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2014 Supreme(Ori) 532
HIGH COURT OF ORISSA, CUTTACK
B.K.NAYAK, J.
Dvijottam Biswal - Petitioner
Versus
Menaka Biswal & others - opp.parties
W.P.(C) No.13699 of 2014
Decided On : 12.12.2014
Important Points
Subject
Property Law - Gift Deed Dispute
Act Referred
Headnote
Gift Deed - Disputed Land - Orissa Survey and Settlement Act, Section 22(2)(a) - The court discussed the validity of a gift deed, the unilateral cancellation of the gift deed, and the jurisdiction of authorities under the Orissa Survey and Settlement Act. The court emphasized that disputed questions of title should be decided by the civil court and that the authorities under the Orissa Survey and Settlement Act have no power to decide disputed questions of title.
Fact of the Case:
The petitioner challenged an order regarding the disputed land, which was originally gifted to the petitioner but unilaterally cancelled by the donor during a pending civil suit. The appellate authority allowed the cancellation and directed for correction of the draft R.O.R. in favor of the donor.
Finding of the Court:
The court found that the authorities under the Orissa Survey and Settlement Act have no jurisdiction to decide disputed questions of title, and the impugned order did not call for interference by the court.
Issues: Validity of the unilateral cancellation of a gift deed, jurisdiction of authorities under the Orissa Survey and Settlement Act, and the effect of the cancellation deed on the draft R.O.R.
Ratio Decidendi: The court emphasized that disputed questions of title should be decided by the civil court, and the authorities under the Orissa Survey and Settlement Act have no power to decide disputed questions of title.
Final Decision: The writ petition was disposed of, and the court directed that the final R.O.R. in respect of the disputed land, if published on the basis of the impugned appellate order, shall be subject to the result of the civil suit between the parties.
Advocate Appeared:
For Petitioner: M/s. Ramakanta Mohanty, D.Mohanty, D. Varadwaj & S. Mohanty.
For opp.parties : M/s. Upendra Ku. Samal, C.D.Sahoo, S.P. Patra & S. Naik.
JUDGMENT :
B.K.NAYAK, J.
In this writ petition the petitioner challenges the order dated 28.06.2014 (Annexure-1) passed by the Additional Sub-Collector-cum-Additional Settlement Officer, Jajpur-opposite party no.3 in Appeal Case No.16 of 2014.
2. The disputed land appertains to Plot No.5, Ac.1.13 decimals under Sabik Khata No.147 corresponding to Not Final Hal Settlement Plot No.223/1433 under Not Final Hal Settlement Khata No.497 (Ka) in mouza-Chorda, P.S.Jajpur Road under Sukinda Tahasil.
3. It is stated by the petitioner that Menaka Biswal (opposite party no.1), who is the paternal grand-mother of the petitioner, was the original owner of the case land. During the minority of the petitioner, by Registered Gift Deed No.2149 dated 28.09.1999, opposite party no.1 gifted away the disputed land to the petitioner. The petitioner through his father guardian took possession of the land and got it mutated in his favour and accordingly Mutation Khata No.147/1 was prepared in his name. During the current settlement draft R.O.R. vide Annexure-2 was prepared in the name of the petitioner. It is alleged that at the behest of the daughters of opposite party no.1 misunderstanding between the petitioner’s father and opposite party no.1 arose. Opposite party no.1 filed Civil Suit No.395 of 2007 against the petitioner and his parents in the court of Civil Judge (Senior Division) 1st Court, Cuttack, challenging the validity of the gift deed executed by her in favour of the petitioner alleging that the gift deed was a forged document and prayed to cancel the said deed. The petitioner and his parents are contesting the suit by filing written statement denying the allegations made in the plaint. The suit is now subjudice. While the suit is pending, opposite party no.1 has executed a registered deed on 06.12.2013 (Annexure-5) unilaterally cancelling the gift made in favour of the petitioner. After coming to know about such deed of cancellation, the petitioner has filed a counter claim in the suit praying to declare the cancellation deed as illegal and inoperative.
While the matter stood thus, opposite party no.1 filed Appeal Case No.16 of 2014 under Section 22(2)(a) of the Orissa Survey and Settlement Act praying to record her name in the Not Final R.O.R. in respect of the case land deleting the name of the petitioner. The petitioner filed his objection that on the basis of the cancellation deed executed by opposite party no.1 unilaterally during the pendency of the suit, Not Final R.O.R. (Draft R.O.R.) cannot be corrected. On the basis of the cancellation deed and Amin report, vide Annexure-9 opposite party no.3 passed the impugned order allowing the appeal, even though he has observed that he has no jurisdiction to declare a deed as forged.
4. It is submitted by the learned counsel for the petitioner that since the gift in respect of the disputed land was accepted by the petitioner, opposite party no.1 could not have unilaterally cancelled the gift deed, particularly when the question of validity of the gift deed is sub-judice before the Civil Court. It is also submitted that the deed of cancellation has been created purportedly on the basis of Board of Revenue Circular No.3700/IX-84/11/IGR dated 23.05.2011, as per recital made in the said deed, which has no application to the case in hand. It is further submitted that opposite party no.3 could not have taken recourse to the Amin’s enquiry report (Annexure-9), inasmuch as enquiry by the Amin, if any was never conducted in presence of the petitioner or his parents and they were not noticed for any such enquiry. It is, therefore, submitted that opposite party no.3 could not have passed the impugned order for correcting the draft R.O.R. Learned counsel for the petitioner also submits that the Board of Revenue Circular No. 3700/IX-84/11/IGR dated 23.05.2011 issued by the Inspector General of Registration (IGR), Orissa has been subsequently superseded by Board of Revenue Instruction No.5488 dated 28.
