ORDER
A.S. Naidu, J.
1. Invoking jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner seeks to challenge the order dated 15th February, 1997 in R.P. Case No. 2183/92 (Armexure-3) passed by the Commissioner of Consolidation, opposite party No. 2, mainly on the ground that the said order has been passed dismissing the Revision without considering the facts and circumstances of the case and misconstruing the provisions of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (hereinafter referred to as ‘the Act’) and the Rules framed thereunder.
2. The dispute relates to lands situated in village Ola under Nimapara Police Station in the district of Puri which the petitioner claims to have purchased by a registered sale deed dated 10th October, 1984 from opposite party No. 6, Kumkum Mani Mohanty. Admittedly one Gobardhan was the exclusive owner of the said land. Gobardhan had two sons, namely, Braja and Jayakrushna. Braja died in the year 1922 leaving behind his son Natabar. Jayakrushna, brother of Braja, died in the year 1924 leaving behind his daughter Kumkum (opposite party No. 6). Natabar has two sons, namely, Rama and Laxman, opposite parties 4 and 5 respectively. Natabar claimed to have been adopted by Jayakrushna. In the record-of-rights prepared in the 1927 Settlement, the disputed lands stood recorded in the name of Natabar. Natabar died in the year 1975. Thereafter there was an amicable partition between Rama and Laxman. After the village Ola came under consolidation by virtue of Notification issued under the Act, Land Register was prepared and the disputed lands were recorded in the name of Laxman (opposite party No. 5) in the Land Register. No objection was filed under Section 9(3) by any of the parties challenging the said recording as stipulated under Section 9(3) of the Act. After observing all paraphernalia, Land Register wag published under Section 13 of the Act in the year 1980. In the year 1984 the present petitioner purchased the disputed land from Kumkum (opposite party No. 6) who happens to be the daughter of Jayakrushna. Thereafter objection was filed by the petitioner disputing the recording of the disputed land made in the name of opposite party No. 5. The said objection though stated to have been filed under Section 9(3) of the Act, was treated to be one under Section 15(1) of the Act by the consolidation authorities.
3. While matter stood thus, Title Suit No.421 of 1985 was filed in the Court of the then Munsif, Puri inter alia praying for a decree of permanent injunction asserting that the petitioner on the strength of a registered sale deed executed in his favour by Kumkum (opposite party No. 6) and that the opposite party-defendants were creating disturbance in his peaceful possession. In the said suit the defendants took the stand that Natabar had been adopted by Jayakrushna and Kumkum had absolutely no right, title or interest over the disputed lands. It is pertinent to mention here that the further stand of the defendant in the said suit was that Jayakrushna had expired much before the Hindu Women’s Right to Property Act, 1934 was enacted and as such Kumkum who claimed to be the daughter of Jayakrushna had acquired absolutely no title to the disputed property. Consequently, the petitioner who had purchased the disputed property from Kumkum had also acquired no title. The Munsif however found that the said fact of adoption of Natabar by Jayakrushna had not been proved. It further observed that no evidence whatsoever had been adduced to come to a positive conclusion regarding the year of death of Jayakrushna. The Munsif dismissed the said Title Suit. Challenging the said decree, Title Appeal No. 80 of 1989 was filed. The appellate Court, however, reversed the decree of the trial Court. Thereafter Second Appeal No. 228 of 1991 was filed before this Court. The said Second Appeal was disposed of on 25.2.2003. This Court remanded the suit to the trial Court for fresh disposal with direction to the trial Court to decide as to when Jayakrushna died. The said suit after remand is still pending.
In the meanwhile, Revision Petition No. 2183/92 filed by opposite parties 4 and 5 inter alia challenging the decision of the Consolidation authorities directing to record the lands in favour of the petitioner on the strength of a sale deed executed in his favour by Kumkum in the year 1984, was allowed and the Commissioner set aside the orders passed by the lower authorities with direction to record the disputed lands in favour of opposite parties 4 and 5, vide Annexure-3. As stated earlier, the said order of the Commissioner is impugned in this Writ application.
5. Mr. R. K. Das, learned counsel appearing for the petitioner, forcefully submitted that the conclusion arrived at by the Commissioner is contrary to law. He also submitted that in consonance with the registered sale deed the petitioner acquired valid right, title and interest in respect of the disputed land and the Commissioner acted illegally and with material irregularity in holding that the said sale deed executed by Kumkum was a void document. According to Mr. Das, the Consolidation authorities have no power to set aside a sale deed.
The aforesaid contentions of Mr. Das are strongly repudiated by Mr. S. K. Nayak-2 appearing for opposite party No.5. According to Mr. Nayak, the Commissioner has taken into consideration all the facts and circumstances of the case and he has not committed any error and it is a fit case where the Writ application should be dismissed in limine.
6. I have heard learned counsel for the parties at length and have perused the materials available on record meticulously. Admittedly in the year 1980 Land Register had been published recording the disputed land in the name of Laxman (opposite party No.5). The said recording was not challenged in appeal as contemplated under Section 12 of the Act. The petitioner asserts that he had filed an objection under Section 9(3) of the Act, but then the documents filed, more particularly the order of the Consolidation Officer, clearly reveal that the objection filed by the petitioner was treated to be one under Section 15 of the Act and that was disposed of.
7. Law is well settled that if a person has not preferred any objection in consonance with Section 9 of the Act, he has no right to file any objection after final publication of the Land Register under Section 13, inasmuch as Section 14 of the Act creates a bar and stipulates that a land owner is estopped from raising any contention which he has not raised either under Section 6 or under Section 9 of the Act at subsequent stages of the consolidation proceeding. This provision is based on the doctrine of constructive res judicata and stares at the petitioner. Admittedly the objection filed by the petitioner was treated to be one under Section 15 of the Act as by the time the same was filed. Section 13 stage of the consolidation proceeding had been over. Even otherwise, as has been stated earlier, the Land Register had been prepared and published under Section 9(3) read with Section 13 of the Act in the year 1980. The sale deed was executed by Kumkum (opposite party No. 6) in favour of the petitioner in the year 1984. Section 4(2) of the Act specifically stipulates that no land owner without obtaining prior permission in writing of the Consolidation Officer shall, after publication of notification under Section 13(1), transfer by way of sale, gift or mortgage or exchange any agricultural land. As would be evident from the records, in the year 1984 the sale deed in favour of the petitioner by opposite party No. 6 had been executed alienating a portion of the lands without obtaining prior permission from the Consolidation Officer. Thus the said sale deed was hit by the provision of Section 4(2) of the Act.
8. That apart, the question as to whether Kumkum, opposite party No. 6, who claims to be the daughter of Jayakrushna had any title over the disputed land or not has to be decided in the Title Suit which is still subjudice. Opposite party No. 6 can only have title over the disputed land if her father Jayakrushna is found to have expired after 1937 when the Hindu Women’s Right to Property Act came into force. The said question is yet to be decided by the Civil Court in the aforesaid Title Suit.
9. The crux of the matter in the present case is as to whether Kumkum had any title over the disputed land and whether the said title had passed to the petitioner by virtue of the sale deed of the year 1984. The said decision depends on the narrow compass as to whether Jayakrushna died prior to 1937 or he had died thereafter. Since the Title Suit is sub judice before the concerned Civil Court, it would be better to observe judicial restraint in making any comments on the said issue.
10. Be that as it may, in view of the bar of Section 14 of the Act, the objection filed by the petitioner which was treated to be one under Section 15 having been held to be not maintainable and further as the sale deed executed by Kumkum in favour of the petitioner was hit by the provisions of Section 4(2) of the Act, the Commissioner has rightly allowed the Revision Petition filed by opposite parties 4 and 5 and directed to record the disputed land in their favour. I do not find any infirmity or illegality in the order of the Commissioner and decline to interfere with the same.
The Writ application is accordingly dismissed.