The Petitioners' claim for settlement of homestead plots under Section 6 of the Orissa Estates Abolition Act was rejected due to lack of evidence establishing 'homestead' status and adverse possession by the objector.

JUDGMENT :

S.K. Ray, J. - Both these applications have been heard together as they are interconnected.

2. Two co-sharer intermediaries filed two separate claim cases under Sections 6, 7 and 8-A of the Orissa Estates Abolition Act (hereinafter referred to as the Act) for determination of fair and equitable rent in respect of plot Nos. 71, 72 and 73 appertaining to nijchas khata No. 28 and in respect of plot No. 82 appertaining to nizjot khata No. 29 along with other plots with which we are not concerned. The claim case by one intermediary was numbered as 51/12 of 1950 from which an appeal was carried by the opposite party to the A.D.M. Cuttack in Orissa Estates Abolition Appeal No. 13/63-64. The decision of this appeal is subject matter of O.J.C. No. 1091/69. The other claim case was numbered as 13/50 which was also subject matter of the Orissa Estates Abolition Appeal No. 15 of 1963-64. The decision of this appeal is subject matter of O.J.C. 1113 of 1969. As both the appeals Nos. 13 and 15 of 1963-64 were heard analogously the aforesaid two writ applications have also been ordered to be heard together.

3. The facts may now be stated. One parent touzi No. 3847 belonged to three co-sharers proprietors, Ramesh Chandra Rai Choudhury, Susil Chandra Rai Choudhury and Charu Chandra Rai Choudhury. In a Touzi partition the parent touzi was allotted to Ramesh Chandra Rai Choudhury and the newly carved out touzi No. 8036 was allotted to his brothers Susil Chandra Rai Choudhury and Charu Chandra Rai Choudhury. This touzi comprised of plots 71 (mango tope), plots 72 and 73 (Gharbari), appertaining to Nizjot holding 28 and of plot 82 (Bari) appertaining to Nijchas Holding 29. These four plots are the subject matter of the present controversy. The parent Touzi which was allotted to Ramesh Chandra Rai Choudhury was sold to present opposite party on 10-5-1935, who established a Math with a presiding deity Sri Radha Nikunja Thakur on a portion of it.

4. The Petitioner in O.J.C. 1091/69 is the son of Susil Chandra Rai Choudhury and the Petitioner in O.J.C. No. 1113/69 is the son of other co-sharer proprietor Charu Chandra Rai Choudhury. They inherited this Touzi on the death of their respective fathers. On abolition of this Touzi 8036 on 14-9-1953 these Petitioners filed two separate claim cases in respect of the aforesaid four plots. The opposite party filed his objection in the claim cases. The Tahasildar, Patamundai allowed the claim cases after rejecting the objections. The opposite parties preferred two appeals to the A.D.M. Cuttack. The appeals were heard together and allowed. The aforesaid 4 plots are situated within the Municipal area of Kendrapara town. Plot Nos. 71, 72 and 73 comprise one compact block. These plots have been recorded as mango tope and Gharbari appertaining to touzi No. 8036 in the settlement of record of rights. Considering the evidence of possession adduced on behalf of the objector and believing the same, the A.D.M. found that these plots were in khas possession of the objector, i.e. of the present opposite party, on the date of vesting. Consequently, he rejected the claim cases and held that these plots are to be settled with the opposite party provided he agreed to deposit necessary premiums for the lands and pay arrear rent from the date of vesting.

5. The claimants filed second appeals before the Board of Revenue from this decision of the A.D.M. The Second Appeals having been allowed, the opposite party came to this Court in O.J.Cs. 46 and 47 of 1965 challenging the maintainability of the Second Appeals before the Board of Revenue. These writ petitions were allowed on 10-4-1969 and the decision of the Board of Revenue was quashed Thereafter, O.J.C. No. 1091/69 was presented on 15-12-1969 and the other O.J.C. No. 1113/69 was filed on 23-12-1969. From the date of decision of the A.D.M. Cuttack which was rendered on 2-3-1964 these writ applications have been filed more than 5 years thereafter, and about lapse of 8 months