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2008 Supreme(Ori) 258
2008 (II) OLR — 278
B.P. DAS, J.
Shyam Sundar Sahoo (dead) and after him, Parbati Sahoo and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
O.J.C. No.1020 of 1991
Decided on 17th June, 2008.
For Petitioner:S/Shri P. K. Mohanty and B. Routray
For Opp. Parties:Smt. M. Agarwal, S/Shri R. K. Mohanty, A. Mohapatra and Addl.Standing Counsel
Headnote:ORISSA SURVEY AND SETTLEMENT ACT, 1958 - Sec. 32 - T.P.Act - Sec. 54 - Transfer of land under Registered sale deed dated 19.4.1965 pursuant to the partition effected by Registered Parti¬tion Deed dated 12.4.1957 - Suo motu appeal filed by the State before the Settlement Officer - Settlement Officer passed order that the Registered sale deed dated 19.4.1965 was incomplete due to non-delivery of possession - Commissioner set aside the order of Settlement Officer, holding the sale deed as valid and that void ability of the registered sale deed was not within the compe¬tence of the Settlement Court to decide - Writ - Discussing the facts, contention and provisions of law held, the Registered Partition Deed dated 12.4.1957 is void ab initio and that the title of the contesting O.P. pursuant to the purchase made vide Registered sale deed dated 19.4.1965 is subject to fulfilment of the conditions laid down in Section 54 of the T.P.Act, which can be thrashed out in proper Court of law - Order passed by the Commissioner is quashed.
In the counter affidavit filed by the contesting opposite parties, i.e., O.P. Nos.2 and 3, it has been stated that after the death of Bhima, the entire property recorded in C.S. plot No.3156 was equally partitioned between Banchhanidhi and Batakrushna as per the Registered Partition Deed dated 12.4.1957 whereafter Banchhanidhi transferred Ac.1.222.5 Kadis in favour of O.P. No.2-Corn Processing Co.. The order in vesting case No.4127/1963-64 (Annexure-L) in which C.S. plot No.3156 has been settled in favour of Banchhanidhi, Batakrushna and Bhima reveals that till disposal of Vesting case No.4127/1963-64 Bhima was alive. There¬fore, the assertion of the opposite parties that the suit C.S. plot No.3156 was partitioned in 1957 between Batakrushna and Banchhanidhi, after the death of Bhima, is not sustainable. Further, with the coming into force of the O.E.A. Act in 1951, the suit lands in C.S. plot No.3156, which were the ex intermedi¬ary lands, vested to the State and thus became the Govt. lands and as such the same were not partiable in 1957. Once the assump¬tion of entitlement through purchase basing on the void partition deed of 1957 goes, the title of the contesting opposite parties would be valid to the extent of the share of Banchhanidhi as per the order passed the Vesting Case No.4127/1963-64. The flow of title pursuant to the transfer made in 1965 is again subject to satisfaction of the conditions enshrined in Section 54 of the Transfer of Property Act. The plethora of judgments cited and the transfers made by either party are also subject to the fulfilment of the conditions laid down in Section 54 of the T.P. Act. The settled position of law is that settlement record neither creates nor extinguishes title and that settlement R.O.R. hints at presumption of possession only. This being the position of law under the Orissa Survey and Settlement Act under which the im¬pugned revisional order under Section 32, vide Annexure-4, and the appellate order under Section 22, vide Annexure-2, have been passed, the entire exercise is limited to find out the possessor of the lands after verification of title obtained through documentary evidence. The appellate Court has held that the petitioner and his brothers are in possession of the suit lands by raising one compound wall coupled with the final R.O.R. Khata No. 550 finally published under Section 12 of the O.S.S. Act in October, 2000, copy of which is annexed as Annexure-G, and this goes on to prove the assertion of the petitioner relating to possession. (Paras - 6 to 10)
JUDGMENT
B.P. DAS, J. — The petitioner-Shyam Sundar Sahoo having died during pendency of the writ petition is now represented by his legal heirs, petitioner Nos.1/a to 1/h. However, for the purpose of convenience, I shall refer him as petitioner in the course of this judgment.
2. This writ petition is directed against the order dated 15.12.1990 passed by the Commissioner of Land Records and Settle¬ment, Orissa, under Section 32 of the Orissa Survey and Settle¬ment Act, 1958 (‘the Act’ hereinafter) in R.P. No.421 of 1990, vide Annexure-4 in which the order dated 14.8.1990 passed by the Settlement Officer, Cuttack, in Suo Motu Appeal Case No.49 of 1990, vide Annexure-2, was set aside and the suit property was directed to be recorded in favour of Corn Processing & Co., O.P. No.2 herein.
3. Bereft of unnecessary details, the facts of the case are that not in final Hal plot Nos.580 Ac.0.715, 578 Ac.0.515, 566 Ac.0.530, 579 Ac.0.488, 565 Ac.0.045, 564 Ac.0.118 under Khata 256 Cuttack Town, corresponding to 1930 C.S. Plot No.3156 Ac.2.505 stood recorded in Sabik Khata No.65 in Mouza Madhupatna, Unit No.32, Cuttack Town, in favour of Banchhanidhi Sahoo, son of Baidhar Sahoo, Batakrushna Sahoo and Hadibandhu Sahoo, sons of Madhu Sahoo, under Nij Dakhal status in Part 2 Khewat No.12. The petitioner-Shyam Sundar Sahoo, i.e., the common ancestor of substituted petitioner Nos.1/a to 1/h, along with pro forma O.P. Nos.4 to 7 are the lineal descendants of Batakrushna, the Sabik recorded co-sharer. To supplement, the petitioner has furnished the following genealogy :
Madhu Sahoo
In an alleged Registered Partition Deed No.2401 dated 12.4.1957/24.3.1957 executed between Batakrushna and Banchha¬nidhi, an area of Ac.1.252.5 Kadis was allotted to each branch. Out of the share of Banchhanidhi, an area of Ac.0.030 was ac¬quired by the State Govt. and the remaining Ac.1.222.5 Kadis was sold by Banchhanidhi under R.S.D. No.2641 dated 19.4.1965/16.4.1965 to O.P. No.2-Corn Processing Co., which was claimed to have been converted into Jwalla Roller Flour Mills & Pvt. Ltd., O.P. No.3. In 1966 petitioner’s father-Batakrushna also sold a portion of his share to one Utkal Equipments and Chemicals but possession was not delivered to the said transfer¬ee-Utkal Equipments and Chemicals as the sale deed had not been acted upon. During the settlement operations, the suit lands were recorded in two Khatas. Hal plot Nos.580 and 578 with a total area of Ac.1.230 were recorded in Hal Khata No.256 in favour of Banchhanidhi and Batakrushna with note of forcible possession in favour of Utkal Equipments and Chemicals represented by Hrusikesh Panda, son of Sadananda Panda. Further Hal plot No.566, 579, 565 and 564 with a total area of Ac.1.181 was recorded in Hal Khata No.160 in favour of Corn Processing Co. represented by Jwalla Prasad Sikaria, O.P. No.2. A Suo Motu Appeal bearing No.49 of 1990 was filed by the State before the Settlement Officer, Cut¬tack, impleading the writ petitioner and his four brothers as opposite parties where the present Q.P. No.2-Corn Processing Co. appeared and was heard. The Settlement Officer by order dated 14.8.1990, Annexure-2, directed to combine Hal Khata No.160 consisting of plot Nos.566, 579,565 and 564 with Hal Khata No.256 consisting of Hal plot Nos.578 and 580 and to record all the suit plots in favour of the writ petitioner and his four brothers on the ground that all those plots were possessed by them in one compound and that in R.S.D. dated 19.4.1965 sale was incomplete due to non-delivery of possession. Against the aforesaid order dated 14.8.1990 passed by the Settlement Officer, Cuttack, in Suo Motu Appeal Case No.49/1990, O.P. No.2-Corn Processing Co. filed R.P. Case No.421/1990 before the Commissioner of Land Records and Settlement, Orissa under Section 32 of the Orissa Survey and Settlement Act, 1958 (shortly called ‘OSS Act’) impleading peti¬tioner Shyam Sundar Sahoo and his four brothers as opposite par¬ties with a prayer t
