Mahadeb Pati and Others vs Geli Dei and Others

S.C. Mohapatra, J.—This appeal by the plaintiffs arises out of an order of remand passed by the appellate court in exercise of the under Order 41, Rule 23-A, CP.C.

The short facts necessary for this appeal may be stated :

During the pendency of the suit the area in which the disputed land is situated came under consolidation operation in view of Notification u/s 3(3) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. No order of abatement was passed in the trial court u/s 4(4) thereof and the suit was decreed. In appeal by the defendants the question of abatement of the suit was raised and the appellate court has found that the order of abatement ought not to be passed. With the said finding, the appellate court set aside the decree and remitted the matter back with a direction to keep the suit pending till notification u/s 41 of the Act is issued.

It is not in dispute before me for the purpose of this appeal that title and possession of the plaintiff in respect of the suit land has been found by the consolidation officer which has been confirmed in appeal. The defendants have preferred revision which is pending u/s 51 of the Act, a suit with regard to the reliefs which can be granted under the Consolidation Act is not to be entertained. In other words, the finding with regard to title and possession by the consolidation authorities becomes final Relief of injunction cannot be granted by the consolidation authorities. Civil Court is to consider the said question on the basis of the finding of the consolidation auth6rities. There is no reason why a litigation should be kept pending until the notification is published u/s 41 of the Consolidation Act.

Appellate court can entertain additional evidence relating to the final order in the consolidation proceeding. For that purpose only, the decree is not required to be set aside to keep the suit pending till final disposal of the consolidation proceeding. Appellate court could have done well in staying the hearing of the appeal till disposal of the consolidation proceeding directing the parties to bring to the notice of the appellate court the result of the final disposal of such proceeding.

In the result, this appeal is allowed and the impugned order is set aside. Appellate court is directed to keep the appeal pending until disposal of the revision by the statutory authorities or until such other time as the circumstances demand. Both the parties are directed to appeal before the appellate authority on 9th. Nov. 1987 on which date, the next date shall be fixed by the appellate court for intimating the result of the revision for the purpose of hearing the appeal. There shall be no order as to costs in this appeal.