Orissa High Court
Biranchi Sahu vs Jujesthi Sahu And Ors. on 28 April, 1992
Equivalent citations: 1992(I)OLR68
JUDGMENT G.B. Pattnaik, J.
1. The decree-holder in Title Suit No. 18 of 1967 is the petitioner. The suit was one for partition and preliminary decree was passed on 27-3-1970. Final decree proceeding was initiated and it was sealed and signed on 15-4-1986. The petitioner filed Execution Case No. 9 of 1986 for taking delivery of possession of the property allotted to his share under the decree in question. Opp. party No. 2 filed an objection challenging the maintainability of the execution case on the ground that subsequent to the decree, consolidation operation having commenced in the area, rights and interests of the parlies have been worked out in the said consolidation proceedings ; the consolidation authorities have allotted different chakas to different shareholders and parties have executed sale deeds pursuant to the allotment and, therefore, that right cannot be now interfered with in the execution proceeding. The learned Munsif having allowed the objection fifed by opp. party No. 2 and having held that the decree has become in executable because of the adjudication of rights of the parties in the consolidation proceedings, the petitioner has preferred this revision.
2. Mr. Misra, the teamed counsel appearing for the petrtioner. Contends that the rights of the parties having been decided by virtue of the preliminary decree, the executing Court has gone behind the decree by holding that the decree has become inexecutabte. He further contends that the orders passed by the consolidation authorities would I have no effect in respect of the decrees which have become final and, therefore,, the executing Court must execute the same.
Mr. Nayak appearing for opp. parties 1 and 2, on the other hand, contends that subsequent to the decree, the consolidation operation" having started and rights of the parties having been worked out in the said consolidation proceedings, the original decree cannot now be executed and, therefore, the executing Court has tightly refused to execute the decree.
3. In view of the rival submissions made at the Bar, the questions that arise for consideration are whether the decree in a suit for partition can still be executed upon if in the meantime rights of the parties have been worked out in a consolidation proceeding and parties have been allotted with new chakas and the parties. have exercised their right in respect of the newly allotted chakas by executing sale deeds in favour of several persons ? and secondly, whether in the consolidation proceeding subsequent to the decree passed in the partition suit rights of the patties have actually been worked out by allotment of different chakas ? I will consider the second Question first. But before that it will be appropriate to notice certain admitted facts. The plaintiff petitioner had filed a suit for partition which was registered as Title Suit No. 18 of 1967. The preliminary decree for partition was passed on 21-3-1970 and a final decree was passed on 15-4-1986. Subsequent to the passing of preliminary decree, the villages where the lands situate came under consolidation operation by issuance of the notification Under Section 3 (1} of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. In the said consolidation operation, tiral publication has been made on 31-3-1983; chakas have been allotted after preparation) of the R. 0. R. by the consolidation authorities in favour oi the parties ; allotment has been made not in terms of old plot numbers but in terms of new plot numbers and by way of consolidation several old plots which were the subject-matter of the suit for partition have been allotted to several other raiyats of the village. Further both the deeree-holder and the judgment-debtors have sold different portions of chaka plot numbers allotted to them in the consolidation operation to different persons. On these admitted facts, I will now examine the second question first.
4. Undisputedly a preliminary decree had been p3ssed in a suit for partition much prior to the initiation of the consolidation proceedings and under the said decree the rights and interests of the parties in relation to the lands had been determined. The notification Under Section 3(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act was issued subsequent to the said preliminary decree. A preliminary decree obviously cannot be re-opened by the authorities under the Consolidation Act and the Legislature never intended to deprive a party of the fruits of a decree which has already becoms final. Where, therefore, consolidation operation starts subsequent to the preliminary decree, then the consolidation authorities are bound to accept the rights and interests of the parties as carved out under the preliminary decree. In the case of Srinibas Jena (and after him) Madhabananda Jena and Ors. /. Janardan Jena and Ors., 50 (1980) CLT 337 (F. B.), a Full Bench of this Court came to hold that a final decree proceeding would not abate Under Section 4 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act. In the said case, it was held by this Court that while the scheme of the Consolidation Act is to consolidate the fragmented holdings, the object of a final decree proceeding is to divide the lands into fragments and thus an anomalous position arises which requires legislative intervention. Notwithstanding said observation, there has been no legislative Act for the purpose. But from the fact alleged and documents produced, it transpires that notwithstanding the preliminary decree in the suit for partition, the consolidation authorities proceeded and decided the rights of the parties, both the decree-holder and the judgment-debtors, by allotting different chakas in their favour, the said consolidation proceedings have been finalised and in the process of such allotment the lands which were the subject-matter of the partition suit have been allotted of different other raiyats. That apart, even the decree-holder himself has executed sales in favour of different persons from out of the chaka lands allotted to him in the consolidation proceeding. In the aforesaid premises, I have no hesitation to come to the conclusion that the rights of the parties have been fully effectuated in the consolidation proceedings which have become final and new chaka plots have been allotted to the petitioner as well as opp. party No. 2 and pursuant to such allotment, parties have further effected sates in respect of parts of their chaka lands to different persons.
5. Coming to the first question, no doubt there is ample force in Mr. Misra's contention that the rights of the parties pursuant to the preliminary decree in the suit for partition have to be given effect to in the execution proceeding and the consolidation authorities are bound to accept the same and cannot re-open the metter and come to a different conclusion, as has been held by this Court in Srinibas Jena's case, referred to supra. Even though a final decree proceeding which follows a preliminary decree passed in a title suit does not abate Under Section 4(4) of the Consolidation Act, as has been held in the aforesaid Full Bench decision of this Court, but the question that arises is where in the consolidation operation the consolidation authorities have already worked out the right/: of the parties without being aware of the so-called preliminary decree as it was not produced before the consolidation authorities and the consolidation operation is over, would it be open for the executing Court to execute the decree for partition notwithstanding the allotment of chakas in favour of different persons in the consolidation proceedings ? My considered conclusion on the aforesaid point is that the executing Court now cannot execute the decree because of the subsequent events. Even though the final decree in a suit for partition does not abate under the Consolidation Act, but in view of the conduct of the parties in the consolidation proceedings which were initiated subsequent to the preliminary decree, and in the said consolidation proceedings, parties have worked out their rights and the consolidation authorities have finally decided the question of right, title and interest of the parties in respect of the lands in question and have allotted different chakas in favour of the petitioner and opp. party -No. 2, the decree that had been passed in favour of the petitioner-decree-holder has become inexecutable and the principle of res judicata would apply. In the very Srinibas Jena's case (supra) it has been held by this Court that once the parties work out their rights before the consolidation authorities, they cannot re-agitate the same question over and over again in the Civil Court and those questions stand finally concluded by the decision of the consolidation authorities. The rule of res judicata is founded on the principle that a matter which has been litigated between the parties and finally adjudicated should not be allowed to be re-agitated between the same parties. The preliminary decree in a suit. for partition declares the interests of the parties in the joint family land. Subsequent to the said preliminary decree, the consolidation operation having started and in the said proceeding rights of the parties having been fully worked out and parties having been allotted chakas and pursuant to said allotment parties having effected further sales in favour of different persons, it would be wholly inequitable now to allow the executing Court to execute the decree that had been passed in the suit for partition. In the aforesaid premises, on going through the impugned order passed by the executing Court, I do not find any error of law or error of jurisdiction so as to be interfered with by this Court in exercise of power Under Section 115 of the Code of Civil Procedure.
The revision application accordingly fails and is dismissed, but in the circumstances, there would be no order as to costs.