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1995 Supreme(Ori) 362
IN THE HIGH COURT OF ORISSA
P.C. Naik, A. Pasayat, JJ.
BASANTA KUMAR SAHU - APPELLANT
Versus
BHIKARI CHARAN SAHU AND OTHERS - RESPONDENT
O.J.C. No. 3975 of 1990
Decided On : 06-01-1995
P.K. Parida, S. Kr. Parida and B. Muduli, for the Appellant; Deepak Misra, B.S. Tripathy and P. Panda, for opp. party No. 1 and Additional Government Advocate for opp. party Nos. 2 to 5, for the Respondent
Adoption can be decided by the consolidation authorities. Power under Section 37 of the Act to be exercised with care and caution. Adoption to be proved like any other fact. Evidence under Section 50 of the Evidence Act cannot be lost sight of.
Headnote:
CONSOLIDATION OF HOLDINGS - ADOPTION - SECTION 37 - SECTION 51 - SECTION 50 OF EVIDENCE ACT - JURISDICTION OF CONSOLIDATION AUTHORITIES - ADOPTION CAN BE DECIDED BY CONSOLIDATION AUTHORITIES - POWER UNDER SECTION 37 TO BE EXERCISED WITH CARE AND CAUTION - ADOPTION TO BE PROVED LIKE ANY OTHER FACT - EVIDENCE UNDER SECTION 50 OF EVIDENCE ACT CANNOT BE LOST SIGHT OF.
Fact of the Case:
Petitioner challenged the order of the Commissioner of Consolidation accepting the plea of adoption raised by Bhikari Charan Sahu and reversing adjudications in favor of the petitioner. The Consolidation Officer and Deputy Director did not go into the claim of adoption, being of the view that such a question cannot be adjudicated by any authority under the Act.
Finding of the Court:
The Commissioner was right in his view that such a question can be decided by the consolidation authorities. The Commissioner exercised power taking note of the fact that the Consolidation Officer and appellate authority erroneously took the view that there was no scope for considering the case of adoption.
Issues: 1. Whether the Commissioner was justified in exercising power under Section 37 of the Act? 2. Whether the conclusions of the Commissioner are proper?
Ratio Decidendi: 1. Power under Section 37 is not to be exercised in a routine manner. It is intended to further ends of justice and not to set as a camouflage to get over statutory bars and prohibitions. 2. The Commissioner in the case at hand exercised power taking note of the fact that the Consolidation Officer and appellate authority erroneously took the view that there was no scope for considering the case of adoption. 3. The Commissioner came to hold that the final decree did not specifically show about the allotment of land to the petitioner. Plea of adoption was considered for the first time by the Commissioner. 4. Adoption was claimed to have been done in early forties. Petitioner's stand is that the final decree clearly indicates the allotment of land to him and the Commissioner has made an abrupt conclusion that there was no material in that regard. 5. In a case relating to adoption, oral evidence of relatives can be of considerable value. Evidence of the conduct of relations, friends, and neighbors will be relevant.
Final Decision: The writ application is allowed. No costs.
JUDGMENT :
A. Pasayat, J. - Petittioner calls in question legality of order passed by the Commissioner of Consolidation, Orissa in a proceeding underSection 37 of Orissa Consolidation of Holdings and Prevention of Fragemantation of Land Act, 1972 (in short, the 'Act') accepting plea of adoption raised by Bhikari Charan Sahu (opp. party No. 1) and reversing adjudications in favour of petitioner as done by the Consolidation Officer, Kendrapara and Deputy Director, Consolidation, Range -Ill, Kendrapara.
2. A brief reference to the factual aspects is necessary. The genealogy so far as relevant is essentially as follows :
Mana
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Radha Madhu Gadei
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Sobani Chintamani ____________
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Dinabandhu Banambar Dukhei: Ullucha Sukhei
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Basanta
Petitioner's claim is based on adjudication in T. S. No. 16 of 1936 of the Subordinate Judge, Cuttack. According to him land in question was allotted to him in the final decree proceeding in the aforesaid case. Bhikari on the other hand, claimed to have been adopted by Dukhei. As per the genealogy, Mana had three sons viz. Radha, Madhu and Gadei. So far as present dispute is concerned, it relates to Gadei's branch. Gadei had two sons namely. Dukhei and Sukhei. Dukhei's widow is Ullucha, whereas petitioner is Sukhei's son. Undisputadly, no child was born to Dukhei and Ullucha. Bhikari claims to have been adapted by them. The question whether there was any adoption is subject-matter of dispute in T. S. No. 19 of 1963 pending before the learned Subordinate Judge, Kendrapara. The Consolidation Officer and Deputy Director did not go into the claim of adoption, being of the view that such a question cannot be adjudicated by any authority under the Act. The appellate authority further held, that even if plea of adoption is entertained, the same was not established." Before the revisional authority it was stated that revision filed by Bhikari was not entertained, because of bar imposed underSection 14 of the Act. The Commissioner entertained the application in exercise of power underSection 37 (1) of the Act, though he accepted that bar underSection 14 operated. Taking note of school leaving certificate of the year 1944 and admission register of the year 1949, he held that plea of adoption has been established. He was of the view that final decree relied upon by. petitioner did n6t specifically show about allotment of land in dispute in favour of petitioner. Accordingly he accepted Bhikari's prayer for revision.
3. Mr. P. K. Parida, learned counsel for petitioner submitted that exercise of power underSection 37 of the Act by the Commissioner was uncalled for, as no reason was indicated as to why statutory remedy provided underSection 36 was not availed. Secondly, it is submitted that analysis made by the Commissioner is erroneous. Several documents which had relevance were not considered, and even the impugned order does not show that the documents in question received consideration. Mr. Deepak Miora. learned counsel appearing for opp. party No. 1 submitted that Commissioner has considered the documents filed by Bhikari as well as those filed by petitioner, and on comparison of their respective evidentiary value has preferred those filed by Bhikari, in suport of his plea of adoption. Fin3t decree in the suit did not specifically show about allotment of land in question to the petitioner and therefore, finding of fact rendered by Commissioner should not be disturbed in exercise of jurisdiction under Art. .226 of the Constitution of India. .
4. The Consolidation authorities exercise special jurisdiction conferred upon them by the statute. Section 51 of the Act throws sufficient light on the matter. Questions relating to right, title interest and liability in any land are to be decided by the consodation 1 authorities, except those which can be decided by Civil Court-and are I therefore,
