Puni Bewa and Another vs Ananta Sahoo and Others

P.K. Mohanti, J.—This civil revision is directed against an order for abatement of the suit u/s 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the Act)".

One Kartik Tarai died on 15-4-1961 leaving behind him his two daughters Puni and Pitei. Plaintiff No. 1 is Puni ana Plaintiff No. 2 is the daughter of Pitei who is dead Defendant No. 1 Ananta Sahoo claims to be the adopted son of late Kartik Tarai. Defendants 2 and 3 who are relatives of Defendant No. 1 filed O. L. R. Case No. 1001 of 1975 u/s 36-A of the O. L. R. Act in respect of some lands left by late Kartik Tarai. They impleaded Defendant No. 1 alone as their landlord and got the lands settled in their favour on admission by Defendant No. 1. The Plaintiffs Petitioners were not made parties to that proceeding. Upon these allegations, the Plaintiffs filed the suit for a declaration that Defendant No. 1 is not the adopted son of late Kartik Tarai and for a further declaration that tbe order passed in O. L. R. Case No. 1001 of 1975 in favour of Defendants 2 and 3 was fraudulent and collusive and not binding against them. They also prayed for partition of the suit lands and for a permanent injunction restraining the Defendants from interfering with their possession.

During the pendency of the suit a notification u/s 3(1) of the Act was published on 15-7-1978 and on the basis thereof it was urged on behalf of the Defendants that tbe entire suit stood abated u/s 4(4) of tbe Act. It was conceded on behalf of the Plaintiffs that the suit in so far as it relates to the relief for partition would abate but the matters relating to the other reliefs being outside the scope of the Act tbe entire suit could not abate. The learned Subordinate Judge came to hold that tbe issues relating to adoption and partition being interlinked partial abatement would lead to piecemeal hearing of the suit at different times causing harassment to the parties and in order to prevent multiplicity of proceedings and dual trial it was just and fair to order for abatement of the entire suit. Accordingly, he held that the entire suit would stand abated by virtue of Section 4(4) of the Act. Aggrieved by this order the Plaintiffs have come up in revision.

The relevant provisions of Section 4 of the Act are extracted below:

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 the provision of this Act, ensue in the consolidation area till the publication of notification u/s 41 or Sub-section (1) of Section 5, as the case may be xx xx xx (4) every suit and proceedings for declaration of an tight of 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 tbe 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 also that such abatement shall be without prejudice to the right of the person affected to agitate the tight or interest which formed the subject-matter of the said suit or proceeding before the proper consolidation authority in accordance with the provisions of this Act or the rules made thereunder.

The provision shows that a suit or a proceeding has reference only to a right or interest in any land in regard to which proceedings could be or ought to be started under the Act.

Section 7 of the Act empowers the Consolidation Authorities 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. Thus the relief for partition is a matter in regard to which proceedings could be started under the Act and by virtue of Section 4(4) of the Act the claim for partition must abate. Similar view has been taken by a learned Single Judge of this Court in Mohammad Nakir Vs. Hasratunnisa Bibi, .

So far as the other reliefs are concerned, they relate to matters which are beyond the purview of the Act. The Consolidation Authorities have not been vested with power to give a declaration of status or to set aside a decree or order of a competent Court. They have also no power to grant the relief for permanent injunction. The Civil Court''s jurisdiction to grant such reliefs is not expressly or impliedly barred under the provisions of the Act.

The reasoning adopted by the learned Subordinate Judge is that the abatement u/s 4(4) (If the Act shall cease as soon as a notification u/s 5 of the Act is issued and, therefore, partial abatement would lead to piecemeal hearing of the suit at different times. I am unable to appreciate this reasoning. Section 5 is nothing more than a restatement of the power which the State Government otherwise possessed under the provisions of the General Clauses Act. Under this section it is not obligatory on the State Government to cancel the notification u/s 3 of the Act in every case. It is open to them not to cancel the notification. If the notification is not cancelled. the suit once abated cannot revive. The effect of tbe abatement is to destroy or take away the jurisdiction of the Court before whom the suit is pending.

It is urged on behalf of tbe Petitioners that the suit abated u/s 4(4) will revive after a notification u/s 41 of the Act is Issued. In my opinion the argument is unfounded. Section 51 of the Act operates as a bar to the jurisdiction of the Civil Courts to entertain any suit or proceeding in respect of any matter which an officer or authority empowered under the Act is competent to decide. The very scheme of the Act would be set at naught if after an order is passed by the Consolidation Authority, the Civil Court can thereafter pass a decree in a suit for declaration of right, title and interest in land. This view of mine is reinforced by the provisions of Section 31 of the Act. Under that section when a land owner enters into possession of the Chaka alloted to him, his eight, title interest and liabilities in respect of his original holding shall cease and he shall have the same right title, interest and liabilities in the Chaka allotted to him.

It is permissible to abate the suit partialy under Sub-section (4) of Section 4 of the Act. An example will make the position clear. Take a case where a suit is filed for declaration of title and possession in respect of plot ''A'' situate at village ''X'' and plot ''B'' situate at village ''Y''. A Notification u/s 3(1) of the Act is issued in respect of village ''X'' only. Obviously, the suit will abate only in respect of plot '' A'' situate at village ''X'' but will continue in respect of plot ''B'' situate at village ''Y''.

As the main relief chimed in the suit is a declaration that Defendant No. 1 is not the adopted son of late Kartik Tarai and as the Consolidation Authorities cannot grant this relief to the Plaintiffs, the suit must continue in respect of this relief and tbe other ancillary reliefs flowing therefrom.

12 In view of my above findings, the Civil Revision is allowed and tbe order for abatement of the whole suit is set aside. The learned Subordinate Judge is directed to proceed with the suit in respect of all the reliefs except the one for partition. Patties to bear their own costs.

Revision allowed.