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Case Number

W.P (C) No. 33177 of 2011

Attorney(S)

M/s. Bhaktahari Mohanty, M/s. Dwarika Prasad Mohanty, T.K Mohanty, P. Swain, M. Pal
For opposite party Nos. 1 & 2: Learned Additional Government Advocate
For opposite party Nos. 3 to 7(e): None appears

Judges

Biswanath Rath, J.

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Smart Summary

Structured Summary of the Opinion (Biswanath Rath, J.)

Factual and Procedural Background

The petitioner challenged two orders (referred to as Annexures-3 & 4) arising from an objection case and an appellate proceeding under the Orissa Survey and Settlement Act (OSS Act).

As per the Record of Rights (R.O.R.) published in 1973, Sabik plot No. 4611 (Sabik Khata No. 190, Mouza-Bhubaneswar Town Unit No. 39, Gadakana, P.S.-New Capital, Dist.-Khurda) measuring 5.520 acres was recorded in the names of Kailash Chandra Jena and Baikuntha Jena (together holding an 8 anna share), Ugrasena Jena (4 anna share), and Chakradhara Jena and Shayamsundar Jena (2 anna share each).

The petitioner purchased an area of 0.06 acre and 9 Kadi from Kailash Chandra Jena (opposite party No. 3) and Baikuntha Jena (opposite party No. 4) by a registered sale deed dated 31.10.1994. An objection case was registered as No. 2880. A local inquiry reported the petitioner's possession of the disputed land, but the objection case was disposed of by an order dated 03.07.2002 rejecting the petitioner's claim on the ground that the sale lacked consent of the other co-sharers.

The petitioner filed a revision under Section 32 of the OSS Act (Revision Petition No. 3035 of 2002). The Commissioner of Land Records and Settlement remanded the matter to the Settlement Officer treating the revision as a suo-motu appeal; on remand it was registered as Appeal Suit No. 231/2003. Despite the inquiry report showing the petitioner's possession, the appellate authority dismissed the appeal by order dated 21.12.2006, upholding the original rejection.

Legal Issues Presented

Whether the sale deed (registered 31.10.1994) executed by Kailash Chandra Jena and Baikuntha Jena in favour of the petitioner was legally valid and sufficient to entitle the petitioner to have her name recorded in the Record of Rights for the purchased extent.
Whether the Original Authority and the Appellate Authority correctly rejected the petitioner's claim in the objection proceeding despite the inquiry report indicating possession by the petitioner.
Whether the Appellate Authority had jurisdiction under the OSS Act to make observations or change the "Kisam" (classification) of the land as part of its appellate order.

Arguments of the Parties

Petitioner's Arguments

The vendors (Kailash Chandra Jena and Baikuntha Jena) jointly held an 8 anna share and validly sold to the petitioner an area (Ac.0.06 decimals 9 Kadi) within their share by a registered sale deed dated 31.10.1994, so the sale is lawful.
Both lower forums failed to appreciate that the sale was within the vendors' share and wrongly rejected the petitioner's claim.
The local inquiry report supported the petitioner's possession, and because none of the private opposite parties appeared or objected before the authority, the rejection was illegal.
The appellate court exceeded jurisdiction by addressing change of Kisam (land classification), which was beyond its powers under the OSS Act.

State's Arguments

The State, supporting the orders below, submitted that a reading of the documents (Annexure-1 and the impugned orders) shows no error by the authorities; the findings rejecting the petitioner's claim leave no scope for interference by this Court and the writ petition should be dismissed.

There was no appearance by opposite parties Nos. 3 to 7(e); notice to opposite party No. 4(B) was dispensed with.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court examined the documentary record (Annexure-1, the Record of Rights, and Annexure-2, the registered sale deed) and the administrative findings of possession from the local inquiry called in the objection proceeding.

Step-by-step analysis by the Court:

Identification of ownership in R.O.R.: The R.O.R. (Annexure-1) clearly recorded Kailash Chandra Jena and Baikuntha Jena as jointly holding an 8 anna share in the entire plot of 5.520 acres (including another patch of 0.160 decimals).
Validity of the sale deed: Annexure-2 (registered sale deed) showed that the two persons (Kailash Chandra Jena & Baikuntha Jena — opposite parties Nos. 3 & 4) sold to the petitioner a part of their portion measuring 0.06 acre and 9 Kadi. Given their recorded 8 anna share, the Court found they had the right, title and interest to execute the sale to the particular extent transferred.
Possession corroborated by inquiry: The local inquiry report called in the objection case established the petitioner's possession of the land purchased under the sale deed.
On the question of consent of co-sharers: The Court held that because the sale was made by the true owners of the relevant share, the objection that the sale was invalid for lack of consent of other co-owners was not supported by the factual record; the sale was a sale of share and, absent other factual infirmities, not vitiated for want of consent.
On appellate observation regarding change of Kisam: The Court concluded that the Appellate Authority, in exercising powers under the OSS Act, had no jurisdiction to make observations or change the classification (Kisam) of the land; that observation was therefore erroneous and beyond competency.
Conclusion from analysis: Because (i) the R.O.R. showed the vendors' 8 anna share, (ii) the sale deed validly effected transfer of a portion of that share, and (iii) the inquiry established possession, the authorities' rejection of the petitioner's claim was based on erroneous observations and failed to appropriately consider the factual record.

Holding and Implications

Holding: The Court set aside the orders passed by the Original Authority and the Appellate Authority (Annexures-3 & 4) as illegal, allowed the petitioner's objection case, and directed inclusion of the petitioner's name in the Record of Rights confined to the extent of land purchased under Annexure-2.

Specific directives and immediate consequences:

The orders under Annexures-3 & 4 are set aside.
The objection case at the instance of the petitioner is allowed.
The petitioner is to be recorded in the Record of Rights only to the extent of the land described in Annexure-2 (the registered sale deed).
The recording (inclusion of the petitioner's name) shall be completed within one month from the date of communication of this order.
Each party is to bear their own costs.

Broader implications: The opinion does not announce or rely upon any judicial precedent and does not purport to lay down a new legal principle; it resolves the specific dispute on the facts and the statutory framework applied by the Court. The decision reaffirms that where recorded proprietorship and a valid registered sale deed are consistent with the transferred extent and possession is established, administrative rejection on the sole ground of absence of consent from other co-sharers (without further supporting facts) may be unsustainable. The Court also emphasized limits of appellate jurisdiction under the OSS Act by holding that altering land classification (Kisam) was beyond the appellate authority's competence in this matter.

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Smt. Urmila Patra Petitioner v. The Settlement Officer, Cuttack Major Settlement, Cuttack & Others Opposite Parties

Biswanath Rath, J.:— This writ petition has been filed by the petitioner assailing the orders under Annexures-3 & 4 respectively in the matter of objection case and the appeal at the instance of the petitioner passed by the competent authority in exercise of power under Orissa Survey and Settlement Act.

2. Short background involved in this case is that as per the R.O.R published in the year 1973, the land appertaining to Sabik plot No. 4611 under Sabik Khata No. 190, Mouza-Bhubaneswar Town Unit No. 39, Gadakana, P.S-New Capital, Dist.-Khurda measuring area Ac.5.520 decimals stood recorded in the name of Kailash Chandra Jena, Baikuntha Jena with 8 anna share, Ugrasena Jena with 4 anna Shares, Chakradhara Jena and Shayamsundar Jena with 2 anna share each. The petitioner claimed that out of the aforesaid land she has purchased an area of Ac.0.06 decimals 9 Kadi from Kailash Chandra Jena-opposite party No. 3 and Baikuntha Jena-opposite party No. 4. Both of them had jointly 8 anna share over the disputed land. The said transaction had taken place through a registered sale deed dated 31.10.1994 The objection case was registered as 2880. Local inquiry was conducted under the petitioner's claim and the report was submitted showing petitioner's possession over the disputed land. The objection case was disposed of with an order of rejection dated 3.7.2002 holding that the land sold cannot be recorded for having no consent in the sale by other co-sharers.

3. Being aggrieved by the order passed in the Objection Case No. 2880, the petitioner filed a revision before the Commissioner, Land Records and Settlement, Orissa, Cuttack under Section 32 of the OSS Act, which was registered as Revision Petition No. 3035 of 2002. It is claimed that the Commissioner, Land Records and Settlement, Orissa by its order dated 15.5.2002 remanded the matter to the Settlement Officer, Cuttack Major Settlement to pass order considering the revision petition as a suo-motu appeal. On remand, the appeal was registered as Appeal Suit No. 231/2003 based on an inquiry report, despite the inquiry report showing possession of the petitioner, learned Appellate Court by its order dated 21.12.2006 dismissed the appeal upholding the decision of the Original Authority in the objection case.

4. In assailing the orders under Annexures-3 & 4, learned counsel for the petitioner contended that the vendors of the petitioner had 8 anna share over the Sabik Plot No. 4611 and they having transferred Ac.0.060 decimal 9 Kadi out of the land in their favour and the sale having been within the extent of their share, there was no illegality in the sale deed. Consequently, it is claimed that both the Courts below have failed in appreciating the aforesaid aspect and have illegally rejected the claim of the petitioner on an erroneous impression. Learned counsel for the petitioner further contended that the inquiry report has a clear support to the petitioner's case. This apart, since none of the private opposite parties appeared before the Court below and did not raise any objection, in absence of any such objection, rejection of the claim of petitioner becomes illegal. So far as the observation of the appellate Court regarding change of Kisam of the land since was not within the jurisdiction of the appellate Court, it is contended that the appellate Court has also exercised its power without the power being conferred on him.

5. It appears that following the order No. 29, notice has been made sufficient on all the parties except opposite party No. 4(B), notice on whom is dispensed with vide order No. 15 dated 15.1.2013 In spite of service of notice there is no appearance on behalf of the opposite party Nos. 3 to 7 (e).

6. Learned State Counsel in his opposition while supporting the orders passed by the Courts below submitted that from reading of the documents vide Annexure-1 conjointly with the orders passed by both the Courts below, there appears no error on the part of the authorities below, with the findings rejecting the claims of the petitioner it leaves no scope for this Court for interfering in the impugned order and thus, claimed the writ petition should be dismissed as such.

7. Considering the contentions of the rival parties, this Court finds the petitioner's claim in paragraph No. 3 that the whole land belonged to the original owners measuring area acre 5.520 decimals stood recorded in the name of Kailash Chandra Jena, Baikuntha Jena with 8 Ana share, Ugrasena Jena with 4 anna share and C. Jena and S.S Jena with 2 Ana share based on Annexure-1.

8. Reading of Annexure-1-the Record of Rights issued by the competent authority, there is a clear indication of Kailash Chandra Jena and Baikuntha Jena having 8 Ana share over the whole land measuring Acre 5.520 including another patch of land measuring 0.160 decimals. Reading of Annexure-2-registered sale deed in proof of sale of land by K. Jena, Baikuntha Jena in favour of Smt. Urmila Patra-present petitioner, this Court finds the two persons namely Kailash Chandra Jena & Baikuntha Jena opposite party Nos. 3 & 4 having valid right title interest to the particular extent of land based on Annexure-1 have entered into the sale deed vide Annexure-2 with the petitioner selling a part of their portion of land measuring acre 0.06 decimals and 9 Kadi. Looking to the objection case at the instance of the petitioner, it also appears that the petitioner had a claim before the competent authority for recording his name in the record of rights involving the property purchased under Annexure-2 by way of a registered sale deed to the extent of the land she had purchased by virtue of the sale deed. A report was called for in the objection case and from the recordings made in the impugned order, it clearly appears that the report also established possession of the land in favour of the present petitioner. Since the sale deed is valid for the reason of sale of land by the true owners of the land in their full right title interest, this Court finds neither there was any illegality in the same nor any illegality in the claim of the petitioner. Therefore, the authority dealing with the objection case declining the claim of the petitioner is based on erroneous observations. Taking the sale deed into consideration and the right title interest of the property with the particular party sold under Annexure-2 and looking to the clear recording of 8 anna share in favour of Kailash Chandra Jena and Baikuntha Jena the opposite party Nos. 3 & 4 respectively over the disputed property, this Court finds there is no illegality in the sale by Kailash Chandra Jena and Baikuntha Jena but however, since the property remained in jointness, the sale by virtue of Annexure-1 will be only the sale of the share and without identification of any property involved in Annexure-1. In such event, since the sale deed is valid and the objection by the other co-owners that the sale becomes invalid for having no consent of others is not only illegal but also contrary to the factual position available in the case.

9. Looking to the observations made in the impugned order vide Annexure-4, this Court finds in view of the findings of this Court hereinabove holding the sale deed as valid and as a consequence of which, the claim at the instance of the petitioner in the objection case also remains valid, this Court finds the observation of the original authority as well as the appellate authority are improper and not in appropriate consideration of the factual aspect available in the matter. So far as the observations in relation to change of Kisam of the land as held by the appellate authority are concerned, this Court finds the authority in exercising its power under the Orissa Survey and Settlement Act had no jurisdiction to enter into such aspect. Therefore, the observation with regard to change of classification of the land is also erroneous as without competency.

10. Under the circumstances, this Court finds the orders passed by both the authorities under Annexures-3 & 4 since illegal, are set aside and as a consequence of the observation hereinabove, this Court allows the objection case at the instance of the petitioner and directs for inclusion of the name of the petitioner in the record of rights confining to the extent of land purchased under Annexure-2.

11. The recording of the name of the petitioner in the disputed property be made within one month from the date of communication of this order.

12. The writ petitions stands allowed with the directions contained hereinabove. Parties are directed to bear their own cost.

Smt. Urmila Patra Pe... v. The Settlement Offic...