Orissa High Court
Somanath Bhataria vs Punananda Bhataria And Ors. on 15 March, 1991
Equivalent citations: 1991(I)OLR445
JUDGMENT P.C. Misra, J.
1. This revision is directed against an order dated 4-5-1W passed by the learned Subordinate Judge, Jagatsinghpur in title Suit No. 111 of 1984 holding, that the suit has abated Under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1872 (hereinafter referred to as the 'Act').
2. The plaintiff in the aforesaid suit is the petitioner in this revision. The suit is one for partition wherein the plaintiff has claimed 1/6th share in A Schedule, 1/4th share in '8' Schedule and 1/2 share in C Schedule properties. The plaintiff is the son of opp. party No ..According to him, his Mther (O.P. No. 7) was adopted by opp. party No. 1 and, therefore, he has interest in the joint family properties. He also relied upon a document acknowledging adoption of present opp. party No 7. The defendants in the. suit filed different sets of written statements and they have disputed the factum of adoption as alleged by the plaintiff. According to there in plaintiff has no locus stand to file the suit as he is not the grand-son of opp. party No. 1. An application was filed in the trill Court to the effect that the suit involves the question of determination of status and, therefore, the Civil Court has no jurisdiction to decide the suit as the area comprising the suit properties is under consolidation operation. They prayed for abatement of the suit Under Section 4(4) of the Act. The learned trial Court after hearing the parties came to a conclusion that the essential relief sought for in the suit being for partition, it would abate as the consolidation authorities have been empowered to effect partition.
3. It has been contended in this Court by the learned counsel for the petitioner that ' the relief for partition of the suit properties solely depends upon the determination as to whether opp. party No. 7 was the adopted son of opp. party No, 1. According to him, the consolidation autho rities having not been empowered to give such a declaration the suit must be held to be entertain able by the Civil Court and cannot be abated under Sub-sec (4) of Section 4 of the Act. Though this Court in some decisions had taken the view that the determination of status of a person by reason of an adoption if disputed, is beyond the scope of the consolidation authorities, the same his undergone a change in the mean time. In a decision reported in Vol. 70(1930) C. L. T. 439 (Jairam Samantray v. Baikuntha Sama ntaray and others) this Court has held that the statement of law that the consolidation authorities have no jurisdiction to decide the question of adoption (that being a question of status), is not correct. Their Lordships have observed that the sopship is acquired either by birth or by adoption. if title to the property as a son by birth can be adjudicated upon by the consolidation authorities there is no reason as to why the adjudication of claim to title as son by way of adoption should be out of bounds to the consolidation authorities. It, therefore, follows that it may not be within the jurisdiction of the consolidation authorities to give a declaration as to the validity or invalidity of an adoption, but the question of adoption, if required to fee decided incidentally for the purpose of adjudicating the right, title and interest in a property, the same would be within the powers of consolidation cuthorities and consequently the Civil Court will have no jurisdiction to decide the same, and the suit must abate Under Section 4(4) of the Act. In my view, the aforesaid decision declares the correct position of law. In the present suit the relief sought for is partition. The Consolidation Act gives the power to the consolidation authorities to effect partition of a joint family property on application of any party. Section 51.of the Act ousts the jurisdiction of the Civil Court in all matters which an officer or authority empowered under this Act is competent to decide.
4. Mr. Patnaik, learned counsel for the petitioner, has invited my attention to the issues settled in the suit some of which relate to the validity of the adoption and the validity of the document which the plaintiff relies upon namely, the deed acknowledging the adoption. His argument is that the consolidation authorities will have no jurisdiction to decide the validity of the deed acknowledging adoption as the genuineness and validity of the same has been seriously challenged by the defendant, ft is for that reason the suit should continue in the Civil Court as the Civil Court will have jurisdiction to entertain all questions as to the genuineness, validity or enforceability of the said document. This argument is presumably based on the decision of the Supreme Court reported in A. I. R. 1973 S. C. 2451 (Gorakh Math Dube v. Hari Narain Singh and others) where their Lordships have held that the consolidation authorities will have no jurisdiction to declare a document void in a void able transaction. I heir Lordships in the said decision have said that the consolidation authorities can ignore a void document which does not require to be set aside by a Court The aforesaid theory is inapplicable to the facts of the present case. Neither party to the suit has prayed for setting aside the deed of acknowledgement of adoption. The raw as it stands does not require a document to prove or disprove an adoption. Validity of adoption depends upon proof of various facts. Hundreds of documents would not substitute the proof of the formalities by which an adoption is established. Therefore, the question of setting aside the deed of acknowledgement of adoption does not arise in this case.
5. The question as to whether opp. party No 7 was validly adopted by opp. party No. 1 has to be established like any other facts. Such a question can be decided by the consolidation authorities, if the same is incidentally necessary for the purpose of effecting partition of the joint holdings. The point made out in the written statement that the plaintiff petitioner not being the grand-son of opp. 5. party No. 1 has no locus standi to maintain a suit for partition is available to be canvassed before the consolidation authorities who shall adjudicate upon the same and then decide as to whether or not the relief of partition claimed by the plaintiff- petitioner is available to be granted.
6. There is another question which, though raised in the trial Court by the plaintiff, has not been properly appreciated nor discussed in the impugned under. The Consolidation Act is meant to provide consolidation of holdings and prevention of fragmentation of lands for development of agriculture in the State. It is not a permanent process, but the operation of consolidation comes to an end either by cancellation of notification issued under Sub-section (1) of Section 1 of the Act as provided Under Section 5 of the Act or by a notification Under Section 41 of the Act to the effect that the consolidation operations have been closed in the unit After the publication of the notification Under Section 3(1) of the Act, the operation of consolidation passes through various stages. lt begins with preparation of map, land register and determination of valuation of share in joint holdings and reaches a finality by confirmation of provisional consolidation scheme Under Section 21 and preparation of final map and record of rights on the basis of consolidation scheme confirmed as provided Under Section 22 of the Act. Section 7 of the Act in specific terms vests the powers to effect partition of joint holdings with the Assistant Consolidation Officer and the Consolidation Officer. It has been further provided in the said Section that a partition on the basis of specific parcel of land may, on an application in that behalf, be effected by the Assistant Consolidation Officer or the Consolidation Officer, where all concerned land owners so agree. Where ail concerned land owners do not agree, the same can be done by the Consolidation Officer. Cause of action for partition of joint holdings may arise at any time irrespective of the stage of the consolidation operation. All objections relating to right, title and interest on land can be raised and .-disposed of by the consolidation authorities, whereafter the map, land register and other records prepared Under Section 6 of the Act shall be revised, if necessary, on the basis of the orders passed disposing of the objection raised. Section 14 of the Act provides that no question in respect of the fight, title and interest in the land partition of joint holding or valuation of lands, house, structures, trees, wells and other improvements shall be permitted to be raised which could have been raised Under Section 9 of the Act but has not been raised at any subsequent stage of the consolidation proceeding. The only exception to the said prohibition is provided in Section 15 which says that all matters relating to changes and transfers affecting any of the rights, title and interest recorded in the land register published Under Section 13 for which cause of action arose after the publication of, records Under Section 9 of the Act may be raised before the Assistant Consolidation Officer as and when they arise, but not latter than the date of publication of the order, if any, under Sub-section (1) of Section 5 or the date of confirmation ot the scheme under Sub-section (I) of Section 21 whichever is earlier. Thus Section 14 and Section 15 read together would mean that no question with respect to the partition of joint holdings can be raised unless the cause of action for the same arose after the publication of the records under. Section 9 and before the confirmation of scheme made under Sub-section (1) of Section 21 of the Act. In other, words, once the confirmation of scheme is made under Sub-section (1) of Section 21, the prayer for partition of joint holdings cannot be entertained by the consolidation authorities. Before deciding as to whether a suit shall abate Under Section 4(4) of the Act, it is also necessary to find out as to which stage the consolidation operation has reached. If a relief is not available to be granted to a party by the consolidation authorities because of the bar spelt out in Sections 14 and 15 of the Act, the suit cannot be held to be abated. This is so because even though the officer or authority was empowered with respect to the matter in a pending suit the exercise of such power has been prohibited after a particular stage of the consolidation operation and abatement of suit in such circumstances would lead to an absurdity in the sense that the relief prayed for in the suit would not be available to the party in any forum under the Consolidation Act. While holding that the suit as framed in the present case is liable to abate Under Section 4(4) of the Act, I would require the learned Court below to enquire as to whether the relief for partition is still available before the consolidation authorities unaffected by the bar under Secs 14 and 15 of the Act. I would dispose of this revision in the light of the observation made above. No costs.