A single writ petition seeking to quash two different orders passed in two different proceedings cannot be maintainable: Cuttack High Court

 IN THE HIGH COURT OF ORISSA AT CUTTACK O.J.C. No.109099 Hajaru Mahakurversus Petitioners Pitambar Pradhan and others Opp. Parties Advocates appeared in this case: For Petitioners : Mr. Budhiram Das Advocate For Opposite Parties : Mr. U.C. Panda Advocate CORAM : MR. JUSTICE K.R. MOHAPATRA Mr. Dillip Kumar Mishra Additional Government Advocate 01.09.2021 1. This matter is taken up through hybrid mode. The Petitioners in this writ petition seek to assail the order 2. dated 15th December 1998 passed by the Joint Commissioner Settlement and Consolidation Sambalpur Opposite Party No.4 in Revision Case No.3 of 1996 filed by the Opposite Party No.1 under Section 36 of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act 1972 of the Consolidation Act to record the land exclusively in his name on the basis of deed of acknowledgement of adoption allowed the consolidation appeal filed by Hajaru accepting his adoption by Manglu Mahakur and his wife Pira. Thus the Opposite Party No.1 being aggrieved filed Revision Case No.96 which came to be disposed of on 15th December 1998 allowing the said revision holding that Hajaru failed to establish his adoption by proving giving and taking ceremony. Further the deed of acknowledgement of adoption was subsequently cancelled by Manglu Mahakur and a deed of adoption in favour of Opposite Party No.1 was executed. Thus the appellate forum committed error in holding Hajaru to be the adopted son of Mangulu. Assailing the said order this writ petition has been filed. It is submitted by Mr. Das learned counsel for the Petitioners that three objection cases being disposed of by one order a single appeal is maintainable. In support of his case he relied upon the case law in the case of Ekantika Copiers Ltd. v Collector of Central Excise reported in 1991 ELT 350 and Commissioner of Income Tax West Bengal v Rupa Traders reported in 118 ITR 412. It is his contention that when objection cases filed by Hajaru and Opposite Party No.1 were tagged together and a common order was passed the substance as well as the form of the order being one can be assailed in a solitary appeal. Further the said issue was neither raised before the appellate court nor before the revisional court by the Opposite Party No.1. Since the Opposite Party No.1 had filed one revision in Revision Case No.96 this writ petition is maintainable. It is his submission that since Annexure 1 was executed on 4th February 1963 O.J.C. No.109099 4 acknowledging the adoption of Hajaru and was registered on the next day i.e. on 5th February 1963 the same does not need any formal proof as the adoption was an ancient one. He further submits that Section 16 of the Hindu Adoptions and Maintenance Act 1956also takes within its ambit the deed of acknowledgement of adoption. That being a registered one there is a presumption of valid adoption unless it is disproved. Thus strict proof of adoption of Hajaru by Mangulu and Pira is not required under law as there is recital of giving and taking ceremony in the deed of acknowledgement itself. In support of his case he relied upon the decision in the case of Bhajandas v Nanuram reported in AIR 1954 Raj. 17 wherein it has been held at paragraph 4 as follows: “4. The next point that is urged is that in view of what we have said in our judgment dated 18th November 1952 the suit may be remanded for giving an opportunity to the appellant to prove that there was no giving and taking in adoption. In this connection we may refer to a part of our previous judgment which runs as follows:— “In our opinion in Marwar where the deed itself mentions that the boy had been given and received in adoption and nothing is shown whereby it may be inferred that the physical act could not take place as mentioned in the deed a presumption does arise that the recitals in the deed have been truly made since when a person goes to the length of sending for a scribe and executing the document and getting it registered there is nothing to prevent him from performing the actual physical act of giving and taking. But if any party to the litigation can prove circumstances which would show that the physical act of giving and taking could not have been performed as recited in the deed of adoption then it would be for the party setting up the adoption to prove by positive evidence that the physical act of giving and taking had taken place. In other words it would be for the party challenging the adoption evidenced by a registered deed to plead specifically that the physical act of giving and taking had not been performed and also to the particular circumstances which would negative the presumption as to recitals being correct and thereafter to lead evidence which would show that the O.J.C. No.109099 5 physical act could not have taken place as mentioned in the deed and then the party relying on adoption is to prove by positive evidence that the physical act of giving and taking did take place.” In that view of the matter he prays for setting aside the impugned order under Annexure 6 and to direct the Consolidation Officer to record the case land in the name of the Petitioners exclusively on the basis of the deed of acknowledgement of adoption under Annexure 1. Mr. Panda learned counsel for Opposite Party No.1 vehemently objected to the same. It is his submission that since the deed of acknowledgement of adoption under Annexure 1 was not signed by the natural parents the same cannot attract the presumption under Section 16 of the Act. In support of his case he relied upon the decision of the Hon’ble Supreme Court in the case of Ghisalal v Dhapubaiby Lrs. and others reported in AIR 2011 SC 644. He further contended that deed of acknowledgement of adoption under Annexure 1 is also hit by Section 10(1)(iv) of the Act as the age of Hajaru was more than 15 years at the time of execution of such deed. He further submits that the question of voidability of the deed can only be adjudicated by a competent civil court and not by the Consolidation Authority having limited jurisdiction. On the other hand the registered deed of adoption in favour of Opposite Party No.1 is a valid one and the adoption is presumed to be valid in view of Section 16 of the Act. The Consolidation Officer as well as revisional court consideration these material aspects passed the impugned order. As such the same needs no interference. Mr. Mishra learned Additional Government Advocate for the State also reiterated the submission of Mr. Panda learned counsel for the O.J.C. No.109099 7. Taking into consideration the rival contentions of learned 6 Opposite Party No.1 and contended that since Hajaru has not proved the factum of giving and taking ceremony his adoption is a questionable one and can only be adjudicated by the competent civil court. He further submits that the plea of ancient adoption taken by Mr. Das learned counsel for the Petitioners is not sustainable in the eyes of law as the deed of acknowledgement of adoption does not by itself prove the factum of adoption more particularly when the same had already been cancelled by a registered deed of cancellation under Annexure 2. He therefore prays for dismissal of the writ petition. counsel for the parties and on perusal of record this Court finds that admittedly there is a registered deed under Annexure 1 executed on 4th February 1963 which was registered on 5th February 1963. Although Mr. Das learned counsel for the Petitioners describes it to be a ‘deed of acknowledgement of adoption’ but the deed itself reveals that it is a ‘deed of adoption’. Further the date of adoption is conveniently withheld in the said deed. It however reveals from the recitals of the said deed under Annexure 1 that it was executed in acknowledgement of earlier adoption. The said deed under Annexure 1 came to be cancelled by executing registered deed on 19th February 1982 has no application to the case at hand because it relates to a deed of adoption and not acknowledgement of adoption. On the other hand the registered deed of adoption in respect of the Opposite Party No.1 is a registered one. Thus in view of Section 16 of the Act a presumption of valid adoption is attached to it unless it is disproved in accordance with law. This Court in the case of Nityananda Panigrahi and others v Commissioner of Consolidation Orissa Sambalpur and others reported in 1994OLR 214 held at paragraphs 5 and 6 as follows: “5. A similar question came up for consideration before a Bench of this Court in the case of Titagarh Paper Mills Co. Ltd. v. State of Orissaand this Court held that a single writ petition seeking to quash two different orders passed in two different proceedings cannot be maintained. In coming to the aforesaid conclusion the Bench of this Court had relied upon the earlier decision of the Patna High Court in A.I.R. 1958 Patna 653 and Allahabad High Court in A.I.R. 1965 Allahabad 517. 6. In the Patna case their Lordships had observed:— “Separate applications must be made for issue of separate writs to quash separate orders otherwise on one application if it succeeds several separate writs will have to be issued and that will lead to an absurd position.” True it is that Hajaru had filed one appeal before the Deputy Director Consolidation of Holdings Bolangir against the common order passed in three objection cases i.e. two filed by him and one by Opposite Party No.1. But no objection with regard to maintainability of O.J.C. No.109099 8 one appeal against a common order passed in three objection cases was raised by the Opposite Party No.1 before the Deputy Director Consolidation of Holdings Bolangir. Assailing the order passed in Consolidation Appeal No.53 of 1995 the Opposite Party No.1 filed Revision Case No.96 under Section 36 of the Consolidation Act. Hence the factual position in this case is slightly different from the aforesaid case law. In view of the above I am of the considered opinion that this writ petition is maintainable. But the Petitioners having not proved the giving and taking ceremony of adoption in accordance with law I am constrained to hold that the registered deed under Annexure 1 is questionable. Again the validity of the registered deed of cancellation can only be gone into by the competent civil court and till it is held to be void it cannot be ignored. On the other hand the registered deed of adoption in favour of the Opposite Party No.1 attaches a presumption of valid adoption in view of Section 16 of the Act as the same has not yet been disproved in accordance with law. Accordingly I find no infirmity in the impugned order under Annexure 6. Thus the writ petition being devoid of any merit stands dismissed. 12. L.C.R. be sent back to the concerned court immediately. The interim order dated 15th October 1999 passed in Misc. Case No. 100299 stands vacated. … Judge Orissaa High Court Cuttack Dated 1st September 2021 jm O.J.C. No.109099 

Summary: A separate application ought to be made for the issue of separate writs to quash the separate orders. Otherwise on one application if it did succeed, several separate writs would have to be issued and that would lead to an absurd position. Thereby, the writ petition being devoid of any merit stood to be dismissed as held by the Hon’ble Cuttack High Court before the Hon’ble Mr. Justice K.R. Mohapatra in the matter of Hajaru Mahakur v. Pitambar Pradhan and others [O.J.C. No.10903 of 1999]. Facts of the case relate to the Writ petition filed under Article 227 of the Indian Constitution, wherein the petitioner was the recorded tenant. Petitioner and his wife executed a registered deed of acknowledgment an adoption No-1 on 5th February 1963 as same on 19th February 1982 the petitioner canceled the said registered deed of adoption. Again, the petitioner executed a deed of adoption in favor of Adoption No-2(Opposite party). The land register under Section 6 of the Consolidation Act was prepared in the name of the petitioner’s wife and the opposite party. The Opposite party filed one objection clause to record and, in Adopted 2nd son name, exclusively. The Consolidating officer recorded the case land exclusively in the adopted 2nd son’s name. The deed of acknowledgment of Adoption No-2 was canceled and the deed of adoption in favor of opposite Party No- 1 was executed. Thus, the appellate forum committed an error in holding to the adopted son. Assailing the said order, such writ petition had been filed. Section 16 of the Hindu Adoptions and Maintenance Act, 1956 takes within the ambit the deed of acknowledgment of adoption. There being a registered one, there arose a presumption of valid adoption unless it has been disproved. Thus, strict proof of adoption was not required under law as there was the presence of a recital of giving and taking ceremony in the deed of acknowledgment itself. It was further submitted that the deed of acknowledgment of adoption was not signed by the natural parents; the same could not attract the presumption under Section 16 of the Act. The validity of the registered deed of cancellation could only be in the competent civil court and till then its void. The Hon’ble Court said that the petitioner could not prove the giving and taking ceremony of adoption in accordance with law and the registered deed was found to be questionable. On the other hand, the registered deed of Adoption No-1 attached a “presumption of valid adoption in view of Section 16 of the Act and as the same has not been disproven in accordance with law. Registration deed of the adoption document is in favor of attaining presumption of valid adoption and cannot be quashed by law.”