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IN THE HIGH COURT OF ORISSA
P.C. Naik, Dipak Misra, JJ.
KRUSHNA PANDA - APPELLANT
Versus
SMT. GODABARI ALIAS SUNDARI PANDA AND OTHERS - RESPONDENT
Original Jurisdiction Case No. 1368 of 1990
Decided On : 20-09-1996
CONSOLIDATION OF HOLDINGS - ORISSA CONSOLIDATION OF HOLDINGS AND PREVENTION OF FRAGMENTATION OF LAND ACT, 1972 - SECTION 9(3) - HINDU SUCCESSION ACT, 1956 - SECTION 14 - POSSESSION OF PROPERTY BY WIDOW - ENLARGEMENT OF LIMITED ESTATE INTO ABSOLUTE RIGHT - ADVERSE POSSESSION - SALE OF PROPERTY BY WIDOW - VALIDITY.
Fact of the Case:
The petitioner, claiming to be the owner of certain properties, filed an objection case under Section 9(3) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, seeking to record his name in the record-of-rights. The Consolidation Officer and the Deputy Director allowed the objection, but the Commissioner of Consolidation reversed their orders. The petitioner challenged the Commissioner's order by way of a writ petition.
Finding of the Court:
The court held that the petitioner had a valid title to the properties, as the limited estate of the widow, from whom he had purchased the properties, had blossomed into an absolute right by operation of Section 14(1) of the Hindu Succession Act, 1956. The court also held that the Commissioner's order was unsustainable and quashed it.
Issues: 1. Whether the widow had an alienable interest in the properties at the time of sale. 2. Whether the petitioner had acquired title to the properties by adverse possession.
Ratio Decidendi: 1. The court held that the widow had an alienable interest in the properties at the time of sale, as her limited estate had blossomed into an absolute right by operation of Section 14(1) of the Hindu Succession Act, 1956. The court relied on the following principles: (a) Section 14(1) of the Hindu Succession Act, 1956, abolishes the concept of limited ownership in respect of a Hindu female and provides that any property possessed by her would thereafter be held by her as a full owner. (b) The expression 'possessed' in Section 14(1) has been used in the sense of having a right to the property or control over the property. (c) The right to receive maintenance is sufficient title to enable the ripening of possession into full ownership if the widow is in possession of the property in lieu of maintenance. 2. The court held that it was not necessary to consider the issue of adverse possession, as it had already concluded that the widow had an alienable interest in the properties at the time of sale.
Final Decision: The court allowed the writ petition and quashed the Commissioner's order.
JUDGMENT :
Dipak Misra, J. - Challenge is with regard to the order passed by the Commissioner of Consolidation the revisional authority under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the Act) reversing the orders passed by the original and the appellate authority namely, the Consolidation Officer and the Deputy Director by the present writ petitioner
2. The facts which emerge from the averments in the writ application are that one Sagar Panda was the common ancestor and after his death, his two sons Nidhi and Chakradhar became the owners in possession over the disputed properties, appertaining to C. S. Plot Nos. 1087, 1784, 1703, 2057, 2092, 2565, 2094 and 1734. They were amicably separated and there wars severance of status. Chakradhar died issueless leaving behind his wife Saria. Nidhi died leaving his son Bansi. Sundari is the only survivor from Bansi's branch. Chakradhar had expired prior to 1928, and as there was already severance of joint family status, name of Saria was recorded in 1928 settlement of record-of-rights as she had 8 annas interest in the property .By virtue of a registered sale deed dated 6-1-1965, she transferred the disputed properties and delivered possession thereof to the present petitioner. The petitioner in his turn had sold a portion of the suit properties to Gouranga Panda, the son of opp. party No, 1.
3. During consolidation operation, the petitioner instituted objection case No. 1331/82 u/s 9(3) of the Act, claiming for recording L. R. Plot Nos. 1233, 2007, 2294, 2334, 2933, 2335 and 1986 in his favour. There are other claimants who had prayed for recording their names on the basis of their purchase from the present petitioner. The claim of the petitioner was resisted by the opp. party No. 1 on the ground that the suit property was the property of Sagar, and Chakradhar having died prior to 1928, his wife had no alienable interest.
After stating the decision of the authorities and submissions of counsel for both sides, the Hon'ble Court held :
6. The admitted factual position is that the properties belonged to Nidhi and Chakradhar. After death of Chakradhar, name of Saria was recorded in the record-of rights. The entry in the record-of-rights was not questioned for six decades. No evidence has been adduced by the opp. party No. 1 to prove that the suit property was the joint ancestral property of Nidhi and Chakradhar. The branch of Nidhi enjoyed the properties belonging to Nidhr and Saria exclusively dealt with her property. It is relevant to state here that for considerable length of time, Saria had independently executed documents in favour of many purchasers, and one such document she had executed in favour of Gouranga Panda, son of opp. party No. 1 in the year 1976. The factual scenario as emerges makes crystal clear that the suit property was not joint ancestral property and Saris had exclusive title to the same.
7. True it is, entry in the record-of-rights does not create or extinguish the title, but it has its presumptive value in the case in hand when the entry in R. O. R. has gone unchallenged for almost 60 years and there is no rebuttable evidence in the present proceeding, it is enormously difficult to accept the submission of the learned counsel for the opp. party No. 1 that the property was joint ancestral property and there was no severance of status. On the contrary, coupled with other evidence on record, it leads to the irresistible conclusion that there was severance of status and Saria had exclusive ownership.
8. The whole factual backdrop can be analysed from another aspect. Saria's name was recorded in 1928-30 settlement and that gives rise to a presumption that she was in possession of disputed land. Her possession, at no point of time has been disputed. In the year 1965, she sold the land in favour of the petitioner and gave delivery of possession. The finding of the Consolidation Officer is that Sundari is i
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