Rule 21 of the Orissa Survey and Settlement Rules, 1968 requires the name of each tenant or occupant to be recorded, in addition to other particulars, when the order is made u/s 11 of the Act.

JUDGMENT :

A. Pasayat, J. - Petitioners call in question legality of the order of the Commissioner, Land Records and Settlement, Orissa, Cuttack (in short, 'the Commissioner'), passed u/s 15 of the Orissa Survey and Settlement Act, 1958 (in short, 'the Act') holding that petitioners' note of possession could not have been recorded while preparing the settlement records. The Executive Officer, Cuttack Municipality (opp. party No. 2) had filed the revision against recording of possession note in respect of plot Nos. 201, 202, 207 and 211 under Hal Khata No. 157 relating to Cuttack town unit No. 21, Ranihat in Settlement records recorded and finally published in favour of the Municipality. Stand of the Municipality was that it being the owner of the aforesaid plots and the Hal Record-of-rights (in short, 'the ROR') having been prepared accordingly, note of possession in respect of the present petitioners, and 11 others should be deleted. Stand of present petitioners and 11 others who were opp. parties before the Commissioner was continued possession in respect of suit plots for more than 30 years, and payment of tax to the Municipality. They claimed to have acquired title by adverse possession and, therefore, according to them, the note of possession as recorded in the ROR was to be continued. The Commissioner disposed of the matter with the following observations :

"The revenue Courts are not competent to confer title on adverse possession. Title belongs to the Municipality and it is not necessary to record the note of possession whether the possession is legal and with the consent of the Municipality or illegal, since there is no joint ownership or right share of the O. Ps."

2. Stand of the petitioners in this writ application is that the Commissioner has not taken note of Rule 21 of the Orissa Survey and Settlement Rules, 1968 fin short, 'the Rules') which requires the name of each tenant or occupant to be recorded, in addition to other particulars, when the order is made u/s 11 of the Act. Learned counsel for the Municipality, on the other hand, submitted that settlement authorities were only required to record the name of owner of the land, and even if a person is found to be in possession his name need not be recorded. According to him, Rule 21 cannot be too narrowly construed.

In the counter-affidavit filed by the State its stand is that Rule 21 if interpreted correctly will lead to the conclusion that recording of forcible possession (which will mature to adverse possession and is on interest in land) may be recorded in the remarks column of the ROR, or the possession of the tenant who is declared as such by the competent Court having interest in land may be recorded in the remarks columns of the ROR. It is further stated that permissive possession in land can be recorded in the ROR. However, reference has been made to a circular issued by the State Government directing that note of forcible possession should not be recorded, and the settlement authorities should not record such possession without any title to the land, to avoid unnecessary litigation.

3. It is fairly accepted by the counsel for the parties that if Rule 21 permits recording of note of possession any circular to the contrary would not be operative. In essence the scope and ambit of Rule 21 fall for consideration in this writ petition. A few other provisions having relevance need to be noticed along with Rule 21. The power to issue direction for preparation of Record-of-rights is vested in Government u/s 11 of the Act. Sub-section (5) of the said section provides that the Khatian shall show such details as may be prescribed. Relevant rules prescribed are Rules 21 and 22.

Section 11 (5) and Rules 21 and 22 read as follows :

" Section 11 (6) : The record of-rights shall comprise of--

(a) The khewat which shall show the character and extent of proprietary interest and may also show the particulars of other rent receiving interests ; and

(b) The khatian which shall show