BALARAM SWAIN Vs. RABINDRA SWAIN

JUDGEMENT

(1.) THE Order Dated 2 -8 1999 passed by the Commissioner of Consolidation, Cuttack in Misc Case No. 330 of 1998, vide Annexure 4, is assailed in this Writ application.

(2.) THE dispute relates to Ac. 0.19 decimals of land appertaining to Hal plot No. 469, Hal Khata No. 410 of Mouza Nunigaon, Govindpur in the district of Cuttack. One Bhagu Barik was the original owner of the disputed land. By a registered sale deed dated 16 -11 -1976 said Bhagu Barik had sold that land jointly to Jagabandhu Swain, Balaram Swain and Trilochan Swain. The Petitioners, in this Writ application, are the legal heirs and successors of Jagabandhu Swain. Admittedly the aforesaid three persons were possessing the disputed land according to their convenience. According to the Petitioners, there was no partition of the disputed land by metes and bounds, but then Jagabandhu being the only earning member among the three brothers, had constructed of a double -storeyed building. and was staying therein with his family separately. After the Mouza in which the disputed land situated was brought under consolidation operation as per the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the Act), an Objection Case was filed by Jagabandhu inter alia claiming partition of the disputed land allotting the portion over which the double -storeyed building stood in his favour. The said Objection Case was numbered as 505 of 1989. Similarly his other two co -owners had filed Objection Case Nos. 504 of 1989 and 204 of 1989 Under Section 9(3) of the Act claiming to record their respective portions in the disputed land separately by way of partition. All the three Objection Cases were heard together and by Order Dated 8 -7 -1993 the Consolidation Officer, Niali disposed of the Objection Cases directing to record the disputed land jointly in favour of all the three co -owners.

(3.) THE Petitioners, who were the co -owners of Jagabandhu filed Misc.Case No. 330 of 1998 before the Commissioner praying to review/recall the aforesaid Order Dated. 5 -5 -1997 passed in the Revision Case and to re -hear the Revision Case mainly on the ground that no opportunity of hearing had been afforded to them by the Revisional authority. The Commissioner observed that the Petitioners had been represented through their Counsel who was present in Court. Even otherwise, he held, Revision Case No. 101 of 1995 had been disposed of on merit by order passed on 5.5.1997. A petition filed by the Petitioners to recall the said Order Dated 5.5.1997, being Misc.Case No. 111 of 1997 had been dismissed for default on 6 -8 -1997. Then, to restore the said Misc.Case, the Petitioners had filed a petition. The Commissioner observed that the Petitioners were negligent from the very beginning and no sufficient cause had been shown by them with regard to their default. Being aggrieved by the said order refusing to restore Misc.Case No. 111 of 1997 the Petitioners have filed this Writ application.