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Orissa High Court
Nrusingha Charan Samal And Anr. vs Kuntala Kumari Samal And Ors. on 1 August, 2000
Equivalent citations: 2001 I OLR 208
Author: P Misra
Bench: P Misra


JUDGMENT

P.K. Misra, J.

1. These two writ applications have been filed challenging the orders passed by the Consolidation authorities. The facts giving rise to the present writ application are as follows :

Jayakrushana had three sons, Shyama, Krushna and Rajkishore. O.J.C.No. 2996/93 has been filed by the petitioners representing the branch of Rajkishore. The connected writ application has been filed by the members representing the branch of Shyama. The members of the- branch of Krushna, who have entered appearance through counsel are supporting the case of the petitioners in O.J.C. No. 2996/93,

2. During consolidation proceedings, the land was originally recorded in Rakshit Khata in the name of State Government. Two Objection Cases were initiated at the instance of the petitioners in the two writ applications. In the objection filed on behalf of the petitioners in O.J.C. No. 2996/ 93, it was claimed that the disputed land had been leased out by the ex- intermediary by unregistered document in favour of Jayakrushna in the year 1928 and after the death of Jayakrushna, the three branches inherited the property in equal shares and after vesting the three branches became tenants in view of the provisions contained in Section 8(1) of the Orissa Estates Abolition Act (in short, the “O.E.A.Act”). It was further pleaded that “Ekpadia” had been filed in the name of Shyama as he was the “Karta” after the death of Jayakrushna.

The petitioners in O.J.C. No. 7542/92 claimed that the property was given to Shyama by way of oral lease in the year 1943 and after vesting Shyama continued as tenant and “Ekpadia” was as such submitted in his favour and as such the property should be recorded in the name of Shyam’s branch only.

3. The Consolidation Officer rejected both the Objections. An appeal was filed by the members representing Shyama’s branch. The appeal was allowed and the matter was remanded to the Consolidation Officer to find out as to whether the lease was in favour of Jayakrushna or Shyama and whether the three branches had interest or the branch concerning Shyama alone had interest. Thereafter, the Consolidation Officer found that property had been given by way of lease in the year 1928 in favour of Jayakrushna and after death of Jayakrushna all the branches were entitled to the property. Accordingly, it was directed that the property should be recorded in the names of the three branches.

4. No further appeal was filed by the State Government against the aforesaid order. However, persons representing the branch of Shyama filed appeal claiming that the entire property should have been recorded in their names and nothing should have been recorded in the names of persons representing the branches of Krushna and Rajkishore. The appellate authority allowed the appeal and directed that the property should be recorded in the name of Shyama’s branch on the finding that “Ekpadia” had been submitted in the name of Shyama alone and as such it should be recorded in the names of members representing the branch of Shyama.

5. The petitioners representing the branch of Rajkishore filed revision before the Consolidation Commissioner against the aforesaid appellate order. The revisional authority while negativing the claim of the branches of Rajkishore and Krushna has also set aside the order of the appellate authority and directed that the property should be recorded in the name of the State Government. Being aggrieved by the aforesaid order, the persons representing the branch of Shyama have filed O.J.C. No. 7542/92 and the persons representing the branch of Rajakishore have filed O.J.C.No. 2996/93.

6. The first question that crops up for decision is as to whether the revisional authority was justified in directing that the property in question should be recorded in the name of the State Government. If it is found that the aforesaid decision of the revisional authority is justified, both the writ applications are to be dismissed. On the other hand, if it is found that the aforesaid direction for recording the land in the name of the State Government is unjustified, the question would then arise as to whether the property should be recorded in the names of the persons representing the branch of Shyama alone, as contended in O.J.C. No. 7542/92, or should be recorded in the names of the three branches as contended in O.J.C. No. 2996/93.

7. As already noticed, the Consolidation Officer after the matter was remanded, decided that the property should be recorded in the names of the three branches. The said order was challenged by the persons representing Shyama’s branch contending that the property should be recorded in the names of Shyama’s branch alone. However, no appeal or cross-objections was filed by the State Government. Therefore, the determination of the Consolidation Officer that the property had been given by way of lease became final so far as the State Government is concerned. The determination by the Consolidation Officer was against the contention of the State. The State having not challenged the said decision in appeal, there was no occasion for re-opening the said question. The only question which was raised in the appellate Court and the revisional Court was as to whether the property should be recorded in the names of the three branches, or in the name of Shyama’s branch alone. The revisional authority has therefore committed an illegality in reversing the decision of the Consolidation Officer as modified by the appellate authority even though no such appeal or revision had been filed.

Moreover, it is apparent that even after the vesting “Ekpadia” had been submitted. It was thus apparent that at the time of vesting the tenants were existing on the land and in view of the provisions contained in Section 8 (1) of the O.E.A.Act, those tenants were to continue under the State under the same terms and conditions. Therefore, in either view of the matter, the decision of the revisional authority directing for recording of the land in the name of the State Government cannot be sustained.

8. The next question is as to whether the appellate authority was correct in directing recording of the property in the names of Shyama’s branch only or whether the Consolidation Officer was correct in directing that the property should be recorded in the names of the three branches. The petitioners in O.J.C. No. 2996/93 had relied upon the “Hata Pata” issued by the ex-landlord on 16.8.1928 in favour of Jayakrushna. The appellate authority rejected the said “Hata Pata” on the ground that though agricultural lease could be created by fixation of rent and delivery of possession without any writing, but once such lease was-reduced to writing, the same was compulsorily registrable. The aforesaid conclusion of the appellate-Court appears to be based on misconception regarding the true position of law. Law is well settled that agricultural lease can be orally created by acceptance of rent and delivery of possession. The “Hata Pata” even though unregistered can be taken to be a document evidencing such oral lease. Moreover, in the present case there is no material on record to indicate that the lease was created for the first time in the year 1943 in favour of Shyama. It is, of course, true that “Ekpadia” had been submitted in the name of Shyama, but by then Jayakrushna was admittedly dead and Shyama being the eldest son and the “Karta” of the family, there is nothing unusual in submitting “Ekpadia” in the name of the “Karta”, as there is no material on record to show that by then the three branches had separated. The reasonings adopted by the Consolidation Officer on this score appear to be quite acceptable. The appellate authority without considering the various facts arid circumstances of the case, has illegally reversed the decision of the Consolidation Officer.

9. In the result, O.J.C. No. 7542/92 is allowed in part and Q.J.C. No. 2996/93 is allowed. It is directed that the property should be recorded jointly in the names of the three branches.


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