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IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.19298 OF 2021

Hariom Goyal and another

&.

Petitioners

Mr. Amiya Kumar Behera,

Advocate

-versus-

State of Odisha and others

&.

Opp. Parties

Mr. Dillip Kumar Mishra,

Additional Government Advocate

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

10.08.2021

03. 1.

This matter is taken up through hybrid mode.

2.

This writ petition has been filed assailing the order dated

25^th March, 2021 (Annexure-1) passed by the Additional

Tahasildar, Bhubaneswar-Opposite Party No.6 in Mutation Case

No.8752 of 2021.

3.

Mr. Behera, learned counsel for the Petitioners submits

that assailing recording of the suit land in Government Khata,

one Nabakishore Ray had filed T.S. No.162 of 1993 for

declaration of his right, title and interest and possession over the

suit land as well as for permanent injunction against

functionaries of the Government. The suit was decreed ex parte

in the Lok Adalat vide judgment dated 25^th October, 1998.

Pursuant to the judgment passed in T.S. No.162 of 1993, said

Nabakishore Ray had filed Mutation Case No.949 of 2000 and

R.O.R. was corrected accordingly in his name. Subsequently,

said Nabakishore Ray sold an area of Ac. 0.230 decimals of land

out of Ac.1.300 decimals pertaining to Plot No.360 under Khata

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No.611/1281 to Gajanan Property Dealer & Construction Pvt.

Ltd. Thereafter, several transactions were made and ultimately,

the Petitioners had purchased one unit from the apartment

constructed over the case land vide Registered Sale Deed

No.89876 dated 2^nd August, 2012 and are in possession thereof.

While the matter stood thus, the Opposite Party No.4-Director,

Estate-cum-Joint

Secretary

to

Government

of

Odisha,

Bhubaneswar filed an application under Order IX Rule 13

C.P.C. to set aside the ex parte decree passed in T.S. No.162 of

1993, which was registered as CMA No.336 of 2003. However,

said application was not accompanied by an application for

condonation of delay. Although several transactions had taken

place in the meantime, but the original tenant, namely,

Nabakishore Ray, was made a party to the said CMA, who

contested the same. Learned Civil Judge although vide his order

dated 4^th February, 2008 (Annexure-11) held that since no

compromise or settlement has been arrived at between the

parties, the matter could not have been decreed ex parte in the

Lok Adalat and that judgment and decree passed in the Lok

Adalata on 25^th October, 1998 in T.S. No.162 of 1993 is non est

in the eyes of law, but ultimately dismissed the CMA being not

maintainable. Relying upon the said order, the Opposite Party

No.4 filed Mutation Case No.8752 of 2021. The Additional

Tahasildar, Bhubaneswar, on the date of initiation of the

proceeding, i.e. 25^th March, 2021, although asked for R.I.

report, but proceeded to decide the mutation case on the very

same day taking into consideration the observations made by

learned Civil Judge (Senior Division), Bhubaneswar in CMA

No. 336 of 2003.

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4.

It is submitted by Mr. Behera, learned counsel for the

Petitioners that neither the Petitioners were given an opportunity

of hearing in the CMA nor they were given an opportunity of

hearing in the mutation case itself. The Additional Tahasildar,

Bhubaneswar without issuing notice to the Petitioners, who are

admittedly in possession over the land in question, hurriedly

disposed of the mutation case on the date of its initiation, i.e, 25^th

March, 2021. He further submits that the observations made by

learned Civil Judge (Senior Division), Bhubaneswar in CMA

No.336 of 2003 is not executable as the CMA was dismissed as

not maintainable and there is no observation in the order that the

ex parte decree passed