Orissa High Court
Sairendri Sahu vs Subasini Sahu @ Pradhan And Another .... ... on 29 March, 2019
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
C.M.P.No.1278 of 2018
In the matter of an application under Article 227 of the Constitution
of India.
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Sairendri Sahu .... Petitioner
Versus
Subasini Sahu @ Pradhan and another .... Opposite parties
For Petitioner -- Mr.Sidhartha Mishra,
Mr.Swaroop Kumar Das,
Advocates
For Opposite party
nos.1 & 2 -- Mr.Debendra Kumar Sahoo,
Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH Date of Hearing:19.03.2019 & Date of Judgment:29.03.2019 Dr.A.K.Rath, J. By this petition under Article 227 of the Constitution of India, the petitioner assails the order dated 6.8.2018 passed by the learned District Judge, Sambalpur in Civil Revision Petition No.7 of 2017. By the said order, the revisional court dismissed the revision and confirmed the order dated 2.8.2017 passed by the learned Senior Civil Judge, Sambalpur in Civil Suit No.226 of 2016 rejecting 2 the application of defendant no.3 under Order 7 Rule 11 CPC to reject the plaint.
2. The plaintiff-opposite party no.1 instituted the suit for partition, declaration that the registered sale deeds dated 1.7.2016, 11.4.2013 and 6.8.2015 are null and void and permanent injunction. The defendant no.3 appeared and filed an application under Order 7 Rule 11 CPC to reject the plaint stating that the suit is not maintainable in view of the bar contained in Section 51 read with Section 41 (2) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act ("OCH & PFL Act"). The plaintiff filed objection. Learned trial court rejected the petition on 2.8.2017. Aggrieved by and dissatisfied with the order, defendant no.3 filed Civil Revision Petition No.7 of 2017 before the learned District Judge, Sambalpur, which met with the same fate.
3. Heard Mr.Sidhartha Mishra along with Mr.Swaroop Kumar Das, learned Advocates for the petitioner and Mr.Debendra Kumar Sahoo, learned Advocate for opposite parties 1 & 2.
4. Mr.Mishra, learned Advocate for the petitioner submitted that the subject matter of dispute was before the consolidation authority. The matter is pending before the Additional Commissioner of Consolidation & Settlement, Sambalpur. The consolidation operation has not been closed in view of the deeming provision of sub-section 2 of Section 41 of the OCH & PFL Act. The consolidation authorities have been vested with power to decide the right, title and interest of the parties. The jurisdiction of the Civil Court is barred. If 3 grant of permanent injunction depends upon the determination of the right and interest in any land situated in the consolidation area, the suit for permanent injunction is not maintainable. He further contended that a stranger cannot challenge the sale deed on the ground of legal necessity, unless he or she has interest in the property. In view of the same, the plaint may be rejected. To buttress the submission, he places reliance on the decisions in the case of Duruju Mallik @ Duryodhan Swain v. Kruspasindhu Swain and others, AIR 1985 Ori, 200, Girija Mohanty v. R.D.C. (Central Division), Cuttack and others, 2009 (I) OLR-198, Rajendra Kumar Routray and others v. Gourahari Pattnayak and others, 2017 (II) ILR-CUT 600, Jashoda Mahana v. Shibashankar Mahana, 2018 (I) OLR-816, Bholanath Bal and others v. Nandi Bal and others, 2018 (I) OLR 173 and Grama Devati, Satabhauni Thakurani and others v. Ranga Bewa and others, 2018 (I) CLR 227.
5. Per contra, Mr.Sahoo, learned Advocate for opposite parties 1 and 2 submitted that consolidation operation in the area had been closed. Thereafter, the plaintiff instituted the suit. The cause of action for institution of the suit arose after closure of consolidation operation.
6. Order 7 Rule 11 CPC envisages rejection of the plaint. Order 11(d), which is relevant, is quoted hereunder:
"11. Rejection of plaint.-The plaint shall be rejected on the following cases:
(a) to (c) xxx xxx xxx 4
(d) where the suit appears from the statement in the plaint to be barred by any law;
xxx xxx xxx"
7. Clause (d) of Order 7 Rule 11 CPC provides that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law.
8. Jurisdiction of the consolidation authorities is well settled. In the celebrated judgment of Gorakh Nath Dube v. Hari Narain Singh, AIR 1973 S.C. 2451, the apex Court held :
"......We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction; by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it. In the case before us, the plaintiff's claim is that the sale of his half 5 share by his uncle was invalid, inoperative, and void. Such a claim could be adjudicated upon by consolidation courts. We find ourselves in agreement with the view expressed by the Division Bench of the Allahabad High Court in Jagarnath Shukla's case, 1969 All LJ 768 (supra), that it is the substance of the claim and not its form which is decisive."
9. In view of the authoritative pronouncement of the apex Court in the case of Gorakh Nath Dube, the consolidation authorities have no power to declare the sale deeds void.
10. Taking a cue from Gulzar Khan v. Commissioner of Consolidation and others, 76 (1993) CLT 161, this Court in Rajendra Kumar Routray held that the Civil Court has the jurisdiction to entertain the suit notwithstanding the bar contained in Section 51 of the OCH & PFL Act.
11. In Duruju Mallik @ Duryodhan Swain, the Full Bench of this Court held :
"Thus where the grant of injunction depends upon the determination of the right or interest in any land situated within the consolidation area, the suit for permanent injunction may not be maintainable. In order to determine, whether the suit for injunction simpliciter is maintainable or not, the substance of the pleadings has to be looked into and not merely the form of pleadings of the plaintiff alone or the prayer made by him. Each case is to be decided in the facts of its own."
The said view was reiterated in Bholanath Bal.
12. The decision in the case of Girija Mohanty is distinguishable on facts. This Court held that a reading of Section 41(2) of the Act clearly shows that even when a notification under 6 Section 41(1) has been issued, notwithstanding issuance of such notification, consolidation operation shall be treated to be still continuing in respect of the cases or proceedings pending under any of the provision of the Act on the date of issuance of such notification. Sub-section (3) of Section 41 of the Act stipulates that the order passed in such pending proceedings shall be given effect to by such authorities as may be prescribed. There is no quarrel over the proposition of law. But then the consolidation authorities have no power to declare the sale void. Prayer in the suit is multifarious. In view of the same, the petition under Order 7 Rule 11 CPC is misconceived.
13. In Jashoda Mahana, the plaintiff filed a suit for permanent injunction. The consolidation officer directed to record the land in favour of defendant no.1. No appeal was filed. This Court held that the suit is not maintainable. As held above in the instant case, the prayer is multifarious.
14. In Grama Devati, the question of adoption was an issue.
15. The order passed by the courts below cannot be said to be perfunctory or flawed warranting interference of this Court under Article 227 of the Constitution of India. The petition is dismissed. There shall be no order as to costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack The 29th March, 2019/CRB