RABI NARAYAN DALAI Vs. TAHASILDAR AND ORS.

JUDGEMENT

(1.) This writ petition has been filed for quashing the order dated 08.03.1999 passed in R.P. Misc. Case No.487/1995 (Annexure-3) by the Tahasildar, Sukinda, Jajpur Road.

(2.) Petitioner's case in a nut-shell is that he had purchased the property appertaining to Hal Khata No.515, Hal Plot Nos.3222, 3220, 3221 measuring an area of Ac 0.55 decimals in Mouza Khandalapur, P.S. Korei, P.S.No.197 of Tahasil Sukinda from one Kalandi Swain and Baishnab Swain vide Registered Sale Deed No.1635, dated 01.03.1971. The petitioner got it mutated in his name and tenant ledger was opened in his name vide Jamanbandi No.27 for Khata No.9/1 and 1313. The petitioner was paying the rents regularly. In the settlement operation, the property was recorded in the name of the petitioner. Opposite party No.3-Biswanath Panda filed an objection under Section 12 of the Orissa Survey and Settlement Act, 1958 (for short, "Act, 1958") claiming that he had purchased the said plot from the younger brother Baishanab Swain. The objection of opposite party No.3 was rejected by the A.S.O. One Rama Chandra Mahapatra being aggrieved by the order passed by ASO on 31.01.1992 vide Settlement Appeal No.219 of 1991 filed a revision under Section 32 of the Act, 1958 before the Commissioner, Land Records and Settlement, Orissa, Cuttack (for short, "Commissioner"). The learned Commissioner vide his order dated 04.05.1992 in R.P. Case No.279 of 1992 did not incline to interfere with the order of the Lower Court and accordingly dismissed the revision. Final record of rights was published in the name of the petitioner. Opposite party No. 3 filed R.P. Case No.3810/1994 challenging the final record of rights before the Commissioner and the learned Commissioner vide order dated 21.8.1995 allowed the claim of opp. party no.3 and remanded the matter to the Tahasildar, Sukinda, Jajpur Road directing the Tahasildar, Jajpur Road to verify "the flow of title from the Sabak owner to the petitioner's vendor in RSD No. 5753 dated 15.10.1977 and decide the case as per law". After the order of remand, Tahasildar, Sukinda by his order dated 08.03.1999 passed in R.P. Misc. Case No.487/95 directed for recording of the disputed plot in favour of O.P. No.3 Hence, the present writ petition.

(3.) Mr. N. Panda, learned counsel for the petitioner submits that all the Courts like ASO, SO and Commissioner have taken a concurrent view and confirmed the title of the petitioner which fact should have been taken into consideration by the Tahasildar. The sale deed executed in favour of the petitioner by Kalandi Swain and guardian of younger brother Baishnaba Swain vide RSD No.6595 dated 12.07.1974 is a genuine document. The petitioner got it mutated in his name and the Jamanbandi stands recorded in the name of the petitioner. Since earlier sale deed was not declared null and void by the competent Court, another sale deed after two years in respect of the selfsame property is a void document. The Revenue Court has no jurisdiction to declare the sale deed null and void or make a partition on wrong presumption of law. Baishnaba Swain before executing the sale deed should have established his right, title and interest in the competent Court. The order passed by the Commissioner in R.P. Case No.3810/1994 as well as the order of the Tahasildar passed in R.P. Misc. Case No.487/95 is not sustainable in law. Mr. Panda further submits that no appeal is provided against the order of the Tahasildar, Sukinda, Jajpur Road as the same was passed pursuant to the order of remand passed by the Commissioner; therefore, the present writ petition is maintainable.