Nayanasundari Bewa vs Subash Ch. Behera and Others

P.K. Mohanti, J.—This civil revision is directed against an order for partial abatement of a final decree proceeding under the provisions of Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the "Act").

Opposite parties 2 to 6 filed Title Suit No. 74 of 1962 for partition of the suit properties which are situated at different villages. On 28-3-1966 a preliminary decree for partition was passed on compromise, declaring 7 annas share of the Plaintiffs and 9 annas share of Defendants 1 and 2 in the suit properties. On 15-9-1969 the Plaintiffs applied for making tbe preliminary decree final. During the pendency of the final decree proceedings, Defendant No. 1 filed a petition stating therein that the lands in suit had come under consolidation operations and the suit stood abated by virtue of section (4) of the Act. Opposite party No. 1 who was Defendant No. 2 in the suit filed counter contending that the rights of the parties having already been declared by a preliminary decree there could be no abatement of the suit and that some of the suit properties being situated outside the consolidation area the entire suit could not abate. It was brought to the notice of the Court that on 10-8-1973 the State Government had issued a notification u/s 3(1) of the Act bringing the village Champati under Salipur Police Station in the district of Cuttack under consolidation operation. The learned Subordinate Judge after hearing the parties directed that the final decree proceedings so far as it relates to the lands in village Champati would stand abated and that the proceeding would continue so far as other properties are concerned. Aggrieved by this order Defendant No. 1 has come up in revision.

The question raised is whether a final decree proceeding can abate u/s 4(4) of the Act upon publication of the notification issued u/s 3(1) of the Act, Section 4(4) of the Act reads as follows:

Upon the publication of the notification issued under Sub-section (1) of Section 3 in the Official Gazette,- the consequences as hereinafter setforth, shall, subject to tbe provisions of this Act, ensue in the consolidation area in the publication of notification u/s 41 or Sub-section (1) of Section 5, as the case may be -

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(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.

Provided that no such order shall be passed without giving the parties concerned an opportunity of being heard:

Provided further that on the issue of a notification under Sub-section (1) of Section 5 in respect of the said area or part thereof, every such order in relation to the lands situate within such area or part thereof, as the case may be, shall stand vacated and all such suits and proceedings shall be proceeded with and disposed of in accordance with the law as if they had never abated:

Provided that such abatement shall be without prejudice to the right of the person affected to agitate the right or interest which formed the subject matter of the said suit or proceeding before the paper consolidation authority in accordance with the provisions of this Act or the rules made thereunder.

On a plain reading of the provisions it is obvious that the bar of Section 4(4) would apply on try to those proceedings which relates to 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 the Act. A proceeding pending before the Civil Court shall abate if it is a proceeding in respect of matters which can validly be decided or adjudicated upon by Consolidation Authorities.

A final decree proceeding is not a proceeding for declaration of a right of interest in land., Under Order 20, Rule 18, CPC a preliminary decree for partition declares the rights of the several parties interested in the property. The function of the final decree is merely to carry into effect the terms of the preliminary decree. It gives only practical effect to the physical division and separate possession of the property. It cannot go behind the preliminary decree on a matter determined by the preliminary decree.

It is as much subordinate and as much dependant as an order for the execution of a decree is subordinate and dependant on the decree which is being executed-vide Taleb Ali and Another Vs. Abdul Aziz and Others, , which was followed in Banwari Lal and Others Vs. Shaikh Shukrullah and Others,

The matter may be viewed from another angle. No doubt, the Consolidation Authorities have been vested with powers u/s 7 of the Act to effect partition of joint holdings on application of any party interested notwithstanding anything to the contrary contained in any other law for the time being in force. According to the proviso to Sub-section (1) of Section 7 such partition shall ordinarily be effected on the basis of shares. But where the concerned land owners agree, it may be effected on the basis of specific parcels of land. The Act does not provide any machinery for actual division of the property. Thus the Consolidation Authorities have no power to effect partition by metes and bounds unless the concerned land owners agree. I am, therefore, of the view that the final decree proceedings are outside the purview of Sub-section (4) of Section 4 of the Act.

It is well settled that a vested right cannot be disturbed except by an express statutory provision. The preliminary decree, which stands final and conclusive, has vested the parties with rights of which they can be divested only by an express provision. There is no provision in the Act stating what shall happen to a decree already passed. The Act is not intended to be used for re-adjudication or rights already settled by a competent Court. There is no provision for re-opening of a decree or for its extinction. Thus where the rights of the parties have already been adjudicated by a preliminary decree the question of abatement of the suit or proceeding does not arise.

In the case of Mohammad Nakir Vs. Hasratunnisa Bibi, , relied upon by the Court below, the preliminary decree itself was under challenge in second appeal and the notification u/s 3(1) of the Act was published during the pendency of the second appeal. It was, therefore, held that power having been vested in the Consolidation Officer to effect partition the appeal arising out of preliminary decree for partition must abate. The learned Subordinate Judge went wrong in applying that decision to the facts of this case.

For the foregoing reasons, I hold that a final decree proceeding is not a proceeding as contemplated under Sub-section (4) of Section 4 of the Act. I am fortified in this view by a decision reported in Rudra Pal Singh Vs. Ram Pal Singh and Others, . The learned Subordinate Judge illegally exercised his jurisdiction in passing the impugned order.

The civil revision is allowed and the order for partial abatement of the final decree proceeding is set aside, but in the circumstances, without any order as to costs.

The final decree proceeding shall continue in respect of the entire suit properties. As this is a very old matter, the learned Subordinate Judge is directed to dispose of the same most expeditiously. .

Revision allowed.