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IN THE HIGH COURT OF ORISSA AT CUTTACK

OJC No.16866 of 1997

Dandapani Dandasena and

another

….

Petitioners

Mr. B. Panigrahi, Advocate

-versus-

Tutisa Majhi and others

….

Opp. Parties

Mr. Dillip Kumar Mishra,

Additional Government Advocate

(For Opposite Party Nos. 3 and 4)

CORAM:

JUSTICE K.R.MOHAPATRA

Order No.

ORDER

11.08.2021

10.

1.

This matter is taken up by hybrid mode.

2.

As prayed for, Mr. Panigrahi, learned counsel is

permitted to place the matter on behalf of Mr. S. K. Padhi,

learned counsel for the Petitioners.

3.

Petitioners in this writ petition, seek to assail the order

dated 16^th July, 1997 (Annexure-4) passed by the Additional

District Magistrate, Gajapati at Paralakhemundi-Opposite Party

No.3 in Regulation Appeal Case No.5 of 1995, whereby he

confirmed the order dated 30^th May, 1995 (Annexure-3) passed

by Officer on Special Duty (LR), Paralakhemundi-Opposite

Party No.4 in RMC No.43 of 1993 directing restoration of the

land in question in favour of the petitioners therein together

with imposition of a penalty of Rs. 500/- on the Petitioners

(Opposite Party therein).

4.

Proceeding under Section 3(2) of the Odisha Schedule

Areas Transfer of Immovable Property (by Scheduled Tribes)

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Regulations, 1956 (for short, ‘Regulations’) was instituted on

an application filed by Opposite Party Nos. 1 and 2 along with

one Bidu Majhi for restoration of the land pertaining to Plot

Nos.3 and 4 under Khata No.2 to an extent of area Ac.1.453

decimal and Ac.0.0890 decimal under mouza Rajakhama in the

district of Gajapati (for short, ‘the case land’) on the ground

that the father of Opposite Party No.1, namely, Dudu Majhi

was the owner in cultivating possession of the case land and he

mortgaged the same to one Nilakantha Dandasena for a

consideration of Rs. 600/-. Although said Dudu Majhi returned

the money, but said Nilakantha Dandasena managed to record

the case land in the name of his wife, namely, Kandhuni

Dandasena and others in the settlement operation. They came

to know about the same when one Suku Bada Raita cultivated

the case land. Hence, the application was filed for restoration

of the case land in favour of the Petitioners therein.

4.1

On being summoned, the Petitioners appeared and filed

their objection stating that after death of Nilakantha Dandasena

and his wife, Petitioner No.1, namely, Dandapani Dandasena,

being the brother of late Nilakantha Dandasena succeeded the

case land and for his legal necessity, has sold a portion of the

case land to Petitioner No.2, namely, Suku Bada Raita. As

such, they are in lawful possession over the case land.

4.2

The OSD (Land Reforms)-Opposite Party No.4 taking

into consideration the oral evidence led on behalf of the parties

and materials available on record, came to a conclusion that the

present Petitioners are in unlawful possession over the case

land and accordingly directed for restoration of the case land in

favour of Opposite Party Nos.1 and 2 and Budu Majhi.

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Assailing the same, the Petitioners filed Regulation Appeal

No.5 of 1995, which was also dismissed vide order under

Annexure-4. Hence, this writ petition has been filed.

5.

Mr. Panigrahi, learned counsel for the Petitioners

submits that there is no material on record except the oral

evidence led on behalf of Opposite Party Nos.1 and 2 to the

effect that the said Dudu Majhi was the owner in possession

over the case land. Although it has been alleged that the land

was mortgaged in favour of Nilakantha Dandasena by Dudu

Majhi, but there is no document to that effect. The same was

also stoutly denied by the Petitioners in their objection as well

as in evidence. On the other hand, settlement ROR prepared in

favour of Kandhuni Dandasena was never challenged. Thus,