K.R. Mohapatra, J. -
(1.) This writ petition has been filed assailing the order dated 01.01.1997 (Annexure-7) passed by the Commissioner, Consolidation, Cuttack (O.P. No.27) in Consolidation Revision No.1855 of 1995 and to direct the opposite parties 25 to 27 to record the case land in the names of the petitioners and opposite party Nos. 9 to 23 jointly.
(2.) The case land pertains to Sabik Plot No.4089, Sabik Khata No.709 and Sabik Plot No.4095 in Sabik Khata No.699 corresponding to LR Plot No.4262 to an extent of Ac.0.070 decimal and Plot No. 4264 to an extent of Ac.0.630 decimal respectively of village Tarapur in the district of Kendrapara.
(3.) It is the case of the petitioners that one Kamrun Nisa Bibi, the ex-intermediary had leased out an area Ac.0.81 decimals of land in favour of the predecessors of the petitioners and opposite parties under an unregistered deed dated 27.03.1954 (Annexure-1) and handed over possession to them. The contesting opposite parties 1 to 8 are the successors of the lessee, Krushna Raul. The petitioner No.1 and the original petitioner Nos.2 and 3 are the successors of lessee, Banamali Behera. Petitioner Nos.4 and 5 are the successors of lessee, Kasinath Raul. Petitioner No.6 is the successor of lessee, Baishnab Behera. The original petitioner No.7 himself was one of the lessees. Petitioner No.8 is the successor of lessee, Bhagaban Raul. The original petitioner No.9 himself was one of the lessees.
3.1 It is the further case of the petitioners that after abolition of estate, Jamabandi was prepared in the name of lessee-Krushna Raul and others, who continued to pay rent (some of the rent receipts are at Annexures- 2, 3 and 3/1). In the year 1958, one Sk. Makbul, son of Abdul Babbar, filed Title Suit No.23 of 1958 in the Court of learned Munsif, Kendrapara for declaration of his tenancy right in respect of certain lands including the case land against lessor and other defendants. Krushna Raul (the predecessor of contesting opposite party Nos. 1 to 8) was impleaded as defendant No.3 in the said suit. Said Krushna Raul filed written statement in the said suit stating that the defendant No.3 (himself), defendant Nos.9 and 12 and other lessees had approached the landlady, namely, Kamrun Nisa Bibi, defendant No.1 therein, for cultivation of Ac.0.81 decimal of land (the case land) and she had leased out the same and put them in possession. Said Kamrun Nisa Bibi (defendant No.1 therein) had also admitted about the lease. However, the suit was ultimately dismissed.
3.2 During settlement operation, the names of the lessees including the predecessors of the petitioners and opposite party Nos.9 to 23 were recorded in Khanapuri records. However, during continuance of the settlement operation, notification under Section 3 of the Odisha Consolidation of Holding and Prevention of Fragmentation of Land Act, 1972 (for short, 'the Consolidation Act') was made and the consolidation operation started in the village. In the land register prepared under Section 6 of the Consolidation Act, name of one Khirod Chandra Mohanty (O.P. No.24) was recorded in respect of LR Plot No.4265 corresponding to Sabik Plot No.4096 to an extent of Ac.0.11 decimal. Likewise, Kulamani Raul was recorded in respect of LR Plot Nos.4262 and 4264, corresponding to Sabik Plot Nos.4089 and 4095 to an extent of Ac.0.07 decimal and Ac.0.63 decimal (the case land) respectively. Accordingly, the original petitioners filed Objection Case No.4112 of 1985 under Section 9(3) of the Consolidation Act to incorporate their names in respect of case land along with other recorded tenants. The said Objection Case was dismissed for default on 20.01.1989. However, the lessees again filed Objection Case Nos.470 and 471 of 1992 under Section 15(1) of the Consolidation Act, which was dismissed on 21.10.1992 and 30.09.1992 respectively, on the ground of maintainability of the Objection Cases in view of the bar under Section 14 of the Consolidation Act. Thus, the petitioners filed two revisions under Section 37(2) of the Consolidation Act before the Director, Consolidation in Revision Case Nos.7063 and 7064 of 1992. The Director, Consolidation on consideration of materials on record remanded the matter to Consolidation Officer to decide the Objection Cases on merit. The Consolidation Officer, however, vide his order dated 27.06.1995 (Annexures-4 and 5), rejected both the Remand Revision Cases, viz, Remand Revision Case Nos. 7063 of 1992 and 7064 of 1992, on the ground that the claim of the petitioners was not maintainable in view of the provisions under Act 1 of 1948. At the same time, the Consolidation Officer directed to retain the LR record in the name of Kulamani Raul, the grandfather of opposite party Nos.1 to 8. Petitioners being aggrieved filed Consolidation Appeal No.93 of 1995 before the Deputy Director, Consolidation, Kendrapada challenging the order passed in Remand Revision Case No.7064 of 1992. The Deputy Director, Consolidation, however, reversed the said order dated 27.06.1995 by allowing the appeal vide order dated 28.10.1995 (Annexure-6) holding that lease granted in favour of the petitioners, vide un-registered deed dated 27.03.1954 was valid and all the successors of the original lessees are entitled to be recorded jointly in respect of the case land. Assailing the said order, the opposite parties 1 to 8 filed Revision Case No.1855 of 1995 before the Commissioner, Consolidation, Cuttack. The Revisional Court, however, restored the order of the Consolidation Officer holding that the unregistered lease deed executed in the year 1954 was invalid and do not confer any right on the petitioners. At the same time, he introduced a new case holding that the lease in favour of Kulamani Raul was prior to 1942 and thus, the same remained unaffected by the provisions of Act 1 of 1948. Accordingly, vide order dated 01.01.1997 (Annexure-7), he allowed the Revision assailing which this writ petition has been filed.;