Netrananda Behera vs Khetrabasi Behera

S. Panda, J.—In this writ application, the petitioner has challenged the order dated 11.8.2009 passed by the learned Civil Judge (Junior Division), Kujang in C.S. No. 42 of 2006.

Learned counsel for the petitioner submitted that the petitioner filed Revision Petition No. 1955 of 2006 before the Director, Consolidation, Board of Revenue, Orissa u/s 37(2) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as "the Act") for correction of the consolidation map. The Director, Consolidation remanded the case to the Consolidation Officer, Kujang for demarcation of the land.

During the pendency of the matter before the Consolidation Officer, the petitioner filed an application before the learned Civil Judge (Junior Division), Kujanga to stay the proceeding of the suit till disposal of the said revision case. No doubt, the petitioner has filed the suit for permanent injunction. The plaintiff-petitioner purchased the suit land measuring Ac.0.12 decimals from the opposite party-defendant and possessed the same from the date of purchase. But the final map which has been published u/s 41 of the Act indicates the purchased area of the petitioner to be less than Ac.0.12 decimals, i.e., less of Ac.0.1 decimal 4, links in comparison with the area as per the map of the opposite party-defendant wherein it was increased more than his entitlement. After closure of the consolidation proceeding, he moved the Tahasildar for demarcation of the said land. In the demarcation, it was found that the area of the land in question measuring Ac.0.12 decimals was decreased by Ac.0.1 decimals 4 links. Therefore, he filed the revision before the Director, Consolidation which was entertained as stated in the above paragraph.

Since the matter is pending before the Consolidation Officer, the trial Court while considering the application for injunction can stay the proceeding of the suit till the dispute is decided by the Consolidation Officer. Therefore, the petitioner moved the application before the Court below. But without considering the same, the trial Court has rejected the said application.

This Court, in a decision reported in 32 (1990) OJD 288 (Civil) (Prafulla Kumar Behera v. Mangalu Samal) wherein the suit was one for declaration of title and recovery of possession in a consolidation area, held that relief of declaration can be given by the consolidation Court, but not relief of recovery of possession. Entire suit is not to abate. In such a situation, the suit should be stayed till title is declared by the consolidation Court.

In another decision reported in Budhi Dei Vs. Kalu Muduli and Others, wherein the suit was for partition and permanent injunction and consolidation operation was going on in the area, this Court held that the prayer for partition is to be decided by the authority under the Consolidation Act, but the prayer for permanent injunction comes under the jurisdiction of Civil Court. Therefore, the suit as regards injunction is to be stayed till disposal of the proceeding under the Consolidation Act.

Considering the above ratio, in the present case since the revision is still pending before the Consolidation Officer, the Civil Court, where the suit has been filed for permanent injunction only, stay the proceeding of the suit till the consolidation authorities decide the dispute. Accordingly, ''this Court sets aside the impugned order and directs the Civil Court to stay the further proceeding of the suit till disposal of the consolidation revision.

With the above observation and direction, the writ application is disposed of.