DHARANIDHAR LENKA (DEAD) ABANTI LENKA AND OTHERS Vs. GAJENDRANATH LENKA (DEAD) ANNAPURNA LENKA & OTHERS

JUDGEMENT

(1.) This writ petition is filed assailing the orders passed by the competent authorities in exercise of power under the O.C.H. & P.F.L. Act, 1972 vide Annexures-10 and 11.

(2.) Short background involved in the case is that the disputed property under Plot No. 697 in the 1930 Settlement record-of-right measuring Ac.0.28 decimals is the ancestral property. In 1986 settlement record-of right Ac. 0.17 decimals of land remained in Khata No. 35, Plot No.682 and balance Ac. 0. 11 decimals of land remained in Plot No. 682/985 under Khata No. 35 corresponding to Consolidation L.R. Plot No. 682 measuring Ac. 0.140 decimals. The petitioner and opposite party no. 1, who are two brothers are sons of Shyam Sundar Lenka, who had also other two sons, namely, Krupasindhu and Jagabandhu. Petitioner all through claimed that after the death of Shyam Sundar Lenka, an unregistered deed of acknowledgement giving a previous partition was executed between four brothers and in the said partition, western Ac. 0.14 decimals fell to the share of the petitioner and the eastern Ac. 0.14 decimals fell to the share of the opposite party no. 1. It is contended that after this development, opposite party no. 1 sold several properties and the petitioner established the same by annexing some of the registered sale deed as Annexures-2, 3 and 4. 1986 record-of-right was prepared separately in accordance with the partition, though some record-of-right stood recorded jointly but with separate note of possession in accordance with the above partition. It is contended that though the petitioner was in possession of Ac. 0.140 decimals of land but in respect of Khata No. 35, note of possession was recorded indicating opposite party no.1 in possession of Plot No. 682, measuring Ac. 0.17 decimals whereas petitioner shown to be in possession of Plot No. 682/985 measuring Ac.0.11 decimals. But as a matter of fact the petitioner was in possession of Plot No. 682 whereas opposite party no.1 was in possession of Plot No. 682/985 and area of both the plots remained same as clearly appearing at Annexure-6. Petitioner claimed that he filed Objection Case No.292 of 1991 for correction of Hal record of right during consolidation operation. Inquiry was conducted by Amin evidencing possession of the petitioner in respect of Plot No.682 as a consequence of which claim of the petitioner was allowed by the Consolidation Officer. Opposite party no.1 preferred appeal. Appellate authority modified the order recording the land in respect of the petitioner vide L.R. Plot No.682 /985 in respect of Ac.0.125 decimals. Being aggrieved by this reduced recording of land in favour of the respective parties, petitioner preferred Consolidation Revision No.738 of 1994. Learned Commissioner, Consolidation dismissed the revision after holding that the oral partition cannot be accepted in absence of the registration of the same.

(3.) In assailing the revisional order, Sri D.P. Mohanty, learned counsel contended that the observation of the revisional authority that the unregistered partition deed of 1972 cannot be accepted as against law. The revisional authority has failed in appreciating the respective possession involving acceptance of unregistered partition deed and thereby arrived at the wrong and erroneous judgment. Relying on a decision in the case of Kale and others v. Deputy Director of Consolidation and others, reported in A.I.R. 1976 SC 807, Sri D.P. Mohanty, learned counsel appearing for the petitioner contended that the petitioner's stand gets the support of this judgment and under the circumstances, the revisional order should be set aside.