PURNA CHANDRA MISHRA Vs. COMMISSIONER, CONSOLIDATION

JUDGEMENT

(1.) This matter involves a challenge to the impugned orders vide Annexures-2 and 3 being passed by the Authorities under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short the "OCH&PFL Act"), thereby restoration of the order vide Annexure-1.

(2.) Short background involved in this case is that the petitioners are the legal heirs of Dasarathi Mishra and his wife - Gouri Dibya, whereas the private opposite parties belong to Raghunath, the adopted son of Baidyanath Mishra. Main branch - Baidhar Mishra had four sons, namely, Kasinath Mishra, Lokanath Mishra, Gopinath Mishra and Baidyanath Mishra. Kasinath Mishra survived by Ramachandra Mishra and then Ramachandra Mishra died leaving behind Dasarathi Mishra and his wife - Gouri Dibya. Similarly, Lokanath Mishra survived by Sriya Debi. Gopinath Mishra adopted Gunanidhi who also died issueless. Baidyanath Mishra since remained issueless adopted Raghunath. Originally Ramachandra Mishra, son of Kasinath Mishra had two sons, namely, Raghunath Mishra and Dasarathi Mishra. Since Raghunath was adopted to Baidyanath Mishra, the brother of Kasinath Mishra, Dasarathi Mishra became entitled to the entire share of Ramachandra Mishra. The second branch - Lokanath Mishra appearing to be the second son of Baidhar Mishra, one son, namely, Jogi who got married to Padma Dibya, Sriya Debi was borne out to their wedlock. Similarly, the third branch - Gopinath Mishra though adopted Gunanidhi, but this adopted son died issueless, therefore, the branch of Gopinath got extinguished. Baidyanath Mishra, the fourth son had no issue, thus adopted Raghunath, the grandson of his brother - Kasinath. Therefore, it appears that the present petitioners represent the first branch whereas the private opposite parties represent the fourth branch. Petitioners' case is that the suit land was recorded jointly in the name of Dasarathi Mishra, father of the present petitioners, Padma Dibya, W/o. Jogi Mishra, the second branch and Raghunath Mishra, adopted son of Baidyanath Mishra, the fourth branch. Dasarathi Mishra, the father of the present petitioners died at an early age leaving behind Gouri Dibya, the wife, Purna Mishra, Damodar Mishra and Dukhishyam Mishra as three sons and Haramani Dibya, a daughter. Purna Mishra died in the meantime and is being substituted by the legal heirs, i.e., petitioner nos.1(a) to 1(e). Dukhishyam Mishra having died issueless much prior to the dispute being raised, Somanath, son of Raghunath was in charge of the entire joint family property, taking advantage of which, he managed to record the share entitled to first branch together with the fourth branch in 1962-63 settlement operations. The present petitioners filed a petition under Section 9(3) of the OCH&PFL Act for recording of their names involving the disputed property. The case of the private opposite parties is that the private opposite parties claimed exclusive right, title and interest over the disputed land by virtue of a purported sale made by Gouri Dibya, the wife of Dasarathi Mishra in favour of Raghunath Mishra, the adopted son of Baidhar Mishra in the year 1946. Further, the private opposite parties asserted their title on the ground that the properties of Baidhar Mishra were amicably partitioned prior to settlement in the year 1929. As evident from the findings of original suit, the suit, i.e., O.S. no.47 of 1965 got confirmed in Title Appeal no.72 of 1967. The private opposite parties also claimed that they got their names recorded in an O.E.A. proceeding vide O.E.A. Case no.7794 of 1963-64. The Consolidation Officer disposed of the Objection Case No.674/96/2000 vide order dated 11.12.2000, thereby allowing the Objection case in favour of the petitioners on the ground that the sale purported to have been made by Gouri Dibya in favour of Raghunath Mishra was by virtue of an unregistered document and, therefore, no settlement record could have been prepared on the basis of an unregistered sale deed and further being co-sharers no claim for adverse possession was maintainable, thereby declining to accept the plea of the opposite parties on the basis of a previous partition. This Objection Case was heard along with Objection Case No.723/143/2000 and another Objection Case No.746/166 of 2000 and were disposed of vide common order dated 11.12.2000, thereby the Consolidation Officer while inclined to allow Objection Case No.674/96/2000, partly allowed the other Objection Cases which resulted in series of Appeals including the petitioners and private opposite parties in Consolidation Appeal no.13 of 2001. This appeal was also taken up along with several other appeals. Finally vide Annexure-2 the Deputy Director, Consolidation set-aside the order passed by the Consolidation Officer in Objection Case no.674/96/2000. Petitioners being aggrieved by the appeal order, preferred Consolidation Revision No.31 of 2001. The revisional authority upon hearing the parties while declining to allow the revision, confirmed the order passed by the appellate authority. Hence, the present writ petition by the revisional petitioners, subsequently substituted by their legal heirs.

(3.) Summarizing the case of the petitioners, Shri Mishra, learned counsel appearing for the petitioners submitted that the entire case of the private opposite parties finds supported from an unregistered sale deed executed by Gouri Dibya not entertainable on two grounds; firstly, the sale deed remained unregistered, therefore, not admissible in the eye of law; and secondly, Gouri Dibya being the wife of Dasarathi Mishra had limited right over the disputed property being a widow of a co- sharer. Shri Mishra, learned counsel appearing for the petitioners further submitted that since the petitioners raised a question on the acceptability of the sale deed, it was expedient on the part of the lower appellate Court to decide the said question and draw its conclusion. It is thus contended that the lower appellate Court as well as the revisional Court have failed in appreciating such a legal question. For the judgments of the appellate Court as well as the revisional Court being based mostly on invalid document, it is contended that the foundation being removed, the superstructure has to naturally fall. It is also urged by Shri Mishra, learned counsel appearing for the petitioners that the Courts below have failed in appreciating the benefit of other co-sharers for the order passed in the OEA proceeding, even though they had not joined in the application for settlement. Shri Mishra, learned counsel also urged that the property involved in the Title Suit creating a case of previous partition since completely different than the properties involved in the case at hand, no attachment to the previous partition should have been given by the Courts below, in fact, there has been no previous partition of the disputed property. Placing reliance on the decisions of the Hon'ble Apex Court as well as this Court in the cases of Yeswant Deorao Deshmukh vrs. Walchand Ramchand Kothari, reported in AIR 1951 SC 16, Gorakhnath Dubey vrs. Hari Narayan Singh and others, reported in AIR 1973 SC 2451, Chairman-cum-Managing Director, Coal India Limited and others vrs. Ananta Saha and others and Dhuma Khan vrs. Commissioner of Consolidation and others, reported in 1997 (I) OLR 222, Shri Mishra, learned counsel appearing for the petitioners attempted to take support of the judgments referred to hereinabove.