Remanded

Mahadev Biswal v. Natabar Biswal

Orissa HC2 Feb 2017OJC/4654/2000

Case brief

AI extract

What is this about?

The Orissa High Court dismissed a revision rejecting a limited appeal. It held the appeal was maintainable for one of nine cases combined and set aside the revisional court's attempt to decide merits prematurely, remitting the specific issue for fresh adjudication.

What did the court decide?

Petition allowed; findings setting aside single appeal maintainability set aside; matter remitted to appellate authority for fresh adjudication.

Mahadev Biswal Vs Natabar Biswal — Property and Title | Orissa HC (2017)

¶1

ORISSA HIGH COURT: CUTTACK

¶2

O.J.C. No.4654 of 2000

¶3

In the matter of an application under Articles 226 & 227 of the Constitution of India.

¶4

---------Mahadev Biswal & others … … … Petitioners -versus- Natabar Biswal (dead) Pratap Kumar Biswal & others … … … Opp. Parties For Petitioners : M/s. D.Mohapatra,S.K.Samal & Miss.M.Rout. For Opp.Parties : M/s. S.R.Mohapatra, S.K.Ray, S.K.Rout, K.K.Jena. S.P.Swain & S.R.Mohanty. (O.P.Nos.1 to 5 & O.P.1(a) to (1g). Sri B.R.Behera, Additional Standing Counsel Date of Hearing: 24.01.2017 Date of Judgment: 02.02.2017

¶5

P R E S E N T:

¶6

THE HONOURABLE MR. JUSTICE BISWANATH RATH

¶7

Biswanath Rath,J. This writ petition is filed for declaration as to why the order

¶8

passed by the Consolidation Officer so far it relates to Objection Case No.1086 of 1990 involving Annexcure-1, the order passed by the Deputy Director, Consolidation in Appeal Case No.262 of 2992 under Annexure-2 and the order passed by the Consolidation Commissioner

¶9

in Revision Case No.14 of 1993 under Annexure-3 shall not be quashed and thereby allowing the claim of the petitioners regarding

¶10

¶11

their entitlement to 1/3rd share out of the entire joint family properties and not 1/6th as wrongly held by the courts below.

¶12

2. It be stated here that the Objection Case No.1086 of 1990 was heard along with Objection Case No.1178 of 1990, 862 of 1990, 993 of 1990, 1031 of 1990, 1176 of 1990, 1022 of 1990, 1012 of 1990 and 1134 of 1990 in a proceeding under Section 9(3) of the Orissa Consolidation of Holding & Prevention of Fragmentation of Land Act, 1972 (hereinafter for short called as “the Act”) and disposed of by a common order under Annexure-1. As the present petitioners interest involved only in Objection Case No.1086 of 1990, the petitioners preferred Appeal Case No.262 of 1992 confining their claim involving the decision in Objection Case No.1086 of 1990 and having lost the appeal, preferred Revision Case No.14 of 1993.

¶13

3. Filing Objection Case No.1086 of 1990, the applicants therein made the following prayer:

¶14

“1. deleting names of ops Padmalav, Subal, A-gani and Subani from khata no.196 on the ground that they are not the co-sharers and they are not the physical possession over the suit lands.

¶15

For allocation of share of Sanatan Biswal, sons 5 annas 4 pahi, Mohadeba Biswal and 5 annas 4 pahi, and rest 5 annas 4 pahi goes to successors of late Kulamani Biswal in 3 branches in Prananath having are ana 9 1/3 pa-hishare. Punananda having one anna 9 1/3 pahi share and Natabar Biswal and others of one anna 9 1/3 pahi. Accordingly, they are in possession over the lands

¶16

¶17

in 196 Khata and partition be effected and separate records be prepared.

¶18

L.R. Plot No.1395 is in possession of Mahadev Biswal where as there has been reflection of possession note of Udi Murudi against this plot by way of illegal purchase. As such, this plot be recorded in the name of Mahadev Biswal.

¶19

Area of L.R. Plots 1395 and 1396 be enhanced as per possession after field enquiry.

¶20

Vendees Purchased lands from the khata be separately recorded and as per Kachhafarda attached and separate records be prepared by effecting partition.”

¶21

4. By filing objection Case No.1086 of 1990, the objectors therein disclosed that the lands involved are ancestral properties. Dama, Shyam, Rama and Bulei four sons of Gopal Biswal inherited the same and each of them had 1/4th share in the family properties. However, admittedly Rama died issueless and the said branch was completely extinguished leaving behind only 3 branches, namely, Dama, Shyam and Bulei. Thus, each of the branches inherited 1/3rd share out of the total ancestral properties. Mahadev Biswal being the descendant of the branch of Shyam inherited 1/3rd share out of the total ancestral properties. It is further claimed that Mahadev being descendent of the branch of Shyam inherited 1/3rd share alone. The present petitioners, who were the descendants of the branch of Bulei inherited and are otherwise entitled to 1/3rd share of Bulei. Similarly,

¶22

¶23

the descendants of Dama’s share i.e. Natabar Biswal and others, opposite parties have inherited 1/3rd share of Dama. It is alleged that the Consolidation Officer by clubbing the matter involving different issues and absolutely not hearing all these cases committed error apparent on the face of record in allotting 2/3rd share of Dama branch, allotting 1/6th share to the petitioners and 1/6th share to Mahadev, who represents Shyam’s share. In filing appeal at their instance, the petitioners alleged that the appellate authority instead of the petitioners clear case that their interest only involved in the Objection Case No.1086 of 1990 and they have not been aggrieved by the orders of the Consolidation Officer, so far it relates to the other objection cases are concerned, dismissed the appeal on an erroneous finding that since the judgment in objection cases involved 9 cases, the petitioners should have preferred 9 appeals and the appeal has been dismissed on this mere technical ground. Revision being preferred vide Consolidation Revision Case No.14 of 1993, even though had one such revision is dismissed upholding the view of the appellate authority observing that the petitioners should have preferred 9 appeals but at the same time entered into the merit of the case and finally without proper appreciation of the matter involved in this particular objection case again confused itself by entering into the other issues involved therein in connection with the other objection cases and has arrived at a wrong and erroneous finding.

¶24

5. Assailing the revisional order, Sri Dayananda Mohapatra, learned counsel appearing for the petitioners submitted that since the petitioners had a statutory remedy of appeal, once the revisional

¶25

¶26

authority intended to enter into the merit should not have taken away the scope of appeal and decided the matter on the merit in the revision. Further, looking to the decision on the merit of the revision, it is also alleged that the order of the revisional authority is based on surmises and conjunctures and without appropriate understanding the issue involved therein. Referring to a decision in the case of Biswanath Panda v. Sarat Chandra Panda & others , 2009 (II) CLR - 746, Sri Mohapatra, learned counsel submitted that for the decision of this Court therein, both the appellate authority as well as the revisional authority erred in law and thus contended that the appellate order as well as the revisional order are also otherwise bad for being contrary to law.

¶27

6. Sri S.K.Ray, learned counsel appearing for the private opposite parties though admitted that the present case confines to the Objection Case No.1086 of 1990 alone but attacking the contention raised by Sri Mohapatra submitted that for the detailed discussion and the observations, the final order passed by the original authority does not suffer. Further, coming to the question of maintainability of appeal and revision, as has been held by the appellate authority and the revisional authority, Sri Roy submitted that applying the provisions contained under Order 41 of the Code of Civil Procedure and further since the provisions of the Code of Civil Procedure are very much applicable to the present litigation, both the courts have not committed any wrong in observing that the petitioners should have preferred 9 appeals.

¶28

¶29

At the same time, Sri B.R. Behera, learned Additional Standing Counsel supporting the impugned orders as well as the objections raised by Sri Roy, learned counsel appearing for the private opposite parties attempted to justify the impugned orders.

¶30

7. Considering the rival contentions of the parties and after going through the discussions made in the original case as well as appeal and revision, this Court finds the case requires decision on two aspects viz (i) if the finding of the appellate authority and the revisional authority so far it relates to maintainability of one appeal for the involvement of 9 Objection Cases in the impugned order vide Annexure-1 is justified or not? (ii) For the facts and circumstances involved in the case, whether the revisional authority for its entering into merit of the case is justified in dismissing the revision curtailing the right of appeal accrued in favour of the petitioners?

¶31

8. Coming to decide on the Issue No.1, this Court finds the case of the petitioners as well as the private opposite parties admittedly involved in Objection Case No.1086 of 1990. Petitioners have specific pleading in the appeal as well as in the revision that the petitioners have not been aggrieved by the orders of the original authority involved the other 8 Objection Cases. There is also no denial to this aspect by the private opposite parties. Now, looking to the decisions available on the field, this Court finds Sri Dayananda Mohapatra referred to a decision rendered in the case of Biswanath Panda v.Sarat Chandra Panda & others (supra). This is a case involved one Second Appeal arising out of one suit resulting challenge of the decree passed in the suit by both the plaintiff and

¶32

¶33

defendant in two Title Appeals bearing Title Appeal No.87 of 1979 and Title Appeal No.100 of 1979. Both the Title Appeal were heard together and decided analogously resulting one Second Appeal. A Single Bench of this Court referring to a decisions of Hon’ble Apex Court in the case of Narahari & Ors. v. Shankar & Ors . , AIR 1953 SC 419, in the case of Braja Mohan Das v. Radha Mohan Das , AIR 1961 Orissa, 41, in the case of Golak Behari Biswal & Anr. v. Karunakar Rout , AIR 1987, Orissa 236 , in the case of Ram Chandra Das v. Girija Nandini Devi , AIR 1966 SC 323 and in the case of Sahu Madho Das v. Mukunda Ram , AIR 1955 SC 481 held that one Second Appeal is maintainable against a common judgment involving 2 Title Appeals on the premises that Title Appeals arose out of one suit, which is not the situation here.

¶34

In the case of Abdul Rahim & others v. State of Orissa & others , 41 (1975) CLT 714, a Division Bench of this Court held that since the claims before the Estate Abolition authority were separate altogether, separate appeals for separate claimants was desirable and joint appeal as against such common orders was not maintainable. In another Division Bench in the case of Bula Kandia and others v. Radhakanta Deb and others , 1990 (I) OLR 378, this Court, dealing with a similar situation but involving proceeding under the Orissa Land Reforms Act maintained the writ petition only in respect of two appeals therein.

¶35

For the facts involved in the case, and for the admitted position in the case at hand that the petitioners had a specific case that they have not been aggrieved by the orders passed involving

¶36

¶37

other objection cases and their appeal was confined to the order concerning Objection Case No.1086 of 1990, this Court though does not find any quarrel with the proposition already held by this court in the judgment supra, but for the admitted position, as indicated hereinabove, involving the case at hand held one appeal at the instance of the petitioners was very much maintainable. As a consequence, this Court sets aside the finding of both the appellate authority as well as Revisional authority in so far it relates to issue no.1 and answer the Issue no.1 accordingly.

¶38

9. Now coming back to the Issue No.2, for the observation of this Court hereinabove that the appellate authority as well as the Revisional authority made wrong in finding the single appeal not maintainable and further since this Court finds that the right to appeal being a statutory right, the Revisional authority instead of proceeding to merit of the case should have remitted back the matter to the appellate authority for its decision on merit.

¶39

10. Be that as it may, considering the rival contention of the parties and looking to the limited claim of the petitioner involving the Objection Case No.1086 of 1990, this Court observes the Revisional authority even if entered into the merit of the case has failed in considering independent claims involved in particular objection case. For this, this Court also finds the findings of the revisional authority on merit of the case is also not sustainable in the eye of law and the case needs fresh adjudication by the appellate authority.

¶40

¶41

11. Under the circumstances, while interfering in the orders

¶42

passed by the appellate authority as well as revisional authority, this Court sets aside the both and remits the matter back to the appellate authority to decide the merit involving the order concerning Objection Case No.1086 of 1990 and a fresh order be passed by the appellate authority giving opportunity of hearing to the petitioners and the present private opposite parties and further without being influenced by the observation already made by the Revisional authority under Annexue-3 already set aside by this judgment.

¶43

12. In the result, the writ petition succeeds but however to the

¶44

extent indicated hereinabove . There is no order as to cost.

¶45

Biswanath Rath,J.

¶46

Orissa High Court, Cuttack The 2^nd day of February,.2017/sks

Mahadev Biswal v. Natabar Biswal

Case brief

What is this about?

What did the court decide?

Mahadev Biswal v. Natabar Biswal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Laxmidhar Vs Commissioner

Pagal Behera Vs Umesh Rout

Subash Vs Joint Commissioner

Ramesh Ch.Sahoo Vs State of Odisha

Dambarudhar Budek Vs State of Odisha

Bhikari Charan Panda Vs State of Odisha