SARALA KUMARI RATH Vs. KHATI ROUT

JUDGEMENT

(1.) In this writ petition filed under Articles 226 and 227 of the Constitution, the petitioner has sought to quash the order of the Additional Settlement Officer, Cuttack passed in suo motu Case No. 16 of 1993. By the impugned order, Annexure -6, the opposite parties 1 to 4 and Ors. have been held to be Sikimi tenants in respect of Hal Plot No. 615/1346 under Khata No. 572 of village Madhupatna of Cuttack town (hereinafter referred to as 'disputed land').

(2.) THE brief facts giving rise to the present writ petition may be stated thus : During Settlement operation Hal Plot No. 615 having area of Ac. 0.248 dec. (the disputed land being part of the said plot) was recorded in the names of Sridhar Mallick and Ors. with note of possession of Banamali Rout and Ors. as Sikimi tenants under Sikimi Khata No. 3. In different stages of settlement operation, the record remained unchanged. Only at the stage of settlement of rent the petitioner filed Rent Case No. 959/128 and prayed for correction of record -of -rights in respect of the disputed land alleging, inter alia, that she has purchased the same from Kanhu Charan Mallick, one of the recorded owners by registered deed of sale dated 11.7.1980. The Assistant Settlement Officer heard the case ex parte and ordered to record the name of the petitioner in place of Kanhu Charan Mallick, the vendor. Later on, Assistant Settlement Officer on the application of Sridhar Mallick, in exercise of power conferred by Section 22(3) of the Orissa Survey and Settlement Act (hereinafter referred to as 'the Act') passed order deleting the name of the petitioner. Against the said order, the petitioner preferred revision in R.P.No. 14/90 before the Commissioner, Land Records and Settlement, Orissa, under Section 32 of the Act. The revisional authority heard the case ex parte and by order dated 15.11.1990 allowed the, revision and directed the Settlement authorities to record the name of the petitioner in respect of the suit land in the record -of -rights. The present opposite parties 1 to 4 filed an application under Order 9, Rule 13, C.P.C. which was registered as Misc., Case No. 78 of 1990. The revisional authority while rejecting the same observed that the ex parte order does not interfere with the sikimi rights of the opposite parties 1 to 4. The dispute having been resolved, final record -of -rights was prepared vide Annexure -5. Subsequently on an application being moved by the opposite parties 1 to 4, the Additional Settlement Officer in exercise of power under Section 22(2) of the Act initiated suo motu Appeal No. 16 of 1993 and by the impugned order under Annexure -6 ordered that the Sikimi right of opposite parties 1 to 4 will remain unchanged and consequently directed to prepare a separate sikimi khata in the names of the opposite parties 1 to 4 and Ors.

(3.) LEARNED counsel for the petitioner strenuously urged that the dispute between the parties having been finally resolved by the Commissioner. Land Records and Settlement in exercise of revisional power and the claim of the opposite parties 1 to 4 having not been accepted, the Addl. Settlement Officer in purported exercise of jurisdiction under Section 22 of the Act should not have sat upon the order of the revisional authority and directed to prepare sikimi khata in the names of opposite parties 1 to 4. Secondly, it was contended that sikimi -right being not heritable and transferable and in the present case sikimi tenants having died prior to 1944 upon their death the disputed land reverted back to the recorded owners and the petitioner having purchased the disputed land from one of the owners, has acquired title thereto and therefore, the impugned order passed by the Addl. Settlement Officer to prepare a separate record -of -rights in the names of the heirs of the recorded sikimi tenants being contrary to law, should be quashed.