The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P. (C) No.20595 of 2015 Makardhwaja Bhoi @ Bhue & others …. Petitioners Mr. R.C. Rath, Advocate -Versus- Sahadeb Pradhan & Others …. Opposite Parties Mr. P.K. Ray, AGA CORAM: MR. JUSTICE R.K. PATTANAIK Order No.
Decision
ORDER 22.11.2024 05. 1. Heard learned counsel for the petitioners and Mr. Ray, learned AGA for the State opposite party Nos. 4 & 5. 2. None appears for opposite party Nos. 1 to 3 at the time of call. 3. Instant revision is filed by the petitioners challenging the impugned order under Annexure-4 passed in connection with Consolidation Revision Case No. 236 of 2011 under Annexure-2 on the grounds stated. 4. Learned counsel for the petitioners submits that the petitioners approached the revisional authority on the strength of the Will executed in 1967 as at Annexure-1 with a revision filed under Section 37(1) of the OCH & PFL Act, 1972 but the same was not entertained on the ground of delay of twenty one years and for the reason that the successors of the testator disputed the genuineness of the Will in question and for the fact that the dispute is civil in nature Page 1 of 4 and thus, there is lack of jurisdiction to pass any such order. It is further submitted that the Will is of the year 1967 but it saw the light of the day after the death of the testator in 2009, whereafter, the petitioners approached the court of learned Additional Commissioner, Settlement & Consolidation, Sambalpur in the year 2011, however, it was not allowed, rather, disposed of and dismissed for them having not shown sufficient cause to explain the delay and that apart, due to the dispute raised by opposite parties vis-à-vis the genuineness of the Will. The contention is that the Will is admittedly a plain paper Will and not required to be probated as the subject involved therein situate within the limits of undivided Sambalpur district and in so far as the delay is concerned, immediately after knowing about the Will executed by the testator, who died in 2009, the petitioners have knocked the doors of the revisional authority, hence, therefore, it was to be entertained instead of being held to have been barred by limitation. 5. On the other hand, Mr. Ray, learned AGA for the State justifies the impugned order under Annexure-2 with a submission that there has been inordinate delay which was not explained by the petitioners and that apart, genuineness of the Will was questioned by the opposite parties being the successors of the testator, hence, the decision is not required to be disturbed. 6. 7. Gone through the impugned order i.e. Annexure-2. Firstly, on the ground of delay and limitation, the revision was dismissed with a conclusion by the revisional authority that the same is not duly explained. Secondly, it was for the fact that the opposite parties disputed the genuineness of the Will. Finally, with a conclusion that the dispute is civil in nature and involved questions of Page 2 of 4 facts to be taken cognizance of by the appropriate forum, not in the exercise of revisional jurisdiction, the revision was dismissed. 8. In so far as the delay aspect is concerned, the conclusion is that there has been a lapse of twenty-seven years in filing the revision and no sufficient cause is explained by the petitioners. Notwithstanding the fact that the Will is of the year 1967, it was with the testator till the time of his death and hence, revealed thereafter and having learnt about the same, the petitioners approached the revisional authority invoking jurisdiction under Section 37(1) of the OCH & PFL Act. Therefore, the delay counted from the date of Will executed could not have been justified to hold that the revision is grossly time barred, more particularly when, no limitation is prescribed. In fact, the Court finds that immediately with the death of the testator upon having received the plain paper Will which does not require to be probated, the revision was filed in 2011 and as such there has been no delay, so therefore, the petitioners did not have any reason to explain the same. Thus, the conclusion reached at by the revisional authority regarding delay is not sustainable in law and the same is therefore liable to be interfered with. As regards, genuineness of the Will executed by the testator since it has been presented before the revisional authority, to ascertain the same, it was the duty of the said authority to get it verified through opposite party No.5. It is well known that a Will is not to be probated in respect of the subject situate within the jurisdiction of the undivided Sambalpur district. Hence, the conclusion of the Court is that when a plain paper Will was produced by the petitioners before the revisional authority and it was without any delay, sometime after the death of the testator and genuineness of the same was questioned by the opposite parties, it was well within the powers of the said authority to get it verified through opposite party No.5 instead of straightaway Page 3 of 4 dismissing the revision. Such a conclusion, in the considered view of the Court, cannot be sustained in law. 9. Hence, it is ordered. 10. In the result, the writ petition stands allowed. As a necessary corollary, the impugned order under Annexure-2 is hereby set aside with the matter remitted back to the court of learned Additional Commissioner, Settlement & Consolidation, Sambalpur namely, opposite party No.4, who shall examine the Will as well as plea of the petitioners and upon verification of the same since genuineness thereof has been questioned by the private opposite parties, to proceed and to dispose of Consolidation Revision Case No. 236 of 2011 as per and in accordance with law providing an opportunity of reasonable hearing to both the sides and to pass a final order as soon as possible preferably within a period of eight weeks from the date of receipt of a copy of this order. 11. A certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Reason: Authentication Location: OHC,Cuttack Date: 27-Nov-2024 17:16:55 Page 4 of 4