by the petitioner in this writ application. The said revision was filed under Section 36 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short "the Act") challenging the order dated 21.9.1993 passed by Deputy Director, Consolidation in Appeal Case No. 92/1993. The appellate Court confirmed the order dtd.27.2.1993 passed by Consolidation Officer, Gop -Kakatpur in Objection Case No.7052/1991.

(2.) FOR appreciating the dispute the short facts of the case may be stated as follows. Admittedly one Paramananda had share in the suit plot measuring Ac.1.09 dec. which were joint family ancestral property. The 1927 settlement records reveal that Ac.0.37 decs. of land was recorded in the name of Paramananda towards his half share out of Plot No.888. Paramananda had three sons namely, Sapani, Bhajani and Arjuni. After death of Paramananda all the three sons got 1/3rd. share out of the aforesaid Ac.0.37 decs. Thus the share of Sapani was Ac.0.18 decs. approx. Bauribandhu, son of Sapani, inherited Ac.0.18 decs. of land allotted in favour of his father Sapani in an amicable partition of the joint family properties. In the year 1959, Bauribandhu by a registered sale deed sold Ac.0.37 decs of land i.e. lands excess to his share to one Fakir Swain. The said Fakir Swain in the year 1963 sold the said land to one Alekh Das. After his purchase in the same year, i.e. in the year 1963 Alekh Das sold the land once again to Draupadi the widow of Bauribandhu. Thus according to the petitioner Draupadi by virtue of a sale deed executed by Alekh Das in her favour in the year 1963 became the absolute owner in respect of Ac.0.37 decs of land. While matter stood thus, Draupadi, incurred certain loan from Ram Chandra Gochhikar and as collateral security she executed a registered mortgage deed mortgaging Ac.0.37 decs. of land. She having failed to repay the loan, Ram Chandra Gochhikar took delivery of possession of the land mortgaged in his favour through Court. Thereafter he sold the land to one Biswanath Panda on 27.6.1972. In turn Biswanath sold the land to the petitioner on 5.7.1988. By virtue of the aforesaid sale deed the petitioner claims to be the rightful owner of the land measuring Ac.0.37 decs. land appertaining to L.R. Plot No.734 corresponding to Sabik Plot No.888, Khata No.106, Mouza - Barimunda. After the village came under consolidation operation, an Objection Case was filed by the petitioner to record Ac.0.37 decs. of land in his favour. The said case was registered as Objection Case No.7052/1991. The present opposite parties resisted the claim of the petitioner mainly on the ground that the total land of the joint family which was allotted in favour of the common ancestor Paramananda was Ac.0.58 decs. Thus, the share of Sapani, father of the Bauribandhu, was only Ac.0.18 decs. The other 2/3rd property belonged to two other brothers namely, Bhajani and Arjuni. According to the opposite parties the sale deed executed by Bauribandhu in favour of Fakir Swain in the year 1959 though related to Ac.0.37 decs of land, in fact Bauribandhu had right, title and interest only in respect of Ac.0.18 decs. The said land was sold to Fakir Swain. Similarly only Ac.0.18 decs. of land was sold by Fakir Swain to Alekh Das and by Alekh to Draupadi. In other words the sale deed in excess to the title is invalid. It is further submitted that Draupadi had in fact right, title and interest only in respect of Ac.0.18 decs of land and the mortgage deed executed in respect of Ac.0.37 of land was not justified.

(3.) BEING aggrieved by the said order the petitioner filed an appeal before the Deputy Director, Consolidation. The Deputy Director also after perusing the materials and hearing learned counsel for the parties confirmed the order passed by the Consolidation Officer. The said confirmed order was assailed before the Commission, Consolidation, Bhubaneswar. The revisional authority after discussing the materials was satisfied that out of Ac.0.37 decs of land Bauribandhu had title only in respect of Ac.0.18 decs. of land. Thus, the decree passed in M.S. No.69/1970 which was confirmed in T.A. No.14/1992/128/90 was confined to the aforesaid Ac.0.18 decs. of land and not to Ac.0.37 decs of land. Accordingly the Commissioner found that the revision had no merit and dismissed the same, thereby confirming the order passed by the Consolidation Officer and the Deputy Director.