IMPORTANT POINT
Court while relying upon a Will is required to be circumspective. Contentious issue of title can only be decided by civil court.

ORDER

K.R. Mohapatra, J.—Due to outbreak of Covid-19, this matter is taken up through Videoconferencing.

2. Heard Mr. P.K. Rath, learned counsel for the petitioners, Mr. S. Mishra, learned Additional Standing Counsel for the State-opposite party nos.1 and 2 and Mr. D.P.Mohanty, learned counsel for the opposite party no.3.

3. Since the issue involved in both the writ petitions is similar, those are taken up together and are disposed of by this common order.

4. W.P.(C) No.13832 has been filed assailing the common order dated 28.06.2018 (Annexure-1) passed by the Additional Commissioner, Consolidation & Settlement, Sambalpur on the petition filed for recall of order dated 20.06.2016 passed in R.P. No. 587 of 2016 and W.P.(C) No. 13833 of 2018 has been filed in respect of order passed in R.P. No.939 of 2017 respectively, wherein learned Addl. Commissioner while adjudicating the revision petition (R.P. No. 939 of 2017) together with an application for recall of the order dated 20.06.2016 (Annexure-5) passed in Revision Petition No.587 of 2016 recalled the order dated 20.06.2016 and allowed the R.P. No. 939 of 2017 directing the Tahasildar, Lathikata to make necessary correction of the R.O.R. in the name of opp. party no.3 after due verification of the relevant documents.

5. Mr. Rath, learned counsel for the petitioners submits that the land in question was recorded in the name of father of the petitioners, namely, Narendra Kumar Pati and R.O.R. in respect of the case land was published on 30th October, 2013 (Annexure-3). Said Narendra Kumar Pati breathed his last on 12.01.2012. However, Hal R.O.R. was published in his name on 30.10.2013. Accordingly, the petitioners in both the writ petitions filed R.P. No.587 of 2016 under Section 15(b) of the Orissa Survey & Settlement Act, 1958 (for short ‘the Act’) for correction of the R.O.R. in their name. Since the sisters of the petitioners filed affidavit stating that they have no objection to record the case land in favour of the petitioners, the revision was disposed of on 20.06.2016 (Annexure-5) by the Additional Commissioner, Consolidation & Settlement, Sambalpur with a direction to correct the R.O.R. in the name of the petitioners. Accordingly, R.O.R. was corrected and was finally published under Annexure-6. Subsequently, the opposite party no.3 filed a petition to recall the said order dated 20.06.2016 (Annexure-7) claiming his title over the land in question by virtue of a Registered Will stated to have been executed in his favour by the father of the petitioners, namely, late Narendra Kumar Pati on 30.09.2005. The opp. party no.3 also filed revision petition under Section 15(b) of the Act, which was registered as Revision Petition No.939 of 2017. Both the revision petition as well as the petition to recall the order dated 20.06.2016 were taken up together by the Additional Commissioner, Consolidation & Settlement, Sambalpur. The Addl. Commissioner taking into consideration the Registered Will stated to have been executed by Narendra Kumar Pati as well as the affidavits of attesting witnesses, namely, Satyanarayan Singh and Rama Chandra Kissan allowed R.P. No.939 of 2017 and recalled the order dated 20.06.2016 passed in R.P. No.587 of 2016 vide his common order dated 28.06.2018 under Annexure-1, which is under challenge in these writ petitions.

5.1 Mr. Rath, learned counsel for the petitioners further submits that the opposite party no.3 is a stranger to the family of the petitioners. The Will alleged to have been executed in favour of opposite party no.3 by their father had never seen the light of the day till the petition to recall the order dated 20.06.2016 was filed by the opposite party no.3. It is his submission that the Settlement Authority lacks jurisdiction to decide the contentious issue of title. In support of his case, he also relied upon the decision of this Court in the case of Alekh Chandra Rath v. Commissioner of Land Records and Settlement, Orissa, Cuttack and other