Full Judgment
1. Heard. A suo motu ceiling case under the provisions of the Orissa Land Reforms Act being O.L.R. Case No. 305 of 1975 was initiated by the Tahasildar. Jaipatna in the district of Kalahandi exercising powers of Revenue Officer for determining ceiling area of opp. party No. 5, namely, Srimukha Behera. In the said ceiling proceeding opp. party No. 5, Srimukha Behera, claimed that his mother, the original writ petitioner (since deceased) and his married daughter were entitled to two separate ceilings. It was claimed that there was a partition prior to the appointed date between the mother and opp. party No. 5 and the mother was enjoying the land allotted to her remaining in separate cultivating possession. By judgment and order dated July 29. 1976 the Tahasildar. Jaipatna accepted the plea that Bhargabi Devi, the original writ petitioner was entitled to a separate ceiling, but disallowed the claim of separate ceiling in favour of the daughter of opp. party No. 5. Opp. party No. 5 filed an appeal before the Addl. District Magistrate, Kalahandi against the rejection of his claim that his daughter was entitled to a separate ceiling. The State of Orissa did not file any appeal against that part of the order allowing Bhargabi Devi a separate ceiling. The appellate authority, however, went beyond the scope of the appeal and set aside the order of the Revenue Officer allowing a separate ceiling in favour of Bhargabi Devi, the original writ petitioner while dismissing the appeal of opp. party No. 5.
2. It also appears that the appellate authority did not issue any notice to Bhargabi Devi although the order ultimately passed by him went against her. Opp. party No. 5, thereafter filed a revision before the revisional authority which was rejected. On the basis of the appellate order that Tahasildar-cum-Revenue Officer prepared a Schedule of the vested land and included the lands of Bhargabi Devi the original writ petitioner in the said Schedule. Thereafter the original writ petitioner filed an appeal before the appellate authority. The appellate authority dismissed the appeal. The original writ petitioner filed a revision which was also rejected. Hence the present writ application. During pendency of this writ application the original writ petitioner Bhargabi Devi died and she has been substituted by the present petitioners who are claiming to be her heirs on the basis of a registered Will executed by Bargabi Devi on May 23, 1984.
3. From the facts as stated above, it is clear that the order passed by the Tahasildar-cum-Revenue Officer in favour of Bhargabi Devi attained finality inasmuch as the State did not file any appeal against any part of the order. In this connection reference may be made to the decision of the Supreme Court in Choudhury Sahoo (dead) and L. Rs. v. State of Bihar and Surajballi Sahoo etc. v. State of Bihar and Ors. reported in AIR 1982 SC 98. Following the said decision of the Supreme Court we accept the contention raised in the writ petition that the order passed by the appellate authority setting aside the order passed by the Tahasildar in favour of Bhargabi Devi was/is without jurisdiction.
4. Accordingly, the writ petition is allowed. The order passed by the Tahasildar-cum-Revenue Officer in favour of opp. party No. 5, Bhargabi Devi is affirmed, the consequential order of vesting of the land in favour of Bhargabi Devi passed try the Tahasildar, Jaipatna is also set aside, and the other orders refusing to interfere with the said order of the appellate authority are held to be unsustainable. The Tahasildar-cum-Revenue Officer will now prepare a fresh vesting schedule excluding the land included in the ceiling of Bhargabi Devi.
Let this order be communicated to opp. parties Nos. 1 to 4. Requisites for communication be filed within one week.