FAGU PANI Vs. STATE OF ORISSA

JUDGEMENT

(1.) This Writ Petition involves a challenge to the order vide Annexure-1 passed by the Commissioner, Land Records & Settlement, Orissa, Cuttack in a proceeding U/s.32 of the Odisha Survey & Settlement Act, 1958 hereinafter in short be called as "the Act, 1958" vide R.P. Case No.2399 of 1998, arises out of the order dated 28.1.1998 passed by the Additional Settlement Officer-opposite party no.2 in Appeal Case No.2871 of 1997 vide Annexure-2.

(2.) Short background involved in this case is that the petitioner as well as opposite party nos.4 & 5 are governed by the Mitakhara School of Hindu Law and are related to each other. They remained in jointness involving the property up to 1972. The suit land relates to village Swainkhanda, P.S. Binjharpur, Hal Khata No.564, Hal Plot No.4508, area Ac.0.28 corresponding to Sabik Plot No.3594 under Sabik Khata No.404 and it stood recorded in the name of Bhagabat Pani. Thus, the said land is the ancestral joint family property of the parties. During the settlement operation, "Parcha Slips" were also issued in favour of the petitioner and opposite party nos.4 & 5 jointly along with other lands. The opposite party no.4 filed objection case before the Assistant Settlement Officer to delete the name of the petitioner from the aforesaid Khata on the ground that the petitioner is the adopted son of Kalpataru. An Amin was deputed to enquire into the matter and it was reported by the Amin that the petitioner is the son of Bhagabat Pani and therefore, the suit land should be recorded jointly. The opposite party no.4 being aggrieved by the report and such development, filed appeal before the opposite party no.3 i.e. the Addl. Settlement Officer, Jobra, Cuttack. In the appeal, it was held that the petitioner is the adopted son of Kalpataru. In the circumstance, the name of the petitioner was sought to be deleted from the Hal Khata No.564. Being aggrieved by the order passed by the appellate authority, the petitioner filed an application U/s.32 of the Act, 1958. The petitioner to substantiate his case, urged that he has purchased a piece of land from Jhula bewa through registered sale deed alongwith opposite party. It further discloses that the petitioner is the son of Bhagabat Pani. He also relied on the Parcha slips issued in his favour showing him to be son of Bhagabat Pani and further also the voter card issued by the Election Commissioner establishing that he is the son of Bhagabat Pani. The application U/s.32 of the Act, 1958 was finally heard and decided against the petitioner on acceptance of the adoption aspect, resulting filing of the present writ petition.

(3.) Shri S.K. Dash, learned counsel for the petitioner taking this Court to the grounds raised by way of objection in the appeal as well as in the application U/s.32 of the Act, 1958 and further taking this Court to the findings of both the courts below particularly passing the impugned judgments relying on the adoption aspect contended that for the involvement of adoption aspect, unless the adoption deed remains valid or in the alternate adoption deed has been declared through the court of competent as valid, the Settlement Authority had no jurisdiction to enter into such aspect of the matter and passing the impugned judgment thereby declaring the adoption as valid. Relying on two decisions of the Hon'ble apex Court in the case of Madhusudan Das versus Smt. Narayani Bai and others as reported in AIR 1983 S.C. 114 and another in the case of Ramchandra Dagdu Sonavane (Dead) by L.Rs. and Ors. Versus Vithu Hira Mahar (Dead) by L.Rs. as reported in AIR 2010 SC 818 Shri S.K. Dash, learned counsel for the petitioner contended that for the direction of the Hon'ble apex Court that dispute involving adoption should be left open to be decided by the Civil Court, there is wrong appreciation of the legal position involved therein by both the appellate court as well as revisional court. Sri Dash, also contended that the Settlement Authority failed to appreciate the meaning of valid adoption and thereby arrived at wrong conclusion. Shri Dash in the circumstance claimed that unless the impugned orders are interfered with and set aside, the same will set a bad precedent.