JUDGMENT
A. Pasayat, J.
1. Petittioner calls in question legality of order passed by the Commissioner of Consolidation, Orissa in a proceeding underSection 37 of Orissa Consolidation of Holdings and Prevention of Fragemantation of Land Act, 1972 (in short, the ‘Act’) accepting plea of adoption raised by Bhikari Charan Sahu (opp. party No. 1) and reversing adjudications in favour of petitioner as done by the Consolidation Officer, Kendrapara and Deputy Director, Consolidation, Range -Ill, Kendrapara.
2. A brief reference to the factual aspects is necessary. The genealogy so far as relevant is essentially as follows :
Mana
_________________________________|_________________________
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Radha Madhu Gadei
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Sobani Chintamani ____________
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Dinabandhu Banambar Dukhei: Ullucha Sukhei
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Basanta
Petitioner’s claim is based on adjudication in T. S. No. 16 of 1936 of the Subordinate Judge, Cuttack. According to him land in question was allotted to him in the final decree proceeding in the aforesaid case. Bhikari on the other hand, claimed to have been adopted by Dukhei. As per the genealogy, Mana had three sons viz. Radha, Madhu and Gadei. So far as present dispute is concerned, it relates to Gadei’s branch. Gadei had two sons namely. Dukhei and Sukhei. Dukhei’s widow is Ullucha, whereas petitioner is Sukhei’s son. Undisputadly, no child was born to Dukhei and Ullucha. Bhikari claims to have been adapted by them. The question whether there was any adoption is subject-matter of dispute in T. S. No. 19 of 1963 pending before the learned Subordinate Judge, Kendrapara. The Consolidation Officer and Deputy Director did not go into the claim of adoption, being of the view that such a question cannot be adjudicated by any authority under the Act. The appellate authority further held, that even if plea of adoption is entertained, the same was not established.” Before the revisional authority it was stated that revision filed by Bhikari was not entertained, because of bar imposed underSection 14 of the Act. The Commissioner entertained the application in exercise of power underSection 37 (1) of the Act, though he accepted that bar underSection 14 operated. Taking note of school leaving certificate of the year 1944 and admission register of the year 1949, he held that plea of adoption has been established. He was of the view that final decree relied upon by. petitioner did n6t specifically show about allotment of land in dispute in favour of petitioner. Accordingly he accepted Bhikari’s prayer for revision.
3. Mr. P. K. Parida, learned counsel for petitioner submitted that exercise of power underSection 37 of the Act by the Commissioner was uncalled for, as no reason was indicated as to why statutory remedy provided underSection 36 was not availed. Secondly, it is submitted that analysis made by the Commissioner is erroneous. Several documents which had relevance were not considered, and even the impugned order does not show that the documents in question received consideration. Mr. Deepak Miora. learned counsel appearing for opp. party No. 1 submitted that Commissioner has considered the documents filed by Bhikari as well as those filed by petitioner, and on comparison of their respective evidentiary value has preferred those filed by Bhikari, in suport of his plea of adoption. Fin3t decree in the suit did not specifically show about allotment of land in question to the petitioner and therefore, finding of fact rendered by Commissioner should not be disturbed in exercise of jurisdiction under Art. .226 of the Constitution of India. .
4. The Consolidation authorities exercise special jurisdiction conferred upon them by the statute. Section 51 of the Act throws sufficient light on the matter. Questions relating to right, title interest and liability in any land are to be decided by the consodation 1 authorities, except those which can be decided by Civil Court-and are I therefore, out of bounds by them. In deciding question of right, title. I interest and liability in the land, questions and issues relatable thereto I arise for decision. Decisions on the question of right, title, interest I and liability depend and hinge on decision on the connection questions I which are to be decided ancillarily and incidentally. It is to be noted I that in order to secure relief prayed for suitor has to in some cases clear i hurdles and impediments like judgment or order of a Court or a docu 1 merit. ‘ Civil Court alone has jurisdiction to set aside judgment or a I document which is voidable. Void documents or transactions being I non set in the eye of law. can be ignored. Where consideration 1 relates to such a document or transaction, consoldation authorities have I jurisdiction. ,But where controversy centres around documents, A transactions, judgments etc which are voidable, jurisdiction lies with the Civil Court alone. Questions which do not necessitate inter- ference of the Civil Court and can be ancillarily and incidentally decided and on the resolution of which would depend on decision as “to right, title, interest and liability in land, come within jurisdiction of consolidation authorities, Questions of relationship pertain to legal character or status. It was held in Jairam Samantray v. Baikuntha Samantray and Ors., 1991 (I) OLR 29 that question of adoption can be decided by the consolidation authorities. The Consolidation Officer and appellate authority had not decided the question of adoption being of the view that such a question was not to be decided by the consolidation authorities, and as a consequence dispute relating to adoption was not adjudicated by them. The Commissioner was right in his view that such a question can be decided by the consolidation authorities
5. So far as question whether the Commissioner was justified in exercising power underSection 37 of the Act is concerned, it is to be noted that such power is not to be exercised in a routine manner. Section 37 is intended to further ends of justice, and is not intended to set as a camou lage to get over statutory bars and prohibitions. Where the Commissioner finds that there were genuine grounds for which there was non-prosecution of the remedies available, in order to prevent ¦ abuse of the process of law and to nullify illegalities the power may be exercise This should not be exercised in a routine manner to re-provide remedies which have been statutorily taken away or restricted. To entertain an application under Sec, 37 without compelling and , or extenuating circumstances would be improper. It would depend on facts and circumstances of each case, background facts have to be fathomed and the reasons for which statutory remedies could not be availed have to be considered by the Consolidation Commissioner. Such power is to be exercised with care, caution and circumspection, and any liberal construction would take away the rigorous imposed by the statute. These aspects were highlighted by this Court in Ms Modern Fabricators, firm represented by Satyabrata Mohanty v. Rajendra Harichandan and Ors., 1992 (i) OLR 322. The Commissioner in the case at hand, exercised power taking note of the fact that the Consolidation Officer and appellate authority erroneously took the view that there-was no scope for considering case of adoption. In that view of the matter, we do not find any irregularity in exercise of power underSection 37 of the Act by the Commissioner. The moot question that needs consideration is whether conclusions of the Commissioner are proper. He placed reliance on lower primary school leaving certificate and admission register in the High School to accept plea of adoption. Petitioner has relied upon several documents in support of his claim to show that relatives and even Ullucha, the alleged adoptive mother accepted that she was issueless. According to him these materials clearly show falsity in Bhikari’s claim. The Commissioner came to hold that final decree did not specifically show about allotment of land to petitioner. Plea of adoption was considered for the first time by the Commissioner. Adoption was claimed to have been done in early forties. Petitioner’s stand is that final decree clearly indicates allotment of land to him and the Commissioner has made abrupt conclusion that there was no material in that regard. In a case relating to adoption oral evidence of relatives can be of considerable value. Section 50 of Indian Evidence Act, 1972 in short, the ‘Evidence Act’) is relevant. What the Court wants under Section 50 is the opinion expressed by the conduct of any person who as a member of the family or otherwise had special means of knowledge of the relationship. Evidence of the conduct of relations, friends, and neighbours will be relevant. Some of the document] filed by petitioner show that Ullucha accepted to be issuelesi. Mr. Deepak Misra.learned counsel for Bhikari submits that such acceptance does not necessaril lead to the conclusion that there was no adoption. Adoption took place because Ullucha was issueless. We feel that further materials are necessary to be considered. There was no scope for tendering oral evidence because of the view of the Consolidation Officer and appellate authority. There is no particular kind of evidence required to prove an adoption. Those who rely on it must establish it like any other fact, whether they are plantiffs or defendants, claimants or objectors. Any person who seeks to displace the natural succession of property by alleging an adoption . must discharge the burden that lies upon him by proof of the factum of adoption and the performance of any necessary ceremonies as well as all such facts as are necessary to constitute a valid adoption. Though at the touchstone of credibility, documents have to get preference, yet in case of adoption, primacy of evidence underSection 50 of the Evidence Act cannot be lost sight of. This is a fit case where matter needs further consideration by the authorities.
6. Accordingly, we set aside the revisional order, Annexure-10 with which orders of the Consolidation Officer and appellate authority have got merged and remit the matter back to the Consolidation Officer, Kendrapara for fresh adjudication. The Consolidation Officer shall consider the matter afresh, uninfluenced by any conclusion drawn earlier. To avoid unnecessary delay, parties are directed to appear before the concerned Consolidation Officer on 21-3-1995, without any further notice. The Officer shall fix up the date for further hearing. He would do well to dispose of the proceeding by the end of July, 1995. All materials as already placed and or as may be further placed shall be considered by the Consolidation Officer.
The writ application is allowed. No costs.
P.C. Naik, J.
7. I agree.