Point of Law: Burden of proof - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

JUDGMENT :

S.K. Mishra, J.

The petitioner, being a member of the scheduled category, in this writ application has challenged the order passed by the Joint Commissioner, Settlement and Consolidation, Sambalpur-opposite party no.2 in Revision Case No.52/2005 dismissing the revision application filed by the petitioner under Section 37 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the “OCHPFL Act”). In the revision application, the petitioner prayed to prepare the record of rights with respect to Hal Plot Nos.442/3 and 362 of Khata No.21 of village Dahukbudu, P.S.-Dunguripali, Dist-Sonepur on the ground that a lease has been granted by the learned Tahasildar, Rampur in his favour in O.L.R. Case No.11/1983.

2. The opposite party no.2 without entering into the merits of the claims of the petitioner disposed of the petition observing as follows:

“It is alleged by the learned counsel for the opposite parties that the issue is related to the outcome of the result passed by the revenue authorities in O.L.R. Case No.527 of 1975 and the present O.L.R. Case No.11/1983 is a part and parcel to the main O.L.R. proceeding of the year 1975. It is argued that in the midst of continuation of the O.L.R. proceeding the matter has even been raised before the Hon’ble High Court and the issues have been settled. It is, therefore, submitted by the opposite parties that the petitioner has suppressed the matter and illegally tries to grab the properties of the opposite parties totally misleading the court. It is vehemently urged by the learned counsel that the surplus land of the opposite parties in the O.L.R. proceeding relates to the lands of village Kapasira but not of village Dahukbud. As such it is stated that the petitioner has got no locustandi in raising the present revision and therefore it is liable to be dismissed.

No satisfactory replies comes from the side of the petitioner on the very submission of the opposite parties and therefore he stands as nothing but a silence spectator over the saying of the opposite parties and utterly fails in his submission”.

From the aforesaid order, it is clear that the order allegedly passed by this Court in a writ application do not form part of the record. The number of such proceeding, which was stated to have been disposed of by this Court, has not been mentioned in the order. In order to appreciate the case, it is appropriate to take note of certain facts in chronological order.

3. On 15.7.1975 O.L.R. Case No.527/1975 of the court of the learned Tahasildar, Rampur was initiated for determining the ceiling surplus land of one Kunja Padhan who is the predecessor in interest, being the father of opposite party no.6-Krushna Chandra Padhan, of opposite parties 6 to 11. Then notices were issued. The case suffered several adjournments.

On 27.8.1976 the Tahasildar, Rampur recorded that the ceiling surplus holder Sri Kunja Padhan, S/o. Birabara Padhan of village – Kapsira has got Acs.113:858 of land in the village Kapsira and Dahukbudu (Khata Nos.36, 37, 38, 39, 40, 41 and 42 of village Kapasira and Khata No.21 of village Dahukbudu). After examining the records and taking into consideration various points raised before him, the Tahasildar allowed Kunja Padhan to retain within his ceiling limit, Plot Nos.945, 946, 996, 1018, 1397, 1398, 1399, 1398/part total measuring an area of Ac.10.000 of Khata No.36 of village Kapsira. He further allowed, the valid Kunja, homestead land pertaining to Plot Nos.993, 994, 995, 1453, 1682, 1798, 889 measuring an area of 1:050 pertaining to Khata No.36, 39 and 42 of the Village, Kapsira.

Shri Padmanav Padhan, S/o. Kunja Padhan, was also allowed to retain the land of Ac.12 acres pertaining to Khata Nos.36, 37 and 38 of the aforesaid village.

The second son of Kunja Padhan, namely, Gandharba Padhan was allowed to retain Ac.10.000 acres of land pertaining to Khata Nos.39 and 40 of the aforesaid village.

The younger son of Kun