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2008 Supreme(Ori) 40
2008 (I) OLR — 929
SANJU PANDA, J.
Golam Khan and others...Petitioners
Versus
Commissioner, Consolidation, Orissa and others...Opp. Parties
O.J.C. No.3509 of 1996
Decided on 19th February, 2008.
For Petitioners:M/s. B. Routray, Amiya, Ku. Mohan¬ty, B. Parida, B. Sarangi and B. Dash
For Opp. Parties:Addl. Govt. Advocate (For O.P. 1 to 3)
Md. Yusuf Ahmad Rahim, Almas Yusuf, B.P. Panda and Kalpataru Mishra [For O.P. 4(a)]
Mr. R. N. Ghose [For O.P.4(b) to 15)]
Headnote:1. CONSTITUTION OF INDIA, 1950 - Arts. 226 and 227 - Court should be slow in interfering with the findings of fact arrived at by the forum authorised to record the same - A writ of certio¬rari can be issued if there be, inter alia, an error of law apparent on the face of the record.
Though scope of interference with the conclusion on facts is limited, where such conclusions are perverse and are of such nature as no reasonable person could arrive at the same, there is certainly no bar on interference. A conclusion of facts based on no evidence or no relevant evidence is an error of law apparent on the face of the record.
It is established that where the finding of fact is based on no evidence, or that the finding is perverse or some vital piece of evidence which would tilt the balance in favour of the parties has been over-looked, disregarded or wrongly discarded, interfer¬ence is permissible. If the forum below has mis-directed itself in its approach, over-looked the salient features of evidence, mis-read the evidence, thereby reached erroneous conclusion, the Court has jurisdiction to set aside that finding. (Para - 11)
2. MOHAMMEDAN LAW - Share - Sons are entitled to get two shares each and daughters are entitled to get one share each. (Para - 7)
3. LAW OF SUCCESSION - Mohammedan law - Law of succession in Mohammedan law opens on the death of a Mohammedan - The rights of the heirs come into existence only on the death of the person of whom they are heirs and none else have the birth right. (Para - 8)
JUDGMENT
S. PANDA, J. — In this writ application, the petitioners have challenged the order dated 27.11.1995 passed by the Consoli¬dation Commissioner, Bhubaneswar in Consolidation Revision Case Nos.263 and 264 of 1983 whereby the Consolidation Commissioner disposed of the said two revisions under Section 36 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred as to “the Act”).
2. The brief facts of the case are as follows :
The writ petitioners are the permanent residents of village Bhandagar under Kakatpur Police Station in the district of Puri. Their case is that originally one Bahudi Khan was the owner of the land, who died in the year 1929 leaving behind his three sons, namely, Hamid, Rahim and Ashad Ali and three daughters, namely, Saiban, Haluson and Saliman. Hamid had only one son named Idrish who died on 23.7.1969. The intermediary estate vested in the year 1963 64. A claim case was filed by Idrish Khan, Golam Khan, Murtaja Khan, Mustafa Khan, Solema Bibi, Hawa Bibi and Khatija Bibi. The said claim case was settled in favour of the above seven persons in respect of villages-Lataharan, Bhandaghar and Sadans. But the land situated in village Patasundarpur, being sthitiban in character, was not vested under the Estates Aboli¬tion Act. Hence, there was no settlement in respect of the dis¬puted property situated at Patasundarpur.
3. Some portions of the disputed properties situated at Patasundarpur were acquired for excavation of canal and construction of embankment by the State Government and compensation was awarded in favour of the above seven persons. Idrish Khan being the eldest member of the family suggested to purchase some other properties from out of the compensation money. Hawa Bibi, one of the daughters of Asad ali Khan, trans¬ferred her share in favour of Idrish Khan at the time of her marriage. Hence, remaining six persons became the owners of the property in question. In the meantime, Idrish Khan died and his body was buried by the present petitioners. At the time of his funeral, the expenditures were borne by these petitioners. Before death, Idrish Khan had asked his wife, Solema Bibi to execute a sale deed in favour of the petitioners in respect of all the properties left by him and the properties of wife, Solema Bibi for the funeral expenditure. Thereafter, Solema Bibi lived with the petitioners from 1969-89. She transferred the entire share of Idrish Khan and her share in favour of Khatija Bibi, wife of Mustafa vide registered sale deed No.1508, dated 5.4.1971. During the year 1973, settlement operation began and during the settle¬ment operation, the land in question was recorded in favour of the petitioners and Khatija Bibi, Marium Bibi and others raised no objection to such recording in favour of the petitioners. Therefore, consolidation operation started in respect of villages Patasundarpur, Lataharan, Bhandagarh and Sadansa. During prepara¬tion of the second part land register, the disputed land was recorded in favour of five members, namely, the petitioners, Khatija Bibi and Solema Bibi. Against such entry in the land register of village Patasundarpur, an objection under Section 9(3) of the Consolidation Act was filed by Marium and others and another objection was filed by Golam Khan and others to delete the name of Solema Bibi. The Consolidation Officer vide his order dated 20.9.1982 rejected the objection filed by the opposite parties on the finding that the land register had been correctly prepared in favour of the rightful owners. He further observed that Marium and her three sisters had never come forward to claim the land. It is the son of Marium (Jilani Khan) who came up with the above objection case. Further, the Consolidation Officer held that Hamid died in the year 1935 and his four daughters were not in possession over the disputed land. It was also held by the Consolidation Officer that the four daughters of Hamid Khan remained si
