Orissa High Court
Afr Smt. Sailabala Panigrahi vs State Of Odisha And Others …… Opp. … on 5 May, 2026
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.33321 of 2022
(An application under Articles 226 and 227 of the Constitution of India)
---------------
AFR Smt. Sailabala Panigrahi ...... Petitioners
-Versus-
State Of Odisha and Others ...... Opp. Parties
Advocate(s) appeared in this case through virtual mode
For Petitioner : M/s. D. Mahapatra, J. Panigrahi,
Advocates
For Opp. Parties : Mrs. J. Sahoo,
Additional Standing Counsel
Mr. J. Tewari, Advocate
[for O.P. No.5]
Mr. J. Panda, Adv. for intervenor
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
5th May, 2026
SASHIKANTA MISHRA, J.
The petitioner seeks to assail the order dated
03.03.2022 passed by the Sub-Collector, Kandhamal,
Phulbani in Mutation Appeal No.22 of 2021, whereby the
appellate authority has set aside the order dated 05.04.2021
Page 1 of 13
passed by the Tahasildar, Kandhamal in Mutation Case
No.160 of 2021 under which the Record-of-Rights (ROR) had
been prepared in favour of the petitioner.
2. The facts of the case are that the land
appertaining to Plot No.1053/1326 under Khata No.238/347
measuring an area of Ac.0.015 decimals situated in Mouza-
Phulbanisahi originally stood recorded in the name of one
Kishore Chandra Padhi. Out of the said land, an extent of
Ac.0.013 decimals was purchased by Opposite Party No.5 by
means of a registered sale deed dated 06.12.2004 and
possession thereof was delivered in her favour. Subsequently,
the petitioner purchased the remaining extent of Ac.0.002
decimals from Kishore Chandra Padhi by a registered sale
deed dated 26.03.2021 and came into possession of the same.
Pursuant to purchase, the petitioner applied for mutation,
and the Tahasildar, Kandhamal, upon due enquiry, allowed
the mutation in Mutation Case No.160 of 2021 and issued the
ROR in favour of the petitioner. Being aggrieved by the said
order, Opposite Party No.5 preferred Mutation Appeal No.22
of 2021 before the Sub-Collector, Kandhamal, Phulbani
Page 2 of 13
contending that the original vendor had already transferred
the entire extent of land in her favour and had no subsisting
right to execute the subsequent sale deed in favour of the
petitioner. The appellate authority, upon consideration of the
materials on record, allowed the appeal and set aside the
order of mutation in favour of the petitioner by his order
dated 03.03.2022. Said order is under challenge in the
present writ petition.
3. Counter Affidavit has been filed by Opposite
Party No. 5 stating that the original recorded tenant, Kishore
Chandra Padhi had acquired the land measuring Ac.0.013
decimals (66 ft. × 21 ft.) by virtue of a registered sale deed in
the year 1979 and had subsequently sold the entire land in
her favour by means of a registered sale deed dated
06.12.2004. It is further stated that due to an erroneous
entry during settlement operation the land was wrongly
recorded as Ac.0.015 decimals instead of Ac.0.013 decimals
and taking advantage of such incorrect entry, Kishore
Chandra Padhi purportedly sold the excess land measuring
Ac.0.002 decimals to the petitioner though no such land was
Page 3 of 13
actually available. Therefore, it is stated by her that the sale
deed executed in favour of the petitioner is void and the
mutation granted in her favour was illegal for which it was
rightly interfered in appeal.
4. Counter Affidavit has also been filed by the State
(Opposite Party Nos. 3 & 4) stating that the original vendor,
Kishore Chandra Padhi had acquired land measuring
Ac.0.013 decimals and had subsequently sold the entire
extent in favour of Opposite Party No.5 leaving no land
available for further transfer. According to them, the
recording of Ac.0.015 decimals during settlement operation
was erroneous and did not confer any right upon the vendor.
It is also stated that taking advantage of incorrect recording,
the vendor executed a sale deed in favour of the petitioner in
respect of Ac.0.002 decimals, though no such land was
available in reality. It is, however, admitted that the
Tahasildar had allowed the mutation in favour of the
petitioner on the basis of the registered sale deed and in
accordance with the prevailing Government instructions,
without undertaking a detailed enquiry into the title.
Page 4 of 13
5. Heard Ms. D. Mahapatra, learned counsel
appearing for the Petitioner; Mr. J. Tewari, learned counsel
appearing for the Opposite party no. 5; and Mrs. J. Sahoo,
learned Additional Standing Counsel for the State (Opposite
Party No. 3 and 4).
6. Ms. D. Mahapatra would submit that the
impugned order passed by the Sub-Collector is without
jurisdiction and is against the settled principles governing
mutation proceedings. She submits that mutation neither
creates nor extinguishes title and the authority is only
required to ascertain possession on the basis of prima facie
materials. She further submits that the petitioner having
purchased Ac.0.002 decimals by a registered sale deed and
being in possession thereof, the Tahasildar had allowed the
mutation in her favour. She argues that the appellate
authority has exceeded its jurisdiction in adjudicating
disputed questions of title and in holding that the vendor had
no saleable interest which could only be decided by a
competent civil court. She also contends that the appeal
preferred by Opposite Party No.5 was barred by limitation and
Page 5 of 13
the same was entertained and disposed of on the same day
without affording opportunity of hearing to the petitioner,
thereby violating the principles of natural justice.
7. Mr. J. Tewari would submit that the original
vendor, Kishore Chandra Padhi had acquired land measuring
Ac.0.013 decimals (66 ft. × 21 ft.) by virtue of a registered sale
deed in the year 1979 and had subsequently sold the entire
extent of the land in favour of Opposite Party No.5 by
registered sale deed dated 06.12.2004. He submits that once
the entire land had been transferred no land remained with
the vendor for further sale and therefore, the subsequent sale
deed executed in favour of the petitioner in respect of
Ac.0.002 decimals is void ab initio. He further argues that the
recording of Ac.0.015 decimals during the settlement
operation was erroneous and incorrect entry cannot confer
any right upon the vendor to transfer non-existent land. He
also submits that the Tahasildar without verifying the actual
availability of land, simply allowed the mutation in favour of
the petitioner on the basis of the registered sale deed and
Page 6 of 13
therefore, the Sub-Collector, upon proper appreciation of the
materials on record, has rightly set aside the mutation order.
8. Mrs. J. Sahoo would submit that the Tahasildar
had allowed the mutation in favour of the petitioner on the
basis of the registered sale deed and in compliance with the
prevailing Government instructions without entering into the
question of title. She submits that subsequently, on
examination of the records and the earlier transactions, it was
found that the original vendor had already alienated the
entire land in favour of Opposite Party No.5 and, therefore,
had no subsisting right to transfer any further extent of land
to the petitioner. She argues that the Sub-Collector, while
exercising appellate jurisdiction, has taken into consideration
the relevant materials on record and has set aside the
mutation order passed by the Tahasildar.
9. After hearing learned counsel for parties and
upon perusal of the case records this Court finds that it is
well settled that mutation proceedings are summary in nature
and the records so created are meant only for fiscal purposes
for recording possession and do not confer, create or
Page 7 of 13
extinguish title as held in the case of Balwant Singh v.
Daulat Singh1 and followed in subsequent decisions.
10. It would be apt to refer to the recent judgement of
Supreme Court in the case of Jitendra Singh v. State of
M.P.,2 wherein Supreme Court observed as follows-
“7. Right from 1997, the law is very clear. In the case
of Balwant Singh v. Daulat Singh (D) By Lrs., reported
in (1997) 7 SCC 137, this Court had an occasion to
consider the effect of mutation and it is observed and
held that mutation of property in revenue records
neither creates nor extinguishes title to the property
nor has it any presumptive value on title. Such entries
are relevant only for the purpose of collecting land
revenue. Similar view has been expressed in the
series of decisions thereafter.
8. In the case of Suraj Bhan v. Financial
Commissioner, (2007) 6 SCC 186, it is observed and
held by this Court that an entry in revenue records
does not confer title on a person whose name appears
in record-of-rights. Entries in the revenue records or
jamabandi have only “fiscal purpose”, i.e., payment of
land revenue, and no ownership is conferred on the
basis of such entries. It is further observed that so far
as the title of the property is concerned, it can only be
decided by a competent civil court. Similar view has
been expressed in the cases of Suman Verma v.
Union of India, (2004) 12 SCC 58; Faqruddin v.
Tajuddin, (2008) 8 SCC 12; Rajinder Singh v. State of
J&K, (2008) 9 SCC 368; Municipal Corporation,
Aurangabad v. State of Maharashtra, (2015) 16 SCC
689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC
342; Bhimabai Mahadeo Kambekar v. Arthur Import
& Export Co., (2019) 3 SCC 191; Prahlad Pradhan v.
Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v.
Darshan Singh, (2019) 13 SCC 70.”
1
(1997) 7 SCC 137
22021 SCC OnLine SC 802
Page 8 of 13
11. In the present case, it is not in dispute that the
petitioner purchased Ac.0.002 decimals of land by virtue of a
registered sale deed dated 26.03.2021 and on the basis of the
registered document, the Tahasildar allowed the mutation in
her favour. It is also not in dispute that Opposite Party No.5
claims prior purchase of the entire extent of Ac.0.013
decimals from the same vendor in the year 2004.
12. The issue that arises is, whether in a mutation
proceeding, the appellate authority was justified in examining
the question as to if the vendor had any subsisting saleable
interest. In this regard it would be useful to examine the
powers conferred upon the mutation authority. Rule 34 of the
OSS Rules being relevant, is reproduced below:
“34. Grounds on which correction of the
record-of-rights and map is to be made – The
Tahasildar may on application in that behalf of any
person interested or on receipt of a report from any
of his subordinate officers or on receipt of a notice
from the Registrar or Sub-Registrar appointed
under the Indian Registration Act, 1908, or from a
Court or on his own motion, order any charge of
any entry in the record-of-rights according to the
rules hereinafter prescribed on any one or more of
the following grounds, namely
(a) that all persons interested in any entry in the
record-of-rights wish to have it changed;
Page 9 of 13
(b) that by a decree in a civil suit, any entry therein
has been declared to be erroneous,
(c) that being founded on a decree or order of a Civil
Court or on the order of any competent authority,
the entry therein is not accordance with such
decree or order:
(d) that such decree or order has subsequently
been varied on appeal, revision or review;
(e) that any entry therein has no relationship with
the existing facts; and
(f) that by preparation of a survey record under
Chapter II of the Act, any change is necessitated in
the record-of-rights.”
Rule 35 being also relevant is reproduced below:
“35. Registration of proceedings – All
proceedings commenced on a report, application or
otherwise under this Chapter shall be registered as
mutation cases and each such case shall be
numbered and entered in register in Form No.8 to
be called the Mutation Register:
Provided that changes in any entry of the record-of-
rights arising out of an order to decree of Revenue
or a Civil Court or the order of a Tribunal
constituted under any law for the time being in
force shall be numbered and entered in the
Register as separate cases and carried out by the
Tahasildar immediately on receipt of such order or
decree, as the case may be, and it shall not be
necessary to commence a Mutation Proceeding for
that purpose.”
[ Emphasis added]
It is thus, evident that the correction of record of
rights and map can be made only on the grounds enumerated
in Rule 34.
Page 10 of 13
13. In the considered view of this Court, Rule 34 lays
down the boundary within which mutation authority is to
exercise his functions. Further, Rule-41 expressly mentions
that mutation application is to be heard in a summary
manner. It is well settled that the appeal is a continuation of
the original proceeding. Therefore, the powers of the appellate
authority are also circumscribed by the powers expressly
provided to the original authority. In other words, the
appellate authority is to examine the order passed under
Rule-41 but in doing so, it cannot exceed the boundaries
prescribed under Rule-34. None of the provisions confer any
power on the original authority or the appellate authority to
go beyond the four corners of Rule-34 much less to decide
other questions including that of title.
14. The question as to whether the vendor had already
transferred the entire land in favour of Opposite Party No.5
and whether any land was available for subsequent sale to
the petitioner are actually disputed questions and cannot
therefore, be decided in mutation proceeding or appeal arising
Page 11 of 13
therefrom. These can only be adjudicated by a competent
Civil Court upon appreciation of evidence.
15. In the present case, the Sub-Collector while
exercising appellate jurisdiction has gone into the question of
correctness of the earlier transactions and has recorded a
finding that no land was available with the vendor for sale to
the petitioner. Such finding, in the considered view of this
Court, amounts to adjudication of title, which is beyond the
jurisdiction of the mutation authorities.
16. Certain other points were urged to challenge the
impugned order but this Court having already held that the
appellate authority exceeded his jurisdiction, the impugned
order becomes unsustainable on such score alone. As such, it
is felt unnecessary to go into such question.
17. For the foregoing reasons therefore, the writ
application is allowed. The impugned order dated 03.03.2022
passed by the Sub-Collector, Kandhamal, Phulbani in
Mutation Appeal No.22 of 2021 is hereby set aside.
18. It is, however, made clear that this Court has not
expressed any opinion on the merits of the rival claims of the
Page 12 of 13
parties with regard to the title over the land in question. The
parties are at liberty to approach the competent civil court for
adjudication of their respective rights, if so advised.
…………………………
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 5th May, 2026/ A.K. Rana, P.A.
Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: P.A.
Reason: Authentication
Location: High Court of Orissa, Cuttack Page 13 of 13
Date: 06-May-2026 10:53:50
[ad_1]
Source link
