BHUBANI RATH Vs. RAMAMANI BEWA

JUDGEMENT

(1.) The Petitioners in this Writ Petition have sought for quashing the order under Annexures -18, 19 and 20 passed by Consolidation the Officer, Nimapara, Deputy Director, Consolidation, Bhubaneswar and the Commissioner, Consolidation and Settlement, Orissa, in Bhubaneswar Remand Revision Case No. 467 of 1993, Appeal Case No. 9 of 2002 and Consolidation Revision No. 19 of 2004 respectively.

(2.) THE property in dispute relates to the Sabik Settlement (1929 -30), plot No. 129 measuring Ac.2.605 decimals which stood recorded in the name of Shri Laxminarayan Dev Marfat Kailash Chandra Rath under Sabik Khata No. 477 with the status of the land recorded as 'DHAKAL BISISTA SATWO' classified as 'Baje Fasal'. The said property corresponds to the 1962 Settlement plot No. 124 under khata No. 98 measuring Ac. 2.590 decimals recorded in the name of the same recorded tenant of the sabik settlement as sthitiban tenant classified as 'PURATAN PATITA'. During consolidation operation, the same was recorded under khata No. 121, appertaining to plot No. 435 measuring Ac. 2.590 classified as 'PATITA' in the name of the same recorded tenant as sthitiban. Opp. Parties 1 to 5 filed Revision Case No. 467 of 1993 before the Commissioner of Consolidation under Section 37 (1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, 'the Act') for recording an area of Ac. 1.033 decimals out of the disputed property in their favour on the strength of a registered partition deed No. 5973 dated 3.8.1941. The Commissioner, on hearing the said revision, remanded the matter to the Consolidation Officer, Nimapara for disposal Under Section 11 of the Act as per law impleading the Commissioner of Endowments as a party to the proceeding. The Consolidation Officer by his Order Dated 28.9.2001 observing that the consolidation authorities have no power to declare a document as void and if the same is void, it is only competent for the Civil Court, which can declare it to be void, disposed of the case by the following order: xx xx xx Considering upon the above facts, this Court finally reaches in the conclusion that this Court has empower to say the deed not acted upon and the disputed property is the joint family property and the right, title, interest of suit land vested with the Petitioner, as such I am inclined to pass an order allowing the claims of the Petitioner. The prayer of the Petitioner is allowed. The property purchased by the O.Ps should be valid up to their share only. Record the same as per vernacular order. The Petitioners being aggrieved by the said order passed by the Consolidation Officer preferred Appeal Case No. 9 of 2002 Under Section 12 of the Act before the Deputy Director, Consolidation, Bhubaneswar, who by his Order Dated 24.1.2004 under Annexure -19 held that the suit property was the joint family property of Rath family & the deity Laxminarayan Dev is their family deity, which is not a public one, the registered partition deed dated 23.8.1941 was acted upon & accordingly, transfer of shares of late Banchhanidhi's branch is valid to the extent of Ac. 1.033 decimals, the purchase made by the present Opp. Party No. 8 is also valid, transfer made by Kailash to the extent of his share, i.e., Ac. 0.869 decimals is a valid transfer & the title with regard to Ratnakar, S/o. Late Bhikari, who was allotted that share in the partition will continue. Holding as above, the Appellate Court allowed the claim of the Appellant Nos. 1 to 4, i.e., Petitioner Nos. 1 to 4 & the claim of the Appellant Nos. 9, 21 & 24 in support of their purchase, the Cross Appeal No. 101 of 2003 filed by some of the Opp. Parties was also disposed of by the common order by allowing the claim of the Opp. Party No. 8. The Petitioners, being aggrieved by the said order passed by the Appellate authority, preferred Consolidation Revision No. 19 of 2004, which, the Commissioner, Consolidation & Settlement, Orissa, Bhubaneswar disposed of by Order Dated 31.7.2004 under Annexure -20 confirming the order passed by the Deputy Director in the appeal. Being aggrieved, the Petitioners have filed the present Writ Petition for appropriate relief.

(3.) LEARNED Counsel for the Opp. Parties, on the contrary, submitted that the findings arrived at by the Courts below, being findings of fact, this Court should not interfere with the same, while exercising jurisdiction under Article 226 or 227 of the Constitution of India. According to the Learned Counsel for the Opp. Parties, the findings being concurrent and findings of fact, in absence of gross illegality or perversity shown on the face of the impugned order, this Court should not issue a writ of certiorari to quash the said orders. Learned Counsel further submitted that the deed of partition,, which is contended to be not binding on Ananda, being a voidable document, the Courts below have rightly held that the consolidation authorities have no jurisdiction to declare the said partition deed as a void document. The Petitioners are also estopped from challenging the legality of the said partition deed, which has been acted upon and has remained unchallenged for more than 60 years. Admittedly, the deity Laxminarayan Dev is a private deity.