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Orissa High Court
G.K.MISRA,B.K.PATRA
Pranakrushna Pradhan - Appellant
Versus
Harekrishna Pradhan - Respondent
O.J.C. No.353 of 1968
Decided On : 07/22/1971
ORISSA ESTATES ABOLITION ACT, 1951 - SECTION 7(1)(A) - SECTION 8-A(1) - CO-SHARERS OF INTERMEDIARY - ENTITLED TO SETTLEMENT OF LANDS UNDER SECTIONS 6 AND 7 - ERROR APPARENT ON THE FACE OF THE RECORD - CAN BE CORRECTED BY THE COURT IN EXERCISE OF JURISDICTION IN A WRIT OF CERTIORARI.
Fact of the Case:
The petitioners and opposite parties 1 to 3 were co-sharers in the disputed agricultural lands. Dinabandhu, father of opposite parties 1 to 3, died in 1958. Thereafter Harekrishna (O.P. No.1) became the karta of the family. After the estate vested, O.P. No.1 filed an application under Section 8-A of the Orissa Estates Abolition Act, 1951 for settlement of the disputed lands with O.Ps.1 to 3 under Sections 6 and 7 of the Act. The petitioners filed an objection under Section 8-A(4) of the Act. The Addl. Tahasildar came to the conclusion that the petitioners were cosharers of O.Ps.1 to 3 and passed an order that the disputed lands would be settled both with the petitioners and O.Ps.1 to 3 under Sections 6 and 7. O.Ps.1 to 3 filed an appeal before the Addl. District Magistrate, who remanded the case for further enquiry. After remand, the Addl. Tahasildar came to the same conclusion that the petitioners were cosharers of O.Ps.1 to 3 and the disputed lands would be settled with both the parties. That order was reversed in appeal at the instance of O.Ps.1 to 3 by the Addl. District Magistrate.
Finding of the Court:
The appellate authority misdirected himself in addressing himself to the question whether the petitioners were intermediaries or not. That was wholly irrelevant. If O.Ps.1 to 3 were intermediaries the petitioners would derive the benefit as their co-sharers. The only question which both the courts were called upon to decide was whether the petitioners were co-sharers of O.Ps.1 to 3. On the findings recorded even by the appellate authority there cannot be any escape from the conclusion that the petitioners were co-sharers of O.Ps.1 to 3 though he did not expressly use that expression.
Issues: Whether the petitioners were co-sharers of opposite parties 1 to 3.
Ratio Decidendi: On the application made by opposite parties 1 to 3 for settlement of the disputed lands under Sections 6 and 7 the benefit would accrue to the petitioners as their co-sharers. The appellate authority misdirected himself in addressing himself to the question whether the petitioners were intermediaries or not. That was wholly irrelevant. If O.Ps.1 to 3 were intermediaries the petitioners would derive the benefit as their co-sharers. The only question which both the courts were called upon to decide was whether the petitioners were co-sharers of O.Ps.1 to 3. On the findings recorded even by the appellate authority there cannot be any escape from the conclusion that the petitioners were co-sharers of O.Ps.1 to 3 though he did not expressly use that expression.
Final Decision: The order of the appellate authority is quashed. A writ of certiorari be accordingly issued. The writ application is allowed but in the circumstances without costs.
Judgement
G. K. MISRA, C.J. :- The following genealogy would show the relationship of the petitioners and opposite parties 1 to 3.
The correctness: of the genealogy is not disputed before us. The petitioner's case is that the family was possessed of agricultural lands and they and opposite parties 1 to 3 as cosharers were in joint possession of the disputed lands. Dinabandhu, father of opposite parties 1 to 3, died in 1958. Thereafter Harekrishna (O.P. No.1) became the karta of the family. After the estate vested, O.P. No.1 filed an application under Section 8-A of the Orissa Estates Abolition Act, 1951 (hereinafter to be referred to as the Act) for settlement of the disputed lands with O.Ps.1 to 3 under Sections 6 and 7 of the Act. There was no reference to the petitioners in that application as being cosharers. Admittedly, O.Ps.1 to 3 were intermediaries and they have been so recorded. The petitioners have not been recorded as intermediaries. After getting notice of such an application the petitioners filed objection under Section 8-A(4) of the Act. The matter was enquired into. The Addl. Tahasildar, Salepur, came to the conclusion that the petitioners were cosharers of O.Ps.1 to 3. Accordingly, he passed an order that the disputed lands would be settled both with the petitioners and O.Ps.1 to 3 under Sections 6 and 7 (see Annexure-1). Against this order O.Ps.1 to 3 filed an appeal before the Addl. District Magistrate, Cuttack, who by his order (Annexure-2) dated 13-9-1966 remanded the case for further enquiry. After remand, evidence was taken and the Addl. Tahasildar came to the same conclusion that the petitioners were cosharers of O.Ps.1 to 3 and the disputed lands would be settled with both the parties. That order was reversed in appeal at the instance of O.Ps.1 to 3 by the Addl. District Magistrate, Cuttack, by his order (Annexure-4) dated 22-4-1968. It is against this order that the present writ application has been filed under Arts.226 and 227 of the Constitution.
2. Mr. Rath for the petitioners contends that on the concurrent findings of both the Addl. Tahasildar and the Addl. District Magistrate that the petitioners were cosharers of O.Ps.1 to 3 who were admittedly intermediaries and had filed the application under Sec.8-A for settlement of the lands under Sections 6 and 7 of the Act within time, the Addl. District Magistrate was wrong in recording a finding that the disputed lands would be settled with O.Ps.1 to 3 to the exclusion of the petitioners and his finding is liable to be set aside. This contention requires careful examination.
3. Before examining the relevant question of law it would be appropriate to notice the findings of both the subordinate authorities. The Addl. Tahasildar came to the conclusion that the petitioners and O.Ps.1 to 3 were living jointly in one house on payment of one Choukidari tax and they were in joint possession of the disputed agricultural lands and that rents and water-rates were being paid jointly by both the parties. On these findings he arrived at a clear conclusion that the petitioners were co-sharers and that the disputed lands would be settled with them along with O.Ps.1 to 3.
4. So far as the factual aspect is concerned, the appellate authority arrived at the same conclusion. His finding may be quoted in his own language as follows:-
"It is clear from the finding of the lower court that the parties were living together and enjoying the usufructs of the land peacefully until the recent settlement operations. After the settlement was taken up the appellants (O.Ps.1 to 3) wanted to get the lands recorded in their name exclusively and there was protest from the respondents (petitioners). In the preliminary records both parties have been jointly recorded in respect of the land. The matter is still pending before the Settlement Officer for decision. As already discussed, the mere fact that the parties were living jointly cannot establish the claim of the respondents (petitioners) as in
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