The High Court
Case Details
Order No. 8. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.18632 of 2019 Mir Mustakin Alli and others Petitioners Mr. Niranjan Panda, Advocate …. -versus- State of Odisha and others ….
Legal Reasoning
Opp. Party Mr. Swayambhu Mishra, Additional Standing Counsel (For Opposite Party Nos.1 to 3) None (For Opposite Party Nos.4 and 5) CORAM: JUSTICE K.R. MOHAPATRA
Decision
ORDER 17.02.2023 1. This matter is taken up through Hybrid mode. 2. Order dated 13th August, 2019 (Annexure-3) passed by the Commissioner, Consolidation and Settlement, Odisha, Bhubaneswar in RP Case No.286 of 2016 is under challenge in this Writ Petition, whereby the Revision under Section 15(b) of the Odisha Survey and Settlement Act, 1958 (for short, ‘the Act’) filed by the Petitioners has been dismissed. 3. It is submitted by Mr. Panda, learned counsel that the Petitioners are the legal heirs of one Akim Mohammad. The property in question stands in the name of their ancestor along with others, but in the Hal Settlement, ROR has been erroneously prepared in the name of Opposite Party Nos.4 and 5. Although the Petitioners had approached the Tahasildar, Khordha for correction of the ROR, but in view of the fact that final ROR had already been prepared by then, the Petitioners had to move the Board of Revenue under Section 15(b) of the Page 1 of 4 // 2 // Act. It is his submission that crux of the matter is whether the Petitioners are legal heirs of Akim Mohammad or not. Referring to the documents, including Annexure-1, Mr. Panda, learned counsel for the Petitioners submits that in Misc. Case No.4 of 2014, the Tahasildar, Khordha has categorically observed that the ROR of 1929 was recorded in the names of Najar Mahammad, son of Sk Golap Mahammad, Sidhi Mahammad, son of Jafar Mahammad, Akim Mohammad, son of Soban Mohammad of village Pandiapada, which was subsequently renamed as Mukundaprasad. Petitioners are legal heirs of those recorded tenants. Documents to that effect were also produced before the revisional Court. But without considering the same, the Commissioner came to hold that no document showing that the Petitioners are legal heirs of Sabik recorded tenants has been filed. Accordingly, the Revision was dismissed. 4. It is his submission that Opposite Party Nos.4 and 5 also could not submit any document to show that the land in question was recorded in the name of their ancestors. In view of the above, the Commissioner should have made detailed enquiry to find out the legal-heirship of the parties and pass orders in the revision case. Without making any endeavour, the revision petition has been dismissed. Hence, this writ petition has been filed. 5. Mr. Mishra, learned ASC submits that the documents under Annexure-1 do not inspire any confidence to establish that the Petitioners are the legal heirs of Sabik recorded tenants. The documents filed are not authenticated. Further there is no material on record to show that those documents were presented/ produced before the Commissioner at the time of adjudication of the revision. It is his submission that since serious dispute with Page 2 of 4 // 3 // regard to succession of Sabik recorded tenants, is involved; the proper remedy for the Petitioners would be to approach the Civil Court. He, therefore, submits that the Commissioner has committed no error in dismissing the revision. 6. Considering the rival contentions of the parties and on perusal of record, it appears that the documents under Annexure-1 are not authenticated. It is, however, submitted by Mr. Panda, learned counsel for the Petitioners that those documents were called for by the Commissioner and Tahasildar, Khordha had produced those documents before the Commissioner. It appears that there is serious dispute with regard to locus standi of the Petitioners to claim for recording of the land in their names. The Commissioner, while adjudicating the matter, has observed as under. “The The opposite party No.2 & 3 claims that property under Hai Khata No.499 of Mouza Mukunda Prasad does not corresponds to Sabik Khata No.139 of Mouza Pandiapada. In fact, Hal Plot No.1519, 1521, 2051 & 2060 under Hal Khata No.499 corresponds sabik Plot No.2331, 2330 & 2329 under Sabik Khata No.815 & Sabik Plot No.2427, 2428, 2226, 2227 under sabik Khata No. 408 of Mouza Pandiapada. The Revision petitioner No.1 & 3 do not belong to village Mukundaprasad as described in cause title of the revision petition. In fact, they are the inhabitants of village and post Balibisi, under Ps- Kandapur, Dist-Jagatsighpur. Furthermore, no address proof of the petitioner No.1 & 3 is filed in support of their claim as resident of village-Mukundaprasad. The genealogy of Soman Mahammad given under Paragraph No.12 of the revision petition is not correct. There was no person namely Soman Mahammad in village Mukunda Prasad, so also there was no person namely Akin Mahammad, whose father's name is Soman Mohammad. Rather, there was a person namely Soban Mahammad in village-Mukunda Prasad, whose sons name was Akin Mahammad. The Revision Petitioner No.1 & 3 are not successors in-interest of said Akin Mahammad, S/O-Soban Mahammad of village-Mukundprasad. In fact, said Akin Mahammad has died issueless. The revision petitioners Page 3 of 4 // 4 // have not filed any succession certificate issued by the competent Civil Court or any legal heir certificate issued by the Competent Revenue Authority to substantiate their claim as legal heirs of Soban Mahammad of village- Mukundaprasad. Gone through the case record and documents filed by the petitioners as well as OP. No.2 & 3. It is found that, the petitioners have not filed any succession certificate issued by the competent Authority or legal heirs certificate issued by the Tahasildar to establish their claim as the successors in interest of Sabik recorded tenants since the facts is being challenged by the Opp. Parties No. 1 & 2.” In view of the observation made, it is apparent that the Petitioners are not resident of village Mukundtaprasad. Further, there is no convincing material available on record to show that they are the legal heirs of Sabik recorded tenants. Since the issue of succession is seriously disputed by the contesting Opposite Party Nos. 4 and 5, the authority under the Act are not competent to decide the same. It is civil Court, which can decide the issue involved in the present case. While exercising power under Section 15(b) of the Act, the Commissioner has very limited scope for correction of entries in the ROR only for fiscal measure. In view of the above, Commissioner could not have made a roving enquiry with regard to succession of the Petitioners, as alleged. As it is observed that no convincing document could be filed to show that the Petitioners are legal heirs of Sabik recorded tenants. This Court is of the considered opinion that the Commissioner has committed no error in dismissing the revision. 7. Accordingly, the writ petition being devoid of any merit stands dismissed. s.s.satapathy (K.R. Mohapatra) Judge Page 4 of 4