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2024 Supreme(Online)(ORI) 5158
ORISSA HIGH COURT
Sashikanta Mishra, J
GOBARDHAN KHAMARI – Appellant
Versus
SARAT CH.BOHIDAR – Respondent
RSA 594 / 2005
The consolidation ROR published after the cancellation of the consolidation scheme is invalid, and plaintiffs failed to establish continuous possession or title over the suit land.
Headnote:(A) Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 - Sections 5 and 13 - Cancellation of consolidation scheme - The trial court's findings regarding the validity of the consolidation ROR were upheld, emphasizing that the ROR published after the cancellation notification is invalid. The appellate court's reliance on the consolidation ROR was deemed erroneous as it failed to consider the implications of the cancellation notification. (Paras 12-20)
(B) Title and possession - The court ruled that the plaintiffs failed to establish continuous possession or title over the suit land after the death of their predecessor, Ashutosh Bohidar, and the defendant's possession was supported by evidence. (Paras 16-19)
Facts of the case:
The plaintiffs claimed title and possession over land previously held by Ashutosh Bohidar, who had been granted permission to reclaim it. The defendant contested this, asserting his own title through lease and possession since 1978. The trial court found in favor of the defendant, which was reversed by the appellate court, leading to this appeal.
Findings of Court:
The appellate court's judgment was set aside, confirming the trial court's ruling that the plaintiffs lacked valid title and possession over the suit land. The consolidation ROR was invalid due to the cancellation of the consolidation scheme. (Paras 20)
Issues: The main issues included the validity of the consolidation ROR post-cancellation and the determination of title and possession over the suit land. (Paras 8-9)
Ratio Decidendi: The court held that the consolidation ROR published after the cancellation notification is without jurisdiction and cannot confer title. The plaintiffs failed to prove continuous possession or title after their predecessor's death. (Paras 12-20)
Result: Appeal allowed; the judgment of the appellate court is set aside, and the trial court's judgment is confirmed.
| Table of Content |
|---|
| 1. trial court's findings (Para 6 , 7 , 8 , 9 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 2. appeal succeeds (Para 19 , 20) |
JUDGMENT
30th November, 2024
SASHIKANTA MISHRA, J.
This is a defendant’s appeal against a reversing judgment. The judgment passed by learned Addl. District Judge, Sambalpur on 03.09.2005 followed by decree in RFA No.26/03 of 2003/2004 is under challenge whereby the judgment passed by the leaned Civil Judge, Sr. Division, Sambalpur on 17.04.2003 followed by decree in Title Suit No.184 of 1995 was reversed.
2. For convenience, the parties are referred to as per their respective status before the court below.
3. The suit property corresponds to land measuring Ac.0.13 decimals bearing Consolidation Plot No.603 under Consolidation Khata No.17 of Mouza- Kainsir with a dilapidated house standing thereon.
4. The suit was filed by the plaintiffs for declaration of their right, title and interest and confirmation of their possession over the schedule land with alternate prayer for recovery of possession and permanent injunction. The case of the plaintiffs is that one Ashutosh Bohidar was the predecessor-in-interest of the plaintiffs and proforma defendant No.2 being the Lambardar Gountia of the suit village. Said Ashutosh died on 16.10.1985. Before that, had been allowed to reclaim the land measuring Ac.4.85 corresponding to Hamid Settlement Plot No.297/B and Plot No. 66 measuring Ac.1.47 decimals. He reclaimed the property and remained in possession after making improvements. He gifted and sold some portions of the property to different persons and the remaining land was recorded in his name as described in the schedule. On 24.12.1994, the contesting defendant made an application before the Tahasildar, Sambalpur for mutation of the suit property, which was allowed in his favour behind the back of the plaintiffs in Mutation Case No.2195/94. The plaintiffs therefore, filed appeal bearing No.14 of 1995 before the Sub-Collector, Sambalpur. During pendency of the appeal, the plaintiffs finding that a cloud of doubt having been raised over their right, title and interest and possession, brought the suit in question.
5. The contesting defendant No.1 filed written statement refuting the plaint averments. It is his case that Ashutosh Bohidar was never allowed to reclaim the suit land. Moreover, the consolidation scheme issued on 18.11.1978 in respect of the suit village was subsequently cancelled by notification dated 12.04.1991. As such, consolidation Khata No.17 was invalid. On the contrary, the suit land corresponding to Hamid Settlement Plot No. 66 was recorded in the name of the government in Major settlement in Khata No.153, Plot No.214 measuring Ac.0.13 decimals, which was never challenged by Ashutosh Boihdar or his legal representatives. Subsequently, the Tahasildar, Sambalpur granted lease of Plot No.414 in favour of the defendant in Lease Case No. 95/78 and delivered possession whereupon, the defendant constructed a house on the suit land and started paying land revenue. Said land was separately mutated in his name against Khata No. 330/42.
6. Basing on the rival pleadings, the trial court framed the following issues for determination:-
“(1) Whether late Ashutosh Bohidar was allowed in Revenue Case No.5(A)/1 (9) of 1952 to reclaim the lands of Hamid Settlement plot nos.297/B and 66 of Mouza- Kainsir ?
(2) Whether pursuant to any such permission for reclamation, said Ashutosh Bohidar and after him the plaintiffs have been possessing the suit land till date ?
(3) Whether the publication of the suit land in consolidation Khata No.17 is valid under law ?
(4) Whether the suit land has been recorded in Govt. Khata during Major Settlement operation in village Kainsir ?
(5) Whether the defendant has been possessing the suit land since 1952 through his late father or since 1978 pursuant to grant of lease in lease case No.95 of 1978 ?
(6) Whether the plaintiffs or the defendant has right, title and interest over the suit prop
