Decided on November 07,1973

Gopal Kunja Dev And Ors. Appellant
State of Orissa and Ors. Respondents


B.K. Patra, J. - (1.) THE dispute in this petition relates to the lands covered by Khata No. 1022 and Khata No. 1024 of mouza Hantak and described more fully in Schedules A and B appended to the petition. The Petitioner No. 1, deity, was the intermediary in respect of the Touzi appertaining to the disputed properties. Khata No. 1022 consists of 3 plots, plot Nos. 455, 459 and 1194 with a total area of 4.20 acres. Sidhi Jena and Budhi Jena were admittedly the recorded Dhulibhag tenants in respect of these properties. Sidhi 's widow is Sulav and his son is Gurubari. After the death of Sidhi, his widow Sulav, and his brother Budhi executed a registered said deed in favour of the intermediary in respect of the properties covered by Khata No. 1022 (Annexure -13). So far as the B schedule properties are concerned, Maga Sahu and Akheda Sahu were the recorded Sanja tenants under the intermediary, the deity. This Khata consists of two plots, plot Nos. 501 and 618 with a total area of 2.24 acres. To recover arrears of rent the deity brought a rent suit against Maga Sahu and Akheda Sahu, and in execution of the decree obtained therein the properties were brought to sale and purchased by the deity. The sale certificate (Annexure -14) was also obtained. It is the case of the deity that the lands covered by Khata No. 1024 were taken possession of by it amicably from the Sanja tenants.
(2.) On 13 -4 -1961 the intermediary interest of Petitioner No. 1 vested in the State. There is no dispute that thereafter within the time prescribed an application under Section 7 read with Section 8 -A of the Orissa Estates Abolition Act was filed on behalf of the deity for settlement of the lands covered by Khata Nos. 1022 and 1024 on the averment that the deity was in possession of those properties on the date of vesting. There was due publication of the notice, and objections were filed one by Gurubari (opp. party No. 4) claiming 1.49 acres of land out of Khata No. 1022 and the other by Maga Sahu and Akheda Sahu (opposite party Nos. 5 and 6) claiming ' all the lands covered by Khata No. 1024. The case of Gurubari is that long before Sulav and Budhi executed the sale deed dated 20 -8 -1951 in favour of the deity there was a partition in the family and that in the said partition 1.49 acres of land morefully described in Annexure -2, the partition deed, had been allotted to his share, and that ever since then he has been in possession of these 1.49 acres of land. Opposite party Nos. 5 and 6 do not question the correctness of the averment made by the Petitioner No. 1 regarding the purchase of Khata No. 1024 in Court auction by the Petitioner No. 1, but they contend that the deity had never taken possession of these properties either through Court or otherwise and that the objectors continued to remain in possession thereof, and were in possession by the time the vesting took place.
(3.) The Tahasildar dismissed the petition filed by the deity entirely relying on a report of enquiry submitted by the Kanungo who stated in his report that on the date he made the enquiry, which admittedly was a long time after the vesting, the recorded Dhulibhag tenants in respect of the lands covered by Khata No. 1022 and the Sanja tenants in respect of the lands covered by Khata No. 1024 were in possession. Apart from this enquiry report, neither party appears to have let in any other evidence. Relying on the enquiry report, the Tahasildar dismissed the deity 's application. This order of the Tahasildar was upheld in appeal by the Additional District Magistrate.;

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