Keshab Chandra Beura vs Punanada Beura And Others

Dr. A.K. Rath, J

This petition challenges the order dated 31.08.2018 passed by the learned Civil Judge (Sr. Divn.), Kendrapara in I.A. No.25/74 (F.D.), wherein the

learned trial court has rejected the application of the defendant no.12, petitioner herein, to drop the final decree proceeding.

This case has a chequered history. Plaintiffs-opposite party nos.1 to 3 instituted T.S. No.27 of 1974 (F.D.) for partition in the court of the learned

Civil Judge (Sr. Divn.), Kendrapara. The suit having been decreed, the defendant no.1 filed First Appeal No.1 of 1977 before this Court. The first

appeal was partly allowed on 12.1.1988. It was held that the properties described under Lot Nos.2,3,4,5,9 and 14 covered under Exts.A to F as well as

Lot No.8 of schedule ‘Kha’ have to be excluded from the purview of partition, being the self-acquired properties of defendant no.1. Similarly

the pump set described in schedule ‘Ga’ has to be excluded from the purview of partition, the same being held to be the self-acquired property

of defendant no.1. The judgment and decree of the learned trial court to that extent was reversed and in respect of other properties were affirmed.

Felt aggrieved, the plaintiffs filed AHO No.7 of 1988 before this Court, which was eventually dismissed on 22.09.1993. While the matter stood thus,

the plaintiffs filed a petition before the court below to make the preliminary decree final. The defendant no.12, petitioner herein, filed an application for

abatement of the final decree proceeding. It was stated that the consolidation operation in the area, wherein the land falls, has started. In view of

Sec.51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (“OCH & PFL Actâ€), the final decree may

be dropped. An ancillary prayer has been made to exclude Lot Nos.18 to 20 of the suit property from the purview of partition during final decree

proceeding. Learned trial court has rejected the same.

Mr. S.S.K. Nayak, learned Advocate for the petitioner, submits that during pendency of the final decree proceeding, the suit land came under the

purview of the consolidation operation. In view of the same, the final decree proceeding shall abate. He further submits that Lot Nos.18 to 20 should

be excluded from the purview of partition.

Before adverting to the contention raised by the counsel for the petitioner, it will necessary to set out the provisions of the OCH & PFL Act. Sub-

sec.(4) of Sec.4 and Sec.51 of the OCH & PFL Act are quoted hereunder.

“(4) Every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceedings could be or

ought to be started under this Act, which is pending before any Civil Court, whether of the first instance or appeal reference or revision shall, on an order being

passed in that behalf by the Court before which such suit or proceeding is pending stand abated.

xxx xxx xxx

Bar of jurisdiction of Civil Courtsâ€"Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions contained in

Clause (3) of Sec.4 and Sub-sec.(1) of Sec.7:

(1) all questions relating to right, title, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction of Revenue Courts or

authorities under any local law for the time being in force, shall be decided under the provisions of this Act by the appropriate authority during the consolidation

operations; and

(2) no Civil Court shall entertain any suit or proceedings in respect of any matter which an officer or authority empowered under this Act is competent to decide.â€​

In SRINIBAS JENA AND OTHERS VS. JANARDAN JENA AND OTHERS, AIR 1981 Ori.1, Sec.4(4) of the OCH & PFL Act was the

subject matter of consideration. During pendency of the appeal, the lands in dispute came under the consolidation operations on the publication of a

notification issued under sub-sec.(1) of Sec.3 of the OCH & PFL Act. On 19.10.79, the appellants filed a petition for an order of abatement of the

appeal under Sec.4(4) of the OCH & PFL Act. The prayer was resisted by the respondents on the grounds that a final decree proceeding is not

covered under Sec.4(4) of the OCH & PFL Act and that the rights of the parties having already been declared by a preliminary decree, there could

be no abatement of the suit. A Division Bench of this Court referred the matter to the Full Bench for decision on the question of abatement. The main

question for consideration before the Full Bench was as to whether an appeal against a final decree can abate under Sec.4(4) of the OCH & PFL Act

upon publication of the notification issued under Sec.3(1) of the said Act. The Full Bench held that a final decree proceeding cannot be considered to

be either a suit or a proceeding of the nature contemplated by that provision. The language used by the legislature is “a suit or proceeding for

declaration of right or interest in land.†The use of the preposition “for†is significant. It signifies that declaration of right or interest in land must

be directly involved in the suit or proceeding. Declaration of right or interest in land is not directly involved in a final decree proceeding. It was further

held that a final decree proceeding does not originate in itself, but follows a preliminary decree passed in a suit. The final decree proceedings start only

after determination of the rights and interests of the parties in relation to land. Under the provisions of Order 20, Rule 18 C.P.C., the preliminary

decree declares the rights of the parties interested in the property. The final decree proceeding is to enforce what has already been decided, which

may even mean that it excludes declaration of right and interest in land which has already been declared by the preliminary decree. The final decree

proceedings only relate to matters which are provided in the preliminary decree as to physical division or as to an account for mesne profits, but do not

relate to the decision of any substantive rights of the parties as to title to properties. Taking a cue from the Full Bench decision of the Calcutta High

Court in the case of TALEB ALI VS. ABDUL AZIZ, AIR 1929 Cal.-689, it was held that the function of the final decree is merely to re-state and

apply with precision what the preliminary decree has ordained and that the final decree is not only based on but is also controlled by the preliminary

decree and cannot travel beyond it. The word “appeal†which has been used in Sec.4(4) of the OCH & PFL Act obviously does not include an

appeal arising out of a final decree as the same does not declare the right or interest of the parties, but is concerned only with certain matter pertaining

to what has already been declared. Pendency of appeal against the final decree cannot take away finality of the preliminary decree which had

determined the right, title and interest of the parties. If the preliminary decree had become final and conclusive, it is not open to the consolidation

authorities to reopen the matter and come to a different conclusion. The legislature never intended to deprive a party of the fruits of the decree which

has already become final. It is a widely accepted principle of law that there would be no taking away of rights of citizens by implication and whenever

the legislature intends to disturb or affect such rights clear provision is made. In case the legislature really intended that final decree proceedings

would abate, provision could have been made for the consolidation authorities to continue the final decree proceeding so that the decree was not

disturbed and the consolidating process could also work out and keeping the preliminary decree in view allotments could be made giving effect to the

said Act. A final decree proceeding in a suit for partition does not abate under Sec.4(4) of the OCH & PFL Act. With regard to exclusion of property,

the same has already been decided in the appeal.

In the instant case, the preliminary decree passed by the learned trial court has attained finality. In view of the authoritative pronouncement of this

Court in the case of SRINIBAS JENA, the final decree proceeding will not abate. The civil court has jurisdiction to make the preliminary decree final.

In the wake of aforesaid the petition, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.

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