Rohita Kumar Beura vs Pramila Samantaray and Others

Dr. Akshaya Kumar Rath, J—Assailing the order dated 12.11.2007 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in I.A. No. 329 of 2006, refusing to stay the further proceeding of the interim application filed under Order 39 Rule 1 and 2 CPC till disposal of O.L.R. Case No. 8 of 2007, the instant petition is filed under Article 227 of the Constitution of India.

Opposite parties as plaintiffs filed a suit, for declaration of right, title and interest over suit schedule property and for permanent injunction restraining the defendant from coming over the suit land, in the court of learned Civil Judge (Senior Division), 1st Court, Cuttack, which is registered as C.S. No. 398 of 2006. The case of the plaintiffs, in a nut-shell, is that the suit schedule land was recorded in the names of Siba Sahoo and others with forcibly note of possession of the defendant in the remarks column of the Hal Settlement R.O.R. published in the year 1989. To press the legal necessity, Siba Sahoo and others alienated the land in favour of Ramachandra Samantaray, the husband of the plaintiff No. 1 and father of plaintiff No. 2 by means of registered sale deed No. 4781 dated 17.11.1989 for a valid consideration and thereafter delivered possession. Thereafter, Ramachandra Samantaray filed an application under Section 15(b) of the Orissa Survey and Settlement Act before the Commissioner, Land Records and Settlement, Orissa, Cuttack (hereinafter referred to as "the Commissioner") to record the land in his favour and delete the note of forcible possession of the defendant, which was registered as R.P. Case No. 5341 of 1994. The Commissioner allowed the application and directed the petitioner to move before the Tahasildar, Sadar, Cuttack for mutation. Thereafter, Mutation Case No. 1647 of 1995 was instituted before the Tahasildar, Sadar, Cuttack. As per the direction of the Commissioner, the Tahasildar prepared the R.O.R. and deleted the forcible possession of the defendant from the remarks column. Assailing the order of the Commissioner, the defendant filed a writ petition being OJC No. 16815 of 1998 before this Court, on the ground that in a proceeding under Section 145 Cr.P.C. his possession was declared, which is pending adjudication. It is further stated that the plaintiffs filed OLR Case No. 63 of 2006 before the Tahasildar, Sadar, Cuttack under Section 19(1) of the Orissa Land Reforms Act (hereinafter referred to as "the OLR Act") for partition. The Tahasildar passed the order and prepared the R.O.R. in the names of the plaintiffs separately.

Pursuant to issuance of notice, the petitioner, who was defendant in the court below, entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The case of the defendant is that he is in physical possession of the suit land to the knowledge of the plaintiffs and their vendors for more than the statutory period peacefully, openly and continuously and, as such, has perfected title by way of adverse possession. The suit schedule land is a part and parcel of the residential premises. The suit property was recorded in favour of Pankaj Lenka, who died in the year 1950 without leaving any heir. Pankaj was a bachelor. He transferred the suit property along with other property in favour of Banamali Beura, father of the defendant, on the full moon day of Magha of the year 1945 for a consideration of Rs. 45/- and thereafter delivered the physical possession. In the settlement, the area has been reduced by Ac.0.009 dec. His father made oral gift of the property in his favour in 1954. In the settlement, the suit property was wrongly recorded in the names of Souri Sahoo and others but physical possession of the defendant was noted in the draft R.O.R. At a subsequent stage, the note possession was deleted behind him. The Commissioner as well as A.S.O. had no jurisdiction to delete the note of possession of the defendant. It is further asserted that when some outsider including Rama Chandra Samantray interfered with his possession, he initiated a proceeding under Section 145 Cr.P.C., which was registered as Criminal Misc. Case No. 951 of 1989. The possession of the defendant was declared by order dated 30.8.1990. Rama Chandra Samantray, the predecessor-in-interest of the plaintiffs filed Mutation Case No. 1248 of 1994 before the Tahasildar, Sadar, Cuttack against the defendant. In the mutation case, it was found that the purchaser was not in possession of the land. Accordingly, it was held that the case was not maintainable. While the matter stood thus, one Ramani Kanta Pattnaik filed R.P. Case No. 4804 of 1994 on the strength of the sale deed dated 18.11.1989 before the Commissioner. The Commissioner held that the revision was not maintainable. Again, Ramani Kanta Pattnaik and Kishore Parida filed Mutation Case Nos. 1925 and 1926 of 1995 before the Tahasildar, Sadar, Cuttack. The same was rejected. While the matter stood thus, Rama Chandra Samantray filed Mutation Case No. 5314 of 1994 to record his name. It is further stated that after publication of Hal record-of-right, Siba Sahoo and five others filed R.P. Case No. 5494/47 suppressing the material facts. By order dated 3.11.1997, the Commissioner allowed the revision. Against the said order, he filed a writ petition being OJC No. 16815 of 1998. By order dated 8.2.2001, a Bench of this Court passed an interim order of injunction. It is further asserted that the order of the OLR Court is a nullity. After coming to know about the order, he filed an application for review.

During pendency of the suit, plaintiffs filed an application under Order 39 Rule 1 and 2 CPC, which is registered as I.A. No. 329 of 2006. The defendant filed an application to stay further proceeding of the said interim application till disposal of OLR Appeal No. 8 of 2007 pending before the Sub-Collector, Sadar, Cuttack. By order dated 12.11.2007, the learned trial court rejected the application.

Heard Mr. Ray, learned counsel for the petitioner and Mr. Parija, learned counsel for the opposite parties.

Mr. Ray, learned counsel for the petitioner, submitted that in view of the embargo under Section 67 of the OLR Act, the Civil Court has no jurisdiction to entertain any suit or proceedings so far as it relates to any matter which any officer or other authority is empowered by or under the Act to decide. He further submitted that the order dated 5.5.2006 passed by the Tahasildar, Sadar, Cuttack is impugned before the Sub-Collector, Sadar, Cuttack in OLR Appeal No. 8 of 2007. In view of the same, the learned trial court has committed illegality and impropriety in not staying the proceeding of the interim application till disposal of OLR Appeal No. 8 of 2007 since the property involves in the suit and the appeal are same so also the parties.

Mr. Parija, learned counsel for the opposite parties, countered the submissions of the learned counsel for the petitioner and contended that the relief claimed by the plaintiff in the suit cannot be granted by the authority under the OLR Act. The same is essentially a common law remedy and, as such, the civil court has jurisdiction to entertain the suit. He supported the impugned order passed by the learned trial court.

The sole question that hinges for consideration of this Court is as to whether the Civil Court has jurisdiction to try and decide a declaratory suit with a prayer for permanent injunction when an appeal under Section 58 of the OLR Act is pending against the order of the Revenue Officer passed under Section 19(1)(c) of the OLR Act?

Section 19 of the OLR Act provides for effecting partition among co-sharer raiyats. Sub-section (1) of Section 19 of the OLR Act reads as under :

"19. Partition among co-sharer raiyats how to be effected - (1) No partition of a holding among co-sharer raiyats shall be valid unless made by -

(a) a registered instrument; or

(b) a decree of a Court or; or

(c) an order of the Revenue Officer in the manner prescribed, on mutual agreement."

On a bare reading of Section 19(1)(c) of the OLR Act, it is crystal clear that the Revenue Officer can effect partition of a holding among co-sharer raiyats on mutual agreement.

Section 67 of the OLR Act, which is the hub of the issue, is quoted below;

"67. Bar of jurisdiction of Civil Courts - Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction to try and decide any suit or proceedings so far as it relates to any matter which any officer or other competent authority is empowered by or under this Act to decide."

The decision, in the case of Madhaba Sahu Vs. Raghunath Chhotara and Others, (1977) 43 CLT 610 , cited by Mr. Ray is of no assistance to the petitioner. In the said case, opposite party No. 1 as plaintiff filed O.S. No. 49 of 1973 in the court of the learned Munsif, Khurda for declaration that neither petitioner nor defendants 1 and 3 were bhag tenants under him in respect of the suit land. The plea of the defendants was that they were bhag tenants in respect of the land since the time of their ancestors. An application was filed by defendant No. 2 stating that the suit was not maintainable in the Civil Court, inasmuch as the relationship of landlord and tenant between the parties could not be decided by Civil Court and also he had filed a case before the Revenue Court under Section 15(1) of the OLR Act and prayed that the civil suit be stayed till the final decision of the case under the OLR Act. The learned Munsif rejected the said petition on the ground that amendment (d) of Section 15(1) of the OLR Act was introduced after the suit was filed and the same having no retrospective effect, the suit is to proceed. As against the order, the revision had been filed.

On a conspectus of the decision cited supra, it is evident that a case under Section 15(1) of the OLR Act was filed before the Revenue Court. Section 15 of the OLR Act deals with any claim for recovery of arrears of rent by a landlord and any dispute between a landlord and his raiyat or tenant. Taking a que from Section 67 of the OLR Act, the learned Single Judge of this Court held that the legislature has conferred special jurisdiction on the Revenue Court to decide questions as to relationship of landlord and tenant and while such a question was pending before the Civil Court, the OLR Act was amended conferring jurisdiction on the Revenue Court to decide the question of such relationship, and in pursuance of that, one of the parties in the civil suit has already filed a petition raising the same question relating to same property between the same parties in the Revenue Court. It was further held that it should be appropriate on the part of the Civil Court to stay the civil suit and allow the parties to agitate their rights in the Revenue Court and after a decision in the Revenue Court, the civil suit is to be decided in the light of that decision. The said case is distinguishable in the facts and circumstances of the present case.

In the instant case, the plaintiffs filed an application under Section 19(1)(c) of the OLR Act for partition of the property among the co-sharer raiyats. The same does not pertain to the dispute between the landlord and tenant. The bar under Section 67 of the OLR Act does not apply when a suit is not one as between the landlord and tenant. The defendant petitioner does not claim to be a tenant. He asserts title by means of sale deed of the year 1945.

In view of the same, this Court holds that the suit is in the present form is maintainable. There being no illegality or perversity in the order dated 12.11.2007 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack, in I.A. No. 329 of 2006, vide Annexure-1, this Court is not inclined to interfere with the same in exercise of its supervisory jurisdiction under Article 227 of the Constitution.

Accordingly, the petition is dismissed. No costs.