Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K W.P.(C) NO.8560 OF 2012 An application under Articles 226 & 227 of the Constitution of India. Amulya Kumar Sahu and others : Petitioners -Versus- Ananta Charan Nayak & Ors. : Opposite Parties For Petitioners : Mr.B.Baug, Adv. For O.Ps. : Mr.S.P.Panda,AGA J U D G M E N T CORAM : JUSTICE BISWANATH RATH Date of Hearing & Judgment : 19.01.2023 1. The Writ Petition involves a challenge to the order of the Appellate Authority in Mutation Appeal No.41 of 2000 vide Annexure-4 decided by the Competent Authority in exercise of power under the provision of O.S.S. Act. 2. From the order dated 16.05.2012, this Court finds, there is already direction for issuing of notice to the Opposite Party No.1 herein and the Office note on 08.06.2012 observes, A.D. returned after valid service on Opposite Party No.1. Despite valid service, nobody is appearing to contest the matter on behalf of Opposite Party No.1, the sole contesting Opposite Party herein. This matter Page 1 of 7 // 2 //
Legal Reasoning
In the above circumstance, this Court interferes in the order at Annexure-4, setting aside the same in the revived order of the Page 6 of 7 // 7 // Tahasildar at Annexure-3 and directing the Tahasildar, Basta to bring the Record of Right strictly in terms of observation at Annexure-3 by bringing corrected Record of Right at least within a period of one month from the date of communication of this order by the Petitioner.
Arguments
is accordingly decided only in the involvement of learned counsel for the Petitioners, the submission raised by learned State Counsel and the materials available on record. 3. Background involving the case is the order at Annexure-1 undisputedly the Record of Right issued disclosing Smt.Dhiramani Naik as the owner of the property. For intervention of a settlement deed and a sale deed between Smt.Dhiramani Naik and the father of the present Petitioners, an attempt was made under the provision of Section 15(b) of the O.S.S. Act for bringing necessary correction to the land records bearing Settlement Revision No.1372 of 1989 appears to be also involved Smt.Dhiramani Naik but in terms of observations in the settlement deed a registered one. This proceeding was decided on contest and in the ultimate decision of the Commissioner, Consolidation and Settlement, Orissa, Bhubaneswar allowing the Revision, the Commissioner directed to bring the Record of Right in terms of the condition in the settlement deed between the father of the Petitioners and the original land owner i.e. Smt.Dhiramani Naik. There is no dispute that the order in the Settlement Revision No.1372 of 1989 has not been challenged any further. In the meantime and on the foundation under Annexure-2, an attempt was made by the Petitioners in Mutation Case No.1529 of 1998 for correction of the Record of Right also involving the fact of death of the original owner in the meantime bringing back the sale deed into action and making the settlement deed inoperative. Vide Annexure-3, the Tahasildar, Basta in consideration of the development taken place in the meantime and finding strength on the claim through the decision in the Revisional Authority involved herein finally allowed the Mutation Case thereby directing for correction of the Page 2 of 7 // 3 // Record of Right indicating the Petitioners are the land owners. It is at this stage of the matter, Mr.Baug, learned counsel for the Petitioner claims that third party- the present Opposite Party No.1 brought the Appeal in Mutation Appeal No.41 of 2000. Foundation in the Appeal shows claims of the Appellant therein was based on a gift deed on 23.04.1997. It appears after the notice to the present Petitioners, the Appellate Authority in spite of the availability of all the above facts i.e. the original owner is already dead and their stand a registered sale deed in favour of the mutation applicants and there is already death of Smt.Dhiramani Naik. The Sub- Collector, Balasore being the Appellate Authority interfering in the Tahasildar’s order, setting aside the same, directed the Tahasildar to follow the order passed in Settlement Revision No.1372 of 1989. 4. Mr.Baug, learned counsel for the Petitioners taking this Court to the entire facts narrated hereinabove, the development in bringing back the sale deed between the original owner and the Petitioners to motion on the death of the original land owner making the settlement between the original owner and the Petitioners father already passed in the meantime inoperative and/or lapsed, contends even assuming the Appellant therein brought a litigation on the basis of a registered gift deed created by Smt.Dhiramani Naik just before her death and the Tahasildar already allowed the Mutation Application on the available materials not only taking into account the death of the original owner but also based his finding on the basis of sale deed getting revived. Mr.Baug, learned counsel contended the Appellate Authority in the event of any contingency for availability of a gift deed in worse should have remanded the matter for reconsideration by the Tahasildar involved involving the gift deed, if any, in the Page 3 of 7 // 4 // meantime. Mr. Baug, learned counsel for the Petitioner submitted that for lapse of settlement deed for death of Smt.Dhiramani Naik, in no circumstance the Appellate Authority could have directed to work in terms of settlement deed. 5. Mr.Baug, learned counsel also challenges the order at Annexure-4 on the premises that for the registered sale deed already available involving the Petitioners father and the original owner, looking to the conditions in the settlement deed also registered one, the claims of the Appellant on the basis of a registered gift deed, such request of the Appellant could have been rejected only. On the finding of such documents a nullity in the eye of law. It is in the above background, Mr. Baug, learned counsel seeks interventions of this Court in the Appellate order vide Annexure-4. 6. Mr.Panda, learned counsel for the State however taking this Court to the observations in the Appeal order, in dismissal of the Appeal finalizing directing for maintenance of record in terms of Settlement Revision No.1372 of 1989 come to be justified. Considering the original request in the mutation case was based on the order passed in the Settlement Revision no.1372 of 1989, Mr.Panda, learned State Counsel thus claims rejection of the Writ Petition for having no substance. There is however no objection by Mr.Panda, learned State Counsel on the submission of Mr.Baug, learned counsel that there was little scope with the Appellate Authority to include the gift deed in the Appeal process and the Appeal should have been decided on the available materials before the Tahasildar. There is also no denial to the situation and the effect of settlement deed after the death of Dhiramani Naik. Page 4 of 7 // 5 // 7. Considering the rival contentions of the Parties and after going through the series of development taken place right from Petitioners undertaking an exercise through Settlement Revision No.1372 of 1989 on the basis of already existing of a Registered sale deed and registered settlement deed, further in the pendency of the mutation proceeding, the original owner Smt.Dhiramani Naik died in the meantime, this Court finds, there is force in the submission of Mr.Baug, learned counsel for the Petitioner. Further with the sale deed and in the support of the settlement deed, there was no room for bringing a gift deed. Perusal of the Appeal order, this Court however finds, the Appellate Authority did not give any attachment to the gift deed, the foundation in the Appeal. It is on the other hand, the Appellate Authority strongly relied on the order in the Revision. It is at this stage, this Court finds, the foundation involving the revision proceeding though involved sale deed and further a settlement deed both registered but during pendency of mutation proceeding Smt.Naik rendering the settlement deed infructuous and the terms in the sale deed got revived and all these have been taken into account by the Tahasildar in his order in disposal of the mutation case. Further taking into consideration, the development in the Settlement Revision No.1372 of 1989, this order appears to have been passed in the surviving of the original owner Dhiramani Naik and when the conditions in the settlement deed was in force. This Court here finds, taking into account the death of Smt.Dhiramani Naik in the pendency of mutation proceeding, this aspect also included in the consideration process by the original authority, the order passed by the original authority directing for correction in the Record of Right in favour of the Page 5 of 7 // 6 // Petitioners appears to be justified and taking into account the development taken place in the meantime. 8. Looking to the background involving the Mutation Appeal No.40 of 2000 brought by Opposite Party No.1, a third party bringing a surprise case in the appeal stage. Undisputedly the case advanced by the Appellant not being available for the Mutation Authority for consideration process, for the opinion of this Court, the Appellate Authority rightly discarded the claim of the Appellant on the basis of gift deed and in dismissing the Appeal could have maintained the Tahasildar’s order. This Court here finds, the Appellate Authority failed in appreciating the development taken place on the death of Smt. Naik and thus wrongly undertook an Appeal exercise and simply relied on the Revision order. 9. This Court finds, there has been wrong approach adopted by the Appellate Authority. Further the final observation of the Appellate Authority also directing the Tahasildar to prepare the Record of Right on the basis of order passed in Settlement Revision No.1372 of 1989 appears to be erroneous on the footing that in the pendency of the mutation proceeding, there has been death of the original owner making the settlement deed between the parties innocuous and bringing back the sale deed between the Petitioners and the original land owner into force. This aspect has not been properly appreciated by the Appellate Authority. Further since the Appeal was brought on the footing of a gift deed, once the Appellate Authority declined to entertain the gift deed, the Appeal should have been simply dismissed. 10.
Decision
11. The Writ Petition succeeds but in the circumstance no order as to costs. (Biswanath Rath) Judge Orissa High Court, Cuttack. The 19th January, 2023 /Swarna, Junior Stenographer Page 7 of 7