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IN THE HIGH COURT OF ORISSA, CUTTACK
Biswanath Rath, J.
State Of Orissa - Appellant
Versus
Ramesh Chandra Swain & Ors - Respondent
Rvw Pet No. 422 of 2019
Decided On : 08-04-2021
LAND ACQUISITION - REVIEW PETITION - MAINTAINABILITY - SUIT FOR CORRECTION OF RECORD OF RIGHTS - LAND ACQUISITION PROCEEDING - FRAUD - SUPPRESSION OF MATERIAL FACTS - REVIEW PETITION ENTERTAINABLE - JUDGMENT OF SINGLE JUDGE IN MISCELLANEOUS APPEAL SET ASIDE - SUIT REMANDED TO TRIAL COURT FOR FRESH DISPOSAL.
Fact of the Case:
Plaintiffs filed a suit for declaration of their ownership over the land under their possession and for correction of the Record of Rights accordingly. The State-Defendant contested the matter by filing written statement. The Trial Court decreed the suit holding that the Plaintiffs are the owners of the suit property. Being aggrieved, the State-Defendant filed appeal before the Additional District Judge, Bhubaneswar. The lower Appellate Court allowed the appeal and remanded the suit for retrial. Being aggrieved with the judgment of the Additional District Judge, Bhubaneswar in remanding the suit vide T.A. No.17 of 1992 the Plaintiffs preferred M.A. No.994 of 2001. The High Court by its judgment dated 27.06.2012 allowed the Miscellaneous Appeal No.994 of 2001 holding that there has been mechanical exercise of power by the lower Appellate Court and thereby, illegally reopened the suit and while observing so, the High Court also passed a judgment declaring the judgment and decree in the suit vide O.S. No.203 of 1989 (I) becomes valid, which resulted filing of the present review by the Plaintiff-Appellants.
Finding of the Court:
The Review Petition is filed on the plea that after the judgment of this Court in M.A. No.994 of 2001 the Plaintiff-Opposite Parties filed M.C. No.25769 of 2018 praying for correction of the record on the basis of the judgment of the Court. The State claims that khata no.297 relating to mouza-Bomikhal stands recorded in the name of the G.A. & P.G. Department and being prepared and finally published by the Statutory Authority under the provisions of the Orissa Survey and Settlement Act, 1958. On further inquiry, it was also found that the private land measuring Ac. 46.44 decimals in village Bomikhal was acquired by the Government vide Revenue Department Notification No.18004-LA/271/60 Puri-R-dated 20.04.1960 for development of the road from new capital to University side. This particular land was acquired at public expenditure for public purpose. It is only after requirement of thorough verification to ascertain the Hal Sabik and pre-sabik position in the land acquisition notification, the Revenue Inspector involved clearly indicated that the area applied for mutation correspondences to the land acquired during 1960. Consequently, the Tahasildar, Bhubaneswar was provided with all details to consider the Mutation Case No.25769 of 2018 in accordance with law. The Plaintiff-Respondents by filing W.P.(C) No.13606 of 2019 attempted to quash the communication to the Tahasildar dated 26.07.2019. The aforesaid writ petition is still pending. On verification of the record involving land acquisition record pertaining to L.A. No.9/61-62, it also came to notice that though the original award along with enclosures are not available in the case record, but however, a copy of the award being available on record, it was found, an amount of Rs.2,91,955.10/- has been awarded against this very same land measuring Ac.46.644 decimals of land. Record also establishes handing over of the possession of this very land to the Revenue Officer on 27.07.1962. Award statement prepared U/s.11 of the Land Acquisition Act is also filed as available at Annexure-1 to the review petition. In the meantime, involving another development the Plaintiffs attempted to go through a contempt application against the high Officials of the Government for working-out the judgment dated 27.06.2012 passed in Miscellaneous Appeal No.994 of 2001 and with a clear intent to save the public property and very valuable property an attempt was made by the State to reopen the Miscellaneous Appeal and/or the Suit at least to be decided in taking into consideration the relevant facts and materials, which have all come to the notice of the State Authorities and have a definite help for effective adjudication of the dispute involved herein.
Issues: None
Ratio Decidendi: The judgment of the Single Judge in Miscellaneous Appeal No.994 of 2001 is set aside and the suit is remanded to the Trial Court for fresh disposal. The Trial Court is directed to conclude the suit as expeditiously as possible, but not later than six months from the date of this judgment, with opportunity of further evidence to both sides.
Final Decision: Review Petition allowed. Judgment of Single Judge in Miscellaneous Appeal No.994 of 2001 set aside. Suit remanded to Trial Court for fresh disposal.
JUDGMENT
Biswanath Rath, J. - The review petition under Order 47 Rule 1 of the C.P.C. at the instance of the State-Respondent arises out of the judgment dated 27.06.2012 passed in Miscellaneous Appeal No.994 of 2001 by the High Court thereby reversing the judgment in T.A. No.4/17 of 2001/1992 dated 12.10.2001 by the learned District Judge, Bhubaneswar interfering in a judgment and decree passed by the trial Court in O.S. No.203 of 1988-I.
2. Short background involved in this case is that the Respondent joining together filed O.S. No.203 of 1988-I in the Court of Munsif, Bhubaneswar making the State of Orissa as Defendant. The suit was filed for declaring the Plaintiffs as the owners over the land under their possession and for correction of the Record of Rights accordingly and thereby intimating the Collector, Puri to correct the Record of Rights involving the suit scheduled property therein; the property more particularly Khata No.38, Mouza-Bomikhal, Plot Nos.13 to 18 also giving therein the corresponding Khata No.109 under Mouza-Bomikhal bearing corresponding plot nos.25, 26, 32 to 36, 42 to 47, 50 to 57. The Respondents herein as Plaintiffs had their case that the Plaintiffs 1 & 2 having four ana share, the Plaintiffs 9 to 17 having five ana four paise share and the Plaintiffs 18 to 21 having two anas eight paise share in the suit property, were also recorded as such in the Record of Rights. Their ancestors being the owners were in possession and as such were recorded as Sabik Record of Rights. It is claimed that after demise of the ancestors the Plaintiffs as the successors and owners remained in possession over the same. It is further claimed that the suit plots 11 to 18 and 370 & 371 under Khata No.38 in Mouza Bomikhal were recorded in the Record of Rights published in the year 1962 in the name of their predecessors and the Plaintiffs continued in paying rent. Plaintiffs also claimed that they have occupancy right and were recognized as such with acceptance of the rents by the vendors. Even the plaintiffs were paid with compensation in respect of the plot nos.12 & 18 under khata no.38 involving the land acquisition proceeding bearing L.A. Case No.26/73. The Plaintiffs claimed that though an area of Ac.0.069 decimals out of plot no.18 were acquired, balance Ac.0.25 decimals involving the plot no.18 were continued to remain in possession of the Plaintiffs. It is, on the premises that their occupancy was never terminated, nor their rights even acquired validly, further the Government having accepted rent and acquiring a portion out of the recorded plot in 1973 is estopped to say that the plaintiffs are not the owners and in possession. While claiming that the Plaintiffs raised crops from the disputed plot during 1968-70, the certificate proceeding was initiated against the Plaintiffs for arrear rent in respect of the Khata no.38. Whereafter the Plaintiffs continued to pay rent till 1982-83. It is alleged that during current settlement the Defendant unreasonably claimed title over the property and the Settlement Authorities illegally recorded the name of the defendants over the settled property, in spite of Plaintiff's resistance to the same. It is, in the above premises, Plaintiffs claimed that the Defendants having no manner of right, title over the disputed property attempted to disturb the Plaintiffs and as such the Plaintiffs got compelled to file suit for correction of the Record of Rights giving cause of action to be 24.04.1988. The suit was registered as O.S. No.203/1989-1. Pursuant to the notice the Respondent-Defendants contested the matter by filing written statement. The State-Defendant while denying and disputing each of the averments and claim contended that the scheduled property are purely Government land after being acquisitioned by Government during 1962 as per the Land Acquisition proceeding No.9/62-63.
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