Dismissed

Kasinath Das v. Addl.Commissioner Settlement and Consolidation

Orissa HC6 Sept 2021WP(C)/2153/2017

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order under section 15(b) of the Orissa Survey & Settlement Act 1958. The court held that a serious question of title raised by the parties could not be adjudicated by the Settlement authority and thus did not entertain the petition.

What did the court decide?

The writ petition was disposed of without interference, with the direction to work out the remedy in the competent court.

Kasinath Das Vs Addl.Commissioner Settlement and… — Property and Title | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 2153 of 2017

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Kasinath Das …. Petitioner Mr. Alok Kumar Mohanty, Advocate

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-versus-

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Addl. Commissioner Settlement and …. Opp. Parties Consolidation, Balasore & Ors.

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Mr. Swayambhu Mishra, Additional Standing Counsel Mr. M.R. Baug, Advocate (For Opposite Party No.4)

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

06.09.2021

This matter is taken up through hybrid mode.

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This writ petition has been filed by the Petitioner assailing the order dated 07.02.2012 (Annexure-8) passed by learned Addl. Commissioner, Settlement and Consolidation, Balasore in Settlement Revision No.47 of 2011 under section 15(b) of the Orissa Survey & Settlement Act 1958 (for short ‘the Act’).

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Opposite Party No.4 filed R.P. No.47 of 2011 stating that the case land was recorded in the name of Mir Abdul Hakim in 1926 Settlement Record of Right. Since current Settlement Record of Right was published in the year 1983 in the name of his widow namely, Rafikan Bibi, Opposite Party No.4 filed a revision under Section 15 (b) of the Act (Settlement Revision No.47 of 2011) for correction of the Record of Right. It was his case that after death of the recorded tenant, namely, Mir Abdul Hakim, father of Opposite Party No.4, namely, Mir Abdul Majid, had purchased the case land

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Page 1 of 1

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vide Registered Sale Deed No.5472 dated 10.05.1943 from Rafikan Bibi (widow of the recorded tenant). As such, the case land should be recorded in his name. The Additional Commissioner taking into consideration the fact that the father of the Petitioner had made an oral gift in favour of the Petitioner in respect of the case land which is admissible in law in view of the decision reported in 2011 SAR (Civil) 522 came to the conclusion that the gift was valid and directed to record the case land in the name of the Opposite Party No.4.

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Mr. Mohanty, learned counsel for the Petitioner submits that Petitioner had purchased the case land from Mir Rahemat, who is none other than the son of Mir Niam, the brother of Mir Abdul Hakim. It is his case that he should have been given opportunity of hearing in the revision. As such, the order passed under Annexure-8 suffers from violation of principles of natural justice. Accordingly, he prays for setting aside the impugned order and to remit the matter back to the Addl. Commissioner, Settlement and Consolidation for fresh adjudication in accordance with law giving an opportunity of hearing.

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Mr. Mishra, learned Additional Standing Counsel for the State submits that since the case land was exclusively recorded in the name of Mir Abdul Hakim in settlement record of right in the year 1926, neither Mir Niam nor Mir Rahemat had any right, title and interest over the same. Further, the Opposite Party No.4 claims the property by virtue of the registered sale deed executed in the name of his father and oral gift made in his favour by his father. Thus, the impugned order warrants no interference. Accordingly, he pays for dismissal of the writ petition.

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Page 2 of 4

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Mr. Baug, learned counsel for Opposite Party No.4 submits that the Petitioner has no semblance of right, title and interest over the suit land. He wants to protract the litigation by filing this writ petition. Neither the Settlement Record of Right of 1926 was published in the name of Mir Abdul Hakim nor the sale deed executed by Rafikan Bibi has ever been challenged at any point of time. As such, the writ petition is not maintainable and is liable to be dismissed.

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From the rival contentions of the parties, it appears that admittedly the case land was recorded in the name of Mir Abdul Hakim in the 1926 Settlement Record of Right. After his death, his widow Rafikan Bibi executed a registered sale deed in favour of the father Petitioner on 10.05.1943 in respect of the case land.

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It is submitted by learned counsel for Opposite Party No.4 that his father had executed an oral gift deed in his favour and since then, Opposite Party No.4 is in occupation of the land having right, title and interest thereon. The Petitioner except contending that he has purchased the land in question from one Mir Rahemat, the son of the brother of the recorded tenant in 1926, no other documents has been filed to show that how the title of the suit land was passed in favour of Mir Niam, his vendor.

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A serious question of title in respect of the case land has been raised by learned counsel for the Petitioner, which cannot be adjudicated by the Settlement authorities.

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In view of the above, I am not inclined to entertain this writ petition. Accordingly, this Court, without interfering with the impugned order under Annexure-8, disposes of the writ petition

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Page 3 of 4

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with an observation that the Petitioner, if so advised, may work out his remedy in the competent court of law.

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Urgent certified copy of this order be granted on proper application.

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(K.R.Mohapatra) Judge

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Prasant

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Kasinath Das v. Addl.Commissioner Settlement and Consolidation

Case brief

What is this about?

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Kasinath Das v. Addl.Commissioner Settlement and Consolidation

Case brief

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