JUDGMENT

BISWANATH RATH, J. - This writ application has been filed challenging the order dated 9.1.1995 passed by the Tahasildar, Tirtol, in O.L.R. Case No. 72/1986 in exercise of power under Section 9(1) of the O.L.R. Act, vide Annexure-1.

2.Short background involved in this case is that the disputed property under C.S. Khata No. 946, Plot No. 35 measuring Ac. 0.10 decs. And Plot No. 19 measuring Ac. 0.15 decs. (out of it Ac. 0.02 deca.) was originally recorded in the name of one Jagabandhu Mohanty, who by a registered sale deed in the year 1944 transferred the same in favour of his daughter, Sundaramani Dei along with other properties. After marriage of Sundaramani Dei, since she was staying away from the village, her mother, a widow was taking assistance of a family friend, Purna Chandra Swain, O.P.2 for dealing with the household property standing over the disputed plot. In 1972 Sundaramani Dei entered into an oral agreement for sale of the disputed land in favour of one Hari Sahu, an adjoining land owner. Taking advantage of the absence of Sundaramani Dei in the particular village, Purna Chadra Swain, O.P. 2 started paying rent for the disputed properties on behalf of Sundaramani Dei and rent receipts were issued indicating payment was being made by Purna Chandra Swain, O.P. 2. In the meantime, Sundaramani Dei died. Purna Chadra Swain and his brothers filed O.L.R. Case No. 72/1986 for declaration of theirs as raiyat over the disputed property taking recourse to Section 9(1) of the O.L.R. Act.

Leaving apart other history available in the case, as not relevant for the purpose, this Court now proceeds to decide the issue involved in the case. The O.L.R. Case No. 72/1986 was disposed of on contest of the parties in favour of O.Ps. 2 & 3 holding that O.Ps. & 3 are able to establish their holding the disputed property with permission of the original owner and as such, they are entitled to be declared as raiyat.

3.Challenging the order passed in O.L.R. Case No. 72/1986, vide Annexure-1, Sri Mohanty, learned counsel for the petitioners, contended that not only there is no whisper in the O.L.R. Case No. 72/1986 with regard to the fact that O.Ps. 2 & 3 are raiyats/tenants in the village but there is also no material even forthcoming in spite of a report being called for during pendency of the proceeding to throw any light in establishing the case in favour of O.Ps. 2 & 3 that they are either tenants or rayats in respect of any agricultural property in the particular village so as to get the benefit of the provision of Section 9(1) of the O.L.R. Act. Sri Mohanty further contended that in absence of satisfying ingredients of the Section 9(1) of the O.L.R. Act, the trial Court passing the impugned order solely relying upon the materials available on record to establish that O.Ps. 2 & 3 were merely possessing the disputed property with permission makes the impugned order invalid and it is in these premises and after drawing the attention of this Court to several observations of the Court below, Sri Mohanty, learned counsel for the petitioner prayed for setting aside the impugned order, vide Annexure-1.

4.Mr. Dash, learned Additional standing Counsel appearing for O.P.1, has not disputed the stand taken by the learned counsel for the petitioner rather fairly supported the stand of the learned counsel for the petitioners on the footing that the same had the support of law.

5.There is no appearance on behalf of the contesting opposite parties at the time of hearing in spite of there being appearance of a set of Counsel on behalf of O.Ps. 2& 3.

6.Having considered the contentions of the appearing parties, after going through the pleadings of the respective parties available all through and the facts narrated in the impugned order, this Court finds that the entire case of O.Ps. 2 & 3 in the Court below is based on un-disputed fact that at some point of time, the house standing over the disputed property was being allowed by the original o