Orissa High Court
Bansidhar Rana And Ors. vs Minati Bewa And Ors. on 27 June, 2000
Equivalent citations: 2000(II)OLR360
Author: P.K. Misra
Bench: P.K. Misra
ORDER P.K. Misra, J.
1. Petition has been filed by the appellants under Section 4(4) of Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, which has been numbered as Misc. Case No. 46 of 2000. The other two Misc. Cases filed by the parties seek for interim directions.
2. The defendants have filed this appeal. Plaintiff-respondent had filed the suit for declaration of title in respect of homestead Plot No. 1949 measuring Ac.0.16 decimals on the allegation that on the death of plaintiff's uncle, Banchhu, in the year 1988 in jointness with plaintiff's father, the property devolved on the plaintiff's father by survivorship. It was claimed that defendant No. 2 was not the widow of Banchhu and even assuming that she was his widow, she had illegally sold half of the disputed land to defendant No.3 Subsequently, she had married one Ratnakar Rana and defendant No. 1 is her son through Ratnakar Rana. Defendant No.3 subsequently sold the specified half of the disputed property along with other lands to defendant No. l in the year 1978. It was alleged that the sale deeds of the years 1934 and 1978 were not binding on the plaintiff and he is entitled to the entire disputed property.
3. The defendants in their written statement claimed that defendant No.2 was the legally married wife of Banchhu. It was further pleaded that there was separation between the plaintiff's father and Banchhu and Banchhu was in possession of half of the disputed plot and after the death of Banchhu, defendant No. 2 sold the aforesaid property to defendant No.3, who after remaining in possession and enjoyment of the same from 1934 till 1978 sold the same to defendant No. 1. Thus defendant No. 1 has valid right in respect of half of the disputed property. In the alternative, it was pleaded that the plaintiff had lost title to the half of the disputed property as described in Ext. A by adverse possession of defendant No. l and his vendor.
4. It was found by the trial Court that defendant No. 2 was the legally married wife of Banchhu and there was no separation between Banchhu and his brother and as such, the alienation of defendant No. 2 was void. However, plaintiff's title in respect of half of the disputed property not covered under Ext. A was declared and the suit was dismissed in respect of half of the disputed property covered under Ext. A on the ground that defendant No. l had acquired right by adverse possession.
5. Against the aforesaid decree of the trial Court appeal was filed by the plaintiff. However, no appeal or cross-objection was filed by the defendants against part of the decree declaring plaintiff's right in respect of half of the disputed property not covered under Ext. A., The appeal of the plaintiff having been allowed and thus declaring plaintiff's right in respect of half of the property covered under Ext. A., the present appeal has been filed by defendants 1 and 2.
6. It is obvious that the decree of the trial Court in respect of half of the disputed property not covered under Ext. A. declaring the right of the plaintiff has become final. In the absence of any appeal or cross-objection before the lower appellate Court, the only question which remains to be considered as to whether the decree of the lower appellate Court in respect of half of the property covered under Ext. A. is valid.
7. The only question which remains for consideration is as to whether the plaintiff has got right in respect of half of the disputed property covered under Ext. A., or whether the plaintiff has lost title by virtue of adverse possession by the defendants. The finding of the trial Court to the effect that there was no separation between Banchhu and his brother (plaintiff's father) has also become final, as such finding had not been challenged before the lower appellate Court by the defendants.
8. It is not disputed that during the pendency of the second appeal, notification under Section 3 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, has been issued. Law is well settled that on the issuance of notification under Section 3 of the Act. all questions relating to right, title and interest of the land are to be decided by the Consolidation authorities and not by Civil Courts and pending suits for declaration of right, title and interest of land are to abate. However, where injunction is prayed for abatement of the suit under Section 4(4) of the Act may sometimes cause prejudice to the parties, as the consolidation authorities do not have any specific power to grant interim orders like injunction. Keeping in view this ambiguity, sometimes instead of abating the suit orders are passed for staying the further hearing of the suit so that, the Courts may deal with the interlocutory matters if necessary but the decision on merit is postponed till finalisation of consolidation proceedings and after determination of right, title and interest of the parties in consolidation proceedings, the Civil Courts may proceed to dispose of the matter in accordance with the decision of the consolidation authorities. While deciding the interim matters like injunction, a Court does not decide finally the right, title and interest of the parties in land, but only passes appropriate orders for preservation or protection of property till final decision of the matter. Any observation made by a Court by considering interlocutory application such as injunction or receivership is made on prima facie consideration of right of the parties and not a final determination. Adoption of such a course is not likely to prejudice the parties as there is no final determination.
9. The question is whether the Second Appeal should be stayed, or after setting aside the decree of the lower appellate Court so far as the half of the disputed property is concerned as covered under Ext. A, the matter should be remanded and the suit should be stayed. While passing orders of abatement in an appeal, it is the normal procedure to set aside the decree of the Court below so that the matter is left open for the appropriate authority, i.e., the consolidation authorities to decide without being encumbered by any observation or decision of a Civil Court. By staying the Second Appeal, confusion may be created that the decree of the lower appellate Court still holds the field and is binding on the consolidation authorities. To avoid any such confusion, it is better to set aside the judgment and decree of the lower appellate Court and to remand the matter to the trial Court with the observation that the hearing of the suit shall remain stayed till finalisation of the consolidation proceedings. However, it would be open to the trial Court to consider any interim application for injunction or receivership for protection of the property. As already indicated, the findings of the trial Court to the effect that defendant No. 2 was the wife of Banchhu and there was no separation between Banchhu and plaintiff's father and as such, the plaintiff had right in respect of half of the property not covered under Ext. A. have become final.
10. Subject to the aforesaid observations, the Second Appeal and the three Misc. Cases are disposed of No. costs.