Biswanath Rath, J. - (1.) This writ petition has been filed assailing the orders under Annexure- 4 and 5 passed by the appellate authority as well as the revisional authority in exercise of power under Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972(hereinafter for short called as "the Act").
(2.) Short background involved in the case is that filing Objection Case No.625 of 1982, objector Umesh Rout, present opposite party no.1 against Pagal Behera, Sunamani Behera and Kulamani Behera applied for deletion of name of present petitioners, the opposite parties therein, discarding the entry of forcible possession in their favour in Column Nos.31 and 32 of the Land Register in respect of sabik plot no.2611, Ac.0.230 decimals corresponding to hal plot no.2674 of hal khata No.31 recorded as bari under the premises that they have purchased it. The present petitioners also filed Objection Case No.561 of 1982 to record the above suit land in their favour considering their long possession since 1929. Both the proceedings were heard together. The objectors in satisfying their claim pleaded that case land being a jagir land and Jagirdar being a service holder, the Jagirdar is a tenant at rest and he can be evicted by any time by ex-intermediary. When Jagirdar's right is precarious one, Pagal Behera and his relations' right becomes more precarious and they have no right in the eye of law. The Jagirdar's name has been found in 'D' Register having not been proved, there has been no proving of Jagirdar as intermediary. Hence the status of the Behera family becomes uncertain. Further, claim of Behera family for having their occupancy right over the disputed property remaining contrary to the provision of Section 236 of the Orissa Tenancy Act. Behera Family had also no right over the property and they can at best be said to be the raiyat and the right of a raiyat being not hereditable and the so called raiyat having died, their sons have no right, title, interest of possession over any portion of the case land and further title on the plea of adverse possession also not justified. It is claimed by the claimants therein that after vesting of estate, the State Government became the owner of the case land. The Jagirdar applied to the Tahasildar, Kendrapara for settlement and the Tahasildar in Vesting Misc. Case No.11022/13002 of 63-64 settled the case land in favour of Krushna Moharana and others and the rent was collected from them and then they duly sold the disputed land to Banamali Rout with appropriate consideration money. Possession was also delivered to him on 12.10.1971 and after death of Banamali Rout, his sons and grandsons were paying rent to the Tahasildar. Occupancy tenant having not contested the claim in the pr oceeding under Section 8-A (4) of the Orissa Estates Abolition Act, his right in whatever manner has been extinguished. Therefore, the fact of possession and the claim based thereon in the Consolidation Proceeding becomes immaterial. Behera Family, the opposite parties in objection Case No.625 of 1982 and the objectors in Objection Case No.561 of 1982 on the other hand claimed that Maddox report reveals that homestead land includes bari. The homestead embrace not merely the structures building but includes also adjacent buildings curtails, garden, courtyards, orchards and all that is necessary for convenient occupation of the house. The Maddox report Bhag or Dhulibhag means literally "sharing of the dust", a rent in kind is equal to half of the produce including bye products. Dhulibhaga interest noted in the Khatians means a tenant who pays kind rent and therefore, they have acquired the right of occupancy under Section 236 of the Orissa Tenancy Act and the interest of raiyat not touched by the Orissa Estates Abolition Act. It is further pleaded by the Behera family that the tenants having not been evicted by the ex-intermediaries and the exercise of the Jagirdar since recognized, the possession of the recorded tenants and their heirs in Yadast No.1103, they have a strong case and thus contended that since the order in the O.E.A. proceeding in favour of Jagirdars is invalid for the defective in the proceeding like service of notice etc, the orders having passed by the O.E.A. authority has no bearing against the Behera family.
(3.) Considering the rival contention of the two sets of objectors under the premises that the Behera Family cannot be declared as Occupancy Tenant as in the decision of the Collector in the O.E.A. Proceeding declaring the Maharanas as raiyats on the land and the settlement was made in their favour in Vesting Misc. Case No.11022/13002 of 63-64. The rent having been paid to the Government after settlement is over, the sale transaction between Maharanas and Banamali Rout since valid, right of the Banamali Rout lies with the objectors i.e. the present opposite parties. It is also held by the Consolidation Officer that defect in the O.E.A. proceeding cannot be gone into by the authorities under the OCH & PFL Act. It is under the premises, the Consolidation Officer held that the opposite parties claim for possession on the basis of payment of rent cannot override the claim of the opposite parties whose possession is also disclosed by virtue of the entry in the yadast and consequently though declared the title in favour of the petitioners i.e. the present opposite parties but declared the possession in favour of the present petitioners and issued consequential direction for necessary correction in the record-of-right.;