I. Mahanty, J.@mdashThe Petitioners in this writ application have sought to challenge a common order passed by the Commissioner, Consolidation, Board of Revenue, Orissa, Cuttack, dated 9th February, 2004 passed in Revision Case Nos. 163, 164, 167 and 168 of 2003, confirming the order passed by the Deputy Director, Consolidation, Kendrapara, in Appeal Case Nos. 76, 77, 78 and 79 of 2002 filed u/s 12 of the O.C.H. and P.F.L. Act, 1972 in which direction had been issued by the said Deputy Director to record the disputed land situated in village Beltal, P.S. Pattamundai in the district of Kendrapara, L.R. Khata No. 1143, L.R. Plot No. 1963/3644, area Ac. 0.010 decimal corresponding to Hal Khata No. 1368, Hal Plot No. 2022/3596 area Ac. 0.010 decimal and further corresponding to part of Sabik Plot No. 1086, in the names of the opp. parties 1 to 4.
2. The facts leading to the present challenge are that the present Petitioner Nos. 1 and 2 are the wife and daughter of late Sanjay Kumar Sahoo. The said Sanjay Kumar Sahoo had purchased the disputed property from opp. party No. 5-Rama Krushna Panda. The property consisted of an area Ac. 0.010 decimal having pucca house over the same and it is further averred that one Rama Krushna Panda had executed a sale deed on 19.8.2000 in favour of Sanjay Kumar Sahoo and the said deed was registered on 10.11.2000. Upon the demise of late Sanjay Kumar Sahoo, both the present Petitioners (being wife and daughter of late Sanjay Kumar Sahoo) filed Objection Case No. 753 of 2001 before the Consolidation Officer, Pattamundai for recording their names in the land records in respect of the disputed land, in view of the fact that they were the only successors in interest of late Sanjay Kumar Sahoo. Opp. parties 1 to 4 also filed Objection Case No. 754/2001 before the same Consolidation Officer to record the disputed land in their favour on the strength of a registered sale deed No. 1532 dated 18.9.2000. Both the aforesaid Objection Cases, i.e., Objection Case No. 753/2001 filed by the present Petitioners and Objection Case No. 754/2001 filed by the opp. party Nos. 1 to 4 were heard together and disposed of by the Consolidation Officer, by a common judgment dated 20.3.2002 under Annexure-1 with the following conclusion.
I have perused all the documents placed before me and I have heard the arguments led by the learned Counsel for all the parties. Admittedly the suit land appertaining to plot No. 1963/3644 Ac. 0.010 corresponding to sabik plot No. 1086 (p) of vill-Beltal stands recorded in the name of Rama Krushna Panda s/o late Raghunath Panda of vill-Pattamundai. The said Ramakrushna has executed two sale deeds in respect of the above suit lands, one executed on 19.8.2000 in favour of Sanjay Kumar Sahu s/o Jayaram Sahu of village Sandhapalli and registered on 10.11.2000 and the other was executed on 18.9.2000 in favour of Golakha Chandra Sahu and Ors. and was registered on the same day. From the above discussions made by both the parties and the documents placed before me it is clear that the matter is purely of civil nature. Since the consolidation Court is to deal with the matter in a summary manner, it is difficult to examine the positions in thread bare within a limited time. The persons who have sworn in the affidavits were not tested in accordance with law. So it is difficult to determine the position of title on the basis of affidavit. The civil Court is purely competent to deal with the matter relating to title whom it has passed by taking evidence such as oral and documentary. Therefore, the parties are directed to take shelter in Civil Court to adjudicate the matter.
In the result both the objection cases are dropped. The L.R. record shall remain intact as before. Oriya order follows (Oriya portion of the order is translated into English):
1. Appeal Case Nos. 753/2001 and 754/2001 are dropped.
2. The L.R. shall remain intact as before.
3. Being aggrieved by the aforesaid order the present Petitioners as well as opp. parties 1 to 4 filed appeals before the Deputy Director, Consolidation, Kendrapara, which were registered as Appeal Case Nos. 76, 77, 78 and 79 of 2002 which were heard analogously and disposed of by a and came to an end by a common judgment dated 30.4.2003 under Annexure-2. The Deputy Director on consideration of the rival arguments on the validity of the sale deed executed in favour of Sanjay Kumar Sahoo and on analyzing various aspects came to conclude as follows:
The above analysis of facts, raises strong suspicion as to the date of execution of sale deed in favour of Sanjay Kumar Sahoo.
In the above view of the matter it can be safely concluded that sale deed executed by Rama Kurushna on 19.8.2000 in favour of Sanjay Kumar Sahoo does not hold good.
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In view of discussion made as above and orders passed by learned Consolidation Officer in O/C. No. 753/2001 and 754/2001 are hereby set aside and it is ordered to record the suit land in favour of Golakh Ch. Sahoo and Ors. , the applicants ion appeal case No. 78/02 and 79/02 exclusively.
In the result appeal case No. 76/02 and 77/02 disallowed and appeal case No. 78/02 and 79/02 are allowed.
Pronounced order in the open Court today the 30th day of April, 2003.
Sd/ - G. Panda
Deputy Director,
Kendrapara
4. Thereafter, the present Petitioners filed Revision Case Nos. 163, 164, 167 and 168 of 2003 in the Court of the Commissioner, Consolidation, Board of Revenue, Orissa, Cuttack and the same were disposed of by a common judgment dated 9th February, 2004 under Annexure-3 and the learned Commissioner concurred with the view expressed by the Deputy Director of Consolidation in appeals and concluded as follows:
.... Previously I have already held that the deed in favour of the Petitioner was not at all executed on 19.8.2000. Even if it is accepted that the deed was executed on 19.8.2000, it is not registered till the disputed land was transferred in favour of the O.Ps. on 18.9.2000 through registered sale deed. It is provided in the statute that an unregistered document cannot convey any title in favour of the transferee if the consideration money more than Rs. 100/ -. Obviously from 19.8.2000 to 18.9.2000 the deed allegedly executed on 19.8.2000 was not registered for the disputed land with the consideration amount of more than rupees one lakh and therefore no title has passed to the Petitioners through an unregistered document allegedly executed on 18.9.2000.The land was transferred in favour of the O.Ps. through sale deed executed and registered on the same date on 18.9.2000. Therefore through such a registered deed the title of the disputed land has passed validly in favour of the O.Ps. and there is no title left with the transferrer Rama Krushna Panda, the O.P. 5 to alienate it in favour of the Petitioners subsequently. Moreover after execution of the deed on 19.8.2000 in favour of the Petitioner it was registered on 10.11.2000 and on that date the consideration amount was also paid. During this period as the document was without registration after its execution on 19.8.2000 it had conveyed no title at all in favour of the Petitioners since in between the period from 19.8.2000 to 10.11.2000 the title of the disputed land has already been passed to O.Ps. on 18.9.2000 there is no title with the transferrer Ramakrushna Panda to alienate in favour of the Petitioners on 10.11.2000. Therefore, in any view of the matter the registered sale deed executed on 10.11.2000 in favour of the Petitioners is void ab initio and has not conveyed any title to the Petitioners.
In the above premises the revisions all do fail and hence are dismissed. The impugned order of the appellate authority is upheld.
Pronounced the order in the open Court today.
Sd/ -
Commissioner, Consolidation,
Orissa, Cuttack.
5. Dr. Sujata Dash, learned Counsel for the Petitioners advanced various contentions challenging the impugned order under Annexure-1, 2 and 3 and submitted that the Courts below have misapplied the law on the subject and that the Consolidation authorities have no right or jurisdiction to decide a dispute or a question as to whether the registered sale deed relied upon by the Petitioners to establish their rights over the disputed land, is a void document or not. In this respect, she submitted that it is only the civil Courts that have the jurisdiction to decide such an issue and, therefore, the findings of the Deputy Director of Consolidation in appeals and that of the Commissioner of Consolidation in revisions are wholly without jurisdiction and based on mere surmises and conjectures. It is further contended on behalf of the Petitioners that it is a well settled proposition of law, that legal effect of a document cannot be taken away without setting aside the same and it cannot be treated to be void, but would at best be a voidable document.
6. On the other hand, Mr. Prahalad Kar, learned Counsel appearing for opp. parties to 1 to 4 strongly contended that since there exists concurrent finding of fact both by the Dy. Director of Consolidation as well as the Commissioner of Consolidation, a Writ Court ought not to interfere with such findings of fact or go into assessing the correctness of fact. Mr. Kar further contended that the present Petitioners having accepted the jurisdiction of the Consolidation authorities and having filed the appeals and revisions under the Act cannot be permitted to resile therefrom and a question of lack of jurisdiction cannot be raised as a fresh point before a Writ Court.
7. I have perused the impugned orders under Annexure-1, 2 and 3 passed by the Consolidation Officer, Dy. Director of Consolidation and the Commissioner of Consolidation. The dispute raised in the present case revolves around limited facts. Whereas on one hand the Petitioners claim that the sale deed was executed in favour of late Sanjay Kumar Sahoo on 19.8.2000 but registered on 10.11.2000, yet they submitted that it would take effect from the date of its execution, even if the registration took place at a later date, i.e., 19.8.2000. On the other hand, the opp. parties 1 to 4 contend that the registered sale deed in their favour was executed and registered on 18.9.2000 and, therefore, the said sale deed in their favour having been registered before 10.11.2000, i.e., prior to the date of registration of the Petitioners'' sale deed, there deed must be accepted to be a prior sale deed.
8. Learned Counsel for the Petitioners placed reliance upon Sections 23 and 47 of the Registration Act, 1908 which are quoted hereunder:
Section 23 - Time for presenting documents: Subject to the provisions contained in Sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution.
Provided that a copy of a decree or order may be presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final.
Section 47: Time from which registered document operates: A registered document shall operate from the time which it would have commended to operate if no registration thereof had been required or made, and not from the time of its registration.
9. Dr. Dash placing reliance on the aforesaid two provisions of the Registration Act, 1908, contended that whereas on the one hand in terms of Section 47 a registered document will operate from the time it would have commenced and not from time of its registration, Section 23 permits registration of a sale deed within four months from the date of its execution and the registered sale deed in favour of the Petitioners having been registered within the period prescribed u/s 23, although registered at a later date, i.e. on 10.11.2000 in terms of the statute, the date of execution shall for all purposes be deemed to be 19.8.2000. On th other hand, Mr. Kar contended that passing of title is dependant on passing of consideration paid and, therefore, unless consideration is paid, title does not pass and in the present case, since the said consideration is stated to have been paid by the Petitioners, only on the date of registration, i.e., 10.11.2000 before the Sub-Registrar, although the sale deed in favour of the Petitioners claims to have been executed on 19.8.2000, 10.11.2000 will be the date on which title, if any, could be said to have been passed and not at any earlier point of time. Apart from that, Mr. Kar placed strong reliance upon the findings arrived at by the Dy. Director of Consolidation under Annexure-2 vis-a-vis the registered sale deed in favour of the Petitioners and stated that the sale deed relied on by the Petitioners being a fabricated document no reliance on the same can be placed.
10. The lower Court records having been produced in course of hearing in this case. The most important point herein to take note of is the evidence of opp. party No. 5-Rama Krushna Panda, the admitted prior owner of the land and the vender in both the competing sale deeds, i.e., the sale deed effected in favour of the Petitioners as well as the sale deed effected in favour of opp. parties 1 to 4. Said Shri Panda has been examined during the hearing of the Objection Case before the Consolidation Officer and his evidence being extremely important (the Oriya portion of the evidence is translated into English) is quoted hereunder:
I Shri Rama Krushna Panda S/o. Raghunath Panda, at Pattamundai, know about this disputed property. This property is under Mouza- Beltal, Sabik (old) Khata No. 628 and Sabik (old) Plot No. 1086 measuring Ac. 0.01 decimal. According to the present (Hal) consolidated land register. This has been recorded as Plot No. 1963/3644 Ac. 0.101 decimal. This plot is having one room of pucca building. For the last eight years I have been giving possession in of this building on rental basis to Sanjay Kumar Sahoo, S/o. Jayiram Sahoo of Sandhapili for the purpose of carrying on business and till today he has been continuing cloth business on this plot. Meanwhile, having no alternative and due to excessive need of money for the purpose of marriage of my daughter and to purchase a new land elsewhere I had executed a sale deed in the name of Sanjay Kumar Sahoo on dt. 19.8.2000 for this room along with this plot. At that point of time Sanjay Kumar Sahoo took his father immediately to Cuttack Medical for treatment, who suddenly fell down and became serious and retained there for some days. As a result, registration could not be done on that day and later it was completed on 10.11.2000. After receiving the entire amount of agreement towards the sale of this land from Sanjay Kumar Sahoo, I have transferred him the entire ownership of the land. I have neither sold nor pledged this property to any one ever before. As Sanjay Kumar Sahoo has died since eleven months, his legal heirs, wife and daughter, are in possession of this land and they are carrying their cloth business. Therefore, due to the death of Sanjay Kumar Sahoo, if this is recorded in the name of his wife Simamayee Gurubala and daughter Sushri Subhasmita as his successors, I and on behalf of any member of my family have no right and objection that I declare.
I declare this statement swearing in the name of God and this statement is true to my belief.
11. From the aforesaid narration of facts and rival contentions, it is abundantly clear that the dispute between the two parties and the rights claimed by them flow from two separate registered sale deeds in respect of the self-same suit land. The Consolidation Officer while taking note of these facts came to the conclusion that the documents placed before him clearly indicated that the matter was purely civil in nature and since the Consolidation Court was to deal with the matter in summary manner and that the persons who had sworn affidavits were not tested in accordance with law, it was beyond it jurisdiction/competence to determine the position of title on the basis of affidavits. Therefore, he noted that "Civil Court is clearly competent to deal with the matter relating to title when it has passed by taking evidence such as oral or documentary. Therefore, parties are directed to take shelter in Civil Court to adjudicate the matter". In this respect, it would be important to take note of a decision our High Court in Rama Chandra Bal and Anr. v. Suresh Chandra Nayak and Ors. 1988 (1) OLR 185. This judgment has been referred to and relied upon in a subsequent judgment of this Hon''ble Court in Hemamani Swain and Ors. v. Kulamani Swain and Ors. reported in 1991 (1) OLR 377; relevant portion of which is quoted hereunder:
The position has thus been made clear that where the document is one which is ab initio void, say for example as was in the case before the Supreme Court, executed by a person without having competence to execute it, either wholly or partly, the consolidation authorities would have undoubtedly the power to decide the question of its invalidity on that count and may for the purpose adjudicate upon the contented rights of the parties in deciding such rights, when they come to the conclusion that a document has been executed by a person who had no authority to execute the same and hence being a void document needs no cancellation by a competent Court, they have to proceed to adjudicate the right, title or interest of the parties in respect of the land as being the designated authorities under the statute for the purpose. The other example of such type of documents would be where a document has been executed admittedly by a minor or an unregistered document where registration is necessary or other similar class of documents. But save only such documents, if the documents are such which are to be actually cancelled so as to nullify or wipe out their effect, say for example, where the execution of the document is admitted but challenged on the ground of having been obtained by fraud or as a sale without consideration, or other similar documents, the jurisdiction is that of the Civil Court to pronounce upon their invalidity and cannot be encroached upon the consolidation authorities.
12. While taking into consideration the facts of the present case and the rival stand of both the contesting parties as well as the dictum of the Hon''ble Court as noted herein above, I am of the view that since the right, title and interest of both the parties emanate from two registered sale deeds which are "voidable" documents and not void ab initio, determination of right title and interest relating to or flowing out of such documents and matters arising therefrom have to be left to the care of the civil Courts. I am further of the view that the observation made in appeal by the Dy. Director wherein on the basis of "strong suspicion" the Dy. Director, has held that the sale deed in favour of Sanjay Kujar Sahoo "does not hold good" and the further observation in the revisions, the Commissioner has held: "this circumstantial evidence led me to believe that opp. party No. 5 has not executed the sale deed in favour of the Sanjay Kumar Sahoo on 19.8.2000". I am constrained to observe that neither suspicion nor circumstantial evidence is adequate for declaring a registered sale deed to be in operative or void in law. It is a well settled proposition of law that a registered sale deed is a "voidable" document, subject to challenge before the appropriate civil Court and without a final determination of the same by a competent civil Court, no such registered sale deed can be held to be inoperative nor void, no matter how strong the circumstantial evidence or suspicion may be.
13. In conclusion, I am of the view that Annexure-2, 3, i.e., the orders passed in appeals by the Dy. Director Consolidation and passed in revisions by the Commissioner of Consolidation are wholly without jurisdiction, and, therefore, I quash the same and, at the same time, affirm the order passed by Consolidation Officer under Annexure-1. It is open to the parties in dispute to seek adjudication of their right flowing from their respective registered sale deed before the appropriate civil Court.
14. The writ application is allowed to the extent noted above. In view of the fact that the writ application is disposed of on the point of jurisdiction discussed herein above, I refrain from noting the contentions of the rival parties in detail as well as the various citations relied upon by them lest the same may prejudice either party and nothing stated by me in this judgment shall be construed as having expressed any opinion on the merits of the rival case that the disputed land shall not be recorded either in the name of the Petitioners or opp. parties 1 to 4 until a competent civil Court declare the rights of either party to the same and both the parties are at liberty to seek interim directions from the competent civil Court.
The writ application is partly allowed to the extent indicated herein above. No costs.
