Skip to content


Bhagirathi Kar and anr. Vs. Jagannath Roul and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberO.J.C. Nos. 1758, 1759 and 1760 of 1978
Judge
Reported inAIR1982Ori241; 53(1982)CLT441
ActsOrissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 - Sections 36
AppellantBhagirathi Kar and anr.
RespondentJagannath Roul and ors.
Appellant AdvocateS.K. Dey, ;Y. Mohanty and ;B.B. Mohapatra, Advs.
Respondent AdvocateAddl. Standing Counsel, ;Sanatan Jena and ;S.P. Mohanty, Advs.
DispositionApplications allowed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........title to the property under a registered sale deed and maintained that following acquisition of title, possession was also obtained. in 1970 there was final publication of the record-of-rights wherein each of the petitioners was shown to be the owner in possession of the property acquired by him under the registered deed of sale. opposite party no. 1 did not challenge the record so published. there was a proceeding under section 145, cr. p. c. between the parties which had terminated in favour of opposite party no. 1, but that was set aside by this court in criminal revision no, 87 of 1970, while matters stood thus, consolidation proceedings were initiated pursuant to a notification u/s. 3 of orissa act 21 of 1972. before the consolidation authorities opposite party no. 1 maintained.....
Judgment:

R.N. Misra, C.J.

1. Challenge in these three writ applications under Article 226 of the Constitution is to the order passed by the Consolidation Commissioner in 3 separate revisions under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (21 of 1972). As common questions arise and one set of arguments had been advanced by common counsel appearing for the parties, we propose to dispose of all these three writ applications by a common judgment.

2. Opposite Party No. 1, Jagannath Roul, was the original owner of each item of property forming the subject-matter of the dispute in the writ applications. The petitioner in each of the writ applications acquired title to the property under a registered sale deed and maintained that following acquisition of title, possession was also obtained. In 1970 there was final publication of the Record-of-Rights wherein each of the petitioners was shown to be the owner in possession of the property acquired by him under the registered deed of sale. Opposite Party No. 1 did not challenge the record so published. There was a proceeding under Section 145, Cr. P. C. between the parties which had terminated in favour of opposite party No. 1, but that was set aside by this Court in Criminal Revision No, 87 of 1970, While matters stood thus, consolidation proceedings were initiated pursuant to a notification u/s. 3 of Orissa Act 21 of 1972. Before the Consolidation Authorities opposite party No. 1 maintained that the sales were Benami and, therefore, did not convey any title to the vendees, This stand was rejected by the Consolidation Officer and such rejection was upheld in appeal, Opposite Party No, 1, had, therefore, moved the Consolidation Commissioner in revision. By a separata order in each of the revisions but on the same line, the Commissioner did not direct recording of the property in the name of opposite party No. 1; so far as the claim of Benami was concerned, he directed parties to agitate the same in the common law court, yet he remanded the matter to the Consolidation Officer for giving a finding regarding possession and also required that such possession should be noted in the Land Register, These three writ applications assail the aforesaid direction of the Consolidation Commissioner in the three cases.

3. According to Mr. Dey for the petitioner in each of the cases, once title is found to be not in the opposite party and the opposite party does not come forward to claim title on the basis of adverse possession, the fact of possession is immaterial for the consolidation proceeding and the direction to enquire into possession and to make an entry in the Land Register with reference to such possession was irrelevant. Mr. Jena for the opposite parties is not in a position to show to us from the record that there, was any claim of acquisition of title by adverse possession. In the premises, the direction for investigation into the question of possession is wholly irrelevant and would be really a fulile exercise. We see no justification for the direction by the Consolidation Commissioner,

4. We would accordingly quash the order of the Commissioner by which he has required the Consolidation Officer to enquire into the question of possession and to note the same accordingly in theLand Register. That direction having been set aside, on the basis of the other conclusions it must follow that the appellate order of the Consolidation Authority has to be sustained and if there is any real grievance, the same must be ventilated in the Civil Court by a regular suit as indicated in the order of the Commissioner.

5. Each of these writ applications is allowed and the direction for fresh investigation on the question of possession and the further direction that an entry be made in the Land Register are set aside.

Parties are directed to bear their own costs.

Behera, J.

I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //