Dismissed

Deba@Dev K.Nayak v. Rabi Das

Orissa HC16 Dec 2020WP(C)/18098/2010

Case brief

AI extract

What is this about?

This writ petition assailed mutation appeal orders dismissing appeal and confirming Tahasildar direction to record case land in name of opposite party. Bench held survey authorities not restrained by interim order pending second appeal and disposed petition with direction for ROR to abide pending appeal decision.

What did the court decide?

Petition dismissed; orders in Mutation Case/Appeal and consequential ROR made to abide by decision in pending RSA No.38 of 2009.

Deba@Dev K.Nayak Vs Rabi Das — Partition | Orissa HC (2020)

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W.P.(C) No. 18098 of 2010 1

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16.12.2020 Due to outbreak of COVID-19, this matter is taken up through Videoconferencing.

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Heard Mr.Dwarika Prasad Mohanty, learned counsel for the petitioners.

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This writ petition has been filed assailing order dated 16^th June, 2010 (Annexure-2) passed by the Sub-Divisional Officer, Angul in Mutation Appeal No.13 of 2019, whereby he dismissed the appeal filed by the present petitioners, and confirmed the order dated 18.04.2009 (Annexure-1) passed by the Tahasildar, Angul in Mutation Case No.471 of 2009 directing to record the case land, i.e., Plot No.1/759/1 (Ac.0.00.70), under Hal Khata No.144, kisam Ghara in mouza Turang jungle under Angul tahasil (for short, ‘the case land’) in the name of opposite party No.1. Pursuant to the judgment and decree passed in TS No.60 of 2000 in respect of Khata Nos.82 and 144 of village Turanga jungle, the case land was allotted in favour of opposite party No.1. The said judgment and decree passed in TS No.60 of 2000 was subsequently confirmed in RFA No.1 of 2005. Assailing the same the petitioners filed RSA No.38 of 2009, which is pending before this Court. The petition for condonation of delay (Misc. Case No.65 of 2009) in filing the said Second Appeal, is yet to be considered by this Court.

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3.1 However, this Court, vide order dated 30.10.2009 passed in Misc. Case No.290 of 2009, has passed the following order.

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“Heard.

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In this application, the appellant has sought for an order of injunction against the respondents restraining them from alienating any portion of the disputed property.

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Considering such prayer, all the parties to this appeal are restrained from alienating/ transferring any portion of the dispute property and from creating encumbrance over the same in any manner, till disposal of the appeal.”

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Thus, on the basis of the judgment and decree passed in TS No.60 of 2000, the Tahasildar, Angul, therefore, directed for preparation of ROR of the case land in favour of opposite party No.1. Accordingly, the ROR has been prepared in the name of the opposite party No.1. 5. Mr.Mohanty, learned counsel for the petitioners submits that neither the Tahasildar, Angul, nor the Sub-Divisional Officer, Angul could have proceeded with the matter to correct the ROR in the name of opposite party No.1, in view of pendency of RSA No.38 of 2009 before this Court. It is his contention that since ROR has already been corrected in the name of opposite party No.1 pursuant to the order passed in Mutation Case No.471 of 2009, the said ROR should be kept in

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abeyance till disposal of the 2^nd appeal in RSA No.38 of 2009 pending before this Court. In the alternative, he contended that the ROR prepared in the name of opposite party No.1 should abide the decision in RSA No.38 of 2009. In that view of the matter, Mr.Mohanty, learned counsel prays for disposal of the present writ petition accordingly.

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Mr.Mishra, learned AGA, on the other hand, submits that the judgment and decree passed in TS No.60 of 2000, which has been confirmed in RFA No.1 of 2005, has not been stayed by this Court. Further, there is no restraint order passed by this Court to proceed with the Mutation case. Accordingly, the Tahasildar, Angul has committed no error in recording the case land in favour of opposite party No.1.

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Taking into consideration the submissions made by learned counsel for the parties and on perusal of case record, it appears that the petition for condonation of delay has not yet been considered in RSA No.38 of 2009. The interim order passed by this Court in its order dated 30.10.2009 (supra) passed in Misc. Case No.290 of 2009 can in no way restrain the authorities under the Odisha Survey and Settlement Act to act upon the judgment and decree passed by the competent court of law. In that view of the matter, I am not inclined to interfere with the impugned orders under Annexures-1 and 2. It is, however, made clear that the

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order passed under Annexures-1 and 2 in Mutation Case No.471 of 2009 and Mutation Appeal No.13 of 2009 and the consequential ROR prepared in favour of opposite party No.1 pursuant thereto shall abide by the decision to be passed in RSA No.38 of 2009. 8. With the aforesaid observation, the writ petition stands disposed of.

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8.1 Authenticated copy of this order downloaded from the website of this Court shall be treated at par with certified copy in the manner prescribed in this Court’s Notice No.4587 dated 25.03.2020.

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………………………….

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K.R. Mohapatra, J.

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Deba@Dev K.Nayak v. Rabi Das

Case brief

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Deba@Dev K.Nayak v. Rabi Das

Case brief

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