Judgment:
A.S. Naidu, J.
1. The Order Dated 22nd March, 2006 passed by the Joint Commissioner, Consolidation, Cuttack in Consolidation Revision No. 512 of 2004 (Annexure-5) is assailed in this Writ Petition.
2. The said revision was filed by the present Petitioner invoking jurisdiction of the Commissioner under Section 37(1) of the Orissa Consolidation of Holdings & Prevention of Fragmentation of Land Act, 1972, hereinafter to be called as 'the Act', in short. The Petitioner claimed to record his name in respect of the suit land appertaining to Sabik Plot Nos. 313, 314, 315, 316 & 317 of Khata No. 287 of 1977 settlement of mouza Sabalkana, P.S. Mahanga. According to the Petitioner, he had purchased the said lands by registered deed No. 1223 dated 10th March, 1966 from one Upendra.
3. The Commissioner after verification of the records & evidence both oral & documentary, came to the conclusion that the disputed land stood recorded jointly in the name of the Petitioner & two others, being Surenderanath Panda, Opposite Party No. 2 & Dillip Panda, Opp. Party No. 1. It was observed that during consolidation operation, the name of the Petitioner had been deleted 'from the record of rights in consonance with the Order Dated 4th September, 1979 passed in Objection Case Nos. 1582 of 1979 & 1906 of 1979.The Commissioner further observed that the said order passed in a proceeding initiated under Section 9(3) of the Act, was not assailed by the Petitioner by filing an appeal Under Section 12 of the Act. According to the Commissioner, the Petitioner having not exhausted the forums available to him under the Act, the revision filed Under Section 37(1) of the Act cannot be entertained & dismissed the same.
4. The Petitioner assails the said order on various grounds. It is stated that on the basis of his purchase by registered sale deed, the Petitioner had acquired valid right, title & interest & a share over the property & as the consolidation authorities had no jurisdiction to set aside a sale deed, were bound to record the lands in his favour along with others. These submissions are strongly repudiated by the contesting Opposite Parties. It is stated that the Petitioner had absolutely no interest in the property as the sale deed executed in his favour was ab initio void. According to the Opposite Parties, the consolidation authorities have no power to set aside the sale deed, if the same is voidable, but then they have the power to ignore the sale deed if the same is found to be ab initio void.
5. To appreciate the inter se submissions, it would be prudent to refer to the history of the case. Admittedly, the lands in question belonged to one Arta Panda, who had three sons being Kanduri, Mayadhara & Laxmidhar. Upendra was the son of Kanduri & Hemalata (Opp. Party No. 3) is the daughter of Upendra. Jayadev (Petitioner) belongs to Mayadhar's branch being the grand son of Banchhanidhi. He claims to have been adopted by Baikuntha, the eldest son of Mayadhara. Baikuntha had executed a gift-cum-adoption deed in favour of the Petitioner on 18th December, 1973. By virtue of the said gift deed, Jayadev claimed half share out of Baikuntha's property. It appears, Baikuntha filed Title Suit No. 48 of 1977 to declare that he had never adopted the Petitioner & to further declare that the gift deed was a void document. The Trial Court rejected the claim of adoption, but then held that the Petitioner had acquired title by virtue of the gift deed. The said decree was assailed by Baikuntha in Title Appeal No. 20 of 1981. During pendency of the appeal, Baikuntha died & Dillip, Opposite Party No. 1, was substituted. The appeal was allowed & the order passed by the Trial Court regarding validity of the gift deed was set aside. The said decree was assailed by the Petitioner before this Court in Second Appeal No. 112 of 1985. During pendency of the appeal, Agani, wife of Banchanidhi died. Though she was substituted, notice was not made sufficient on her, consequently the Second Appeal was dismissed on 18th June, 2004 & the decree passed by the Appellate Court was confirmed. The Judgment passed by this Qourt was assailed by the Petitioner in the Supreme Court in S.L.P. No. 21994 of 2004. The said Special Leave Petition was also dismissed. It appears, thereafter, Execution Case No. 10 of 1989 has been initiated by Dillip. While the matter stood thus, the Petitioner filed Consolidation Revision No. 512 of 2004. As stated earlier, the said revision having been dismissed, the Petitioner has approached this Court.
6. Learned Counsel for the Petitioner, in course of hearing submitted that the Commissioner on the ground that SLP filed by the Petitioner was dismissed by the Supreme Court, did not entertain his revision. This submission, however, appears to be not correct. In fact, the revision was dismissed mainly on the ground that the Petitioner had not availed the forums available to him under the Act before approaching the revisional authority.
7. The sole basis of the Petitioner's claim over the disputed lands is the registered sale deed said to have been executed by Upendra jointly in favour of the Petitioner & Surendra (Opposite Party No. 2) on 10th March, 1966. It is admitted that the said sale deed had nothing to do with the properties covered in the gift deed. The claim of adoption vis-a-vis the properties bequeathed by virtue of the gift deed belongs to Baikuntha. In Title Appeal No. 20 of 1981 arising out of Title Suit No. 48 of 1977, the Court below had held that Baikuntha had never adopted the Petitioner nor the Petitioner acquired any title by virtue of the gift deed. The said decree had become final. The dispute in the present Writ Petition is however with regard to the properties alienated by Upendra in favour of Jayadev (Petitioner) & Surendra (Opp. Party No. 2) by registered sale deed dated 10th March, 1966 & not with regard to the properties covered under the gift deed. According to the Petitioner, in consonance with the said sale deed, he had acquired valid right, title & interest over the properties. The said assertion is disputed by the Opposite Parties. Be that as it may, in course of hearing, Mr. Parija, Learned Counsel appearing for Hemalata, Opp. Party No. 3 submitted that the sale deed executed by Upendra alienating the entire properties in favour of the Petitioner & Opp. Party No. 2 was illegal & by virtue of such deed, no title was acquired by the Petitioner. According to Mr. Parija, the said sale deed was obtained by practicing fraud & mis-representation & even otherwise, the same will not affect the right of Opp. Party No. 3, the daughter of Upendra. This aspect of the matter was never considered by the consolidation authorities. In course of hearing, it further appears that Hemalata (Opp. Party No. 3) had filed a suit in the Court of Civil Judge (Senior Division), Cuttack & the said suit has been registered as Title Suit No. 83 of 2008 with a prayer to declare the sale deed invalid. In view of the pendency of a civil suit where both questions of fact & law shall be gone into & where it will be finally decided as to whether the registered sale deed executed by Upendra on 10th March, 1966 was void or voidable & as to whether the said sale deed had conferred any title over the Petitioner or not, this Court feels, ends of justice & equity will be better served if this Writ Petition is disposed of with an observation that the records prepared in respect of the properties covered under the sale deed executed by Upendra in favour of the Petitioner would be subject to the result of the decree to be passed in Title Suit No. 83 of 2008 & directs accordingly. Before parting, it is made clear that the question of validity of the sale deed dated 10lh March, 1966 was not raised or decided by the consolidation authorities, even otherwise, the consolidation authorities have no right to set aside any registered deed & the Civil Court alone has jurisdiction to do so. This aspect shall be kept in mind by the Courts below while deciding the Title Suit No. 83 of 2008.