Orissa High Court
Biswanath Jena vs Ramesh Chandra Jena And Ors. on 28 April, 1992
Equivalent citations: 1992(II)OLR58
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Three inter-related questions arise for determination in this revision application, i. e. (a) whether a suit for partition of homestead land abates in terms of Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act. 1972 (in short, the 'Consolidation Act') (b) if the suit abates, have the consolidation authorities jurisdiction to grant relief Under Section 4 of the Partition Act while effecting partition Under Section 7 of the Consolidation Act, and (c) whether relief of permanent injunction, if sought for in a suit for partition, can be granted by the consolidation authorities.
2. The matter was placed before us on being referred by a learned Single Judge considering importance of questions involved. Delineation of factual position is unnecessary, because resolution of the controversy revolves round adjudication of various provisions of the Consolidation Act and the Partition Act. At this juncture, it is relevant to refer to relevant provisions of Section 7 of the Consolidation Act, and Section 4 of the Partition Act which read as follows :
Section 7 of the Consolidation Act :
"7. Powers relating to portion of joint holding, amalgamation of holdings and to determine rent and cess and effect change in the village boundaries. (1) After the publication of the notification issued under Sub-sec,(1)'of Section 3. no partition of a holding lying in the consolidation area Under Section 19 of the Orissa Land Reforms Act, 1960 (Orissa Act 16 of 1960) shall be effected by the Revenue Officer till the publication of the notification Under Section 41 or Sub-sec (1) of Section 5, as the case may be, and the Assistant Consolidation Officer and the Consolidation Officer shall, in addition to the powers vested in them under this Act, have powers to effect partition of joint holdings on application of any party interested notwithstanding anything to the contrary contained in any other law for the time being in force ;
Provided that a partition on the basis of the specific parcels of land may, on an application made in that behalf, be effected-
(a) where all the concerned land-owners agree, by the Assistant Consolidation Officer or the Consolidation Officer; and
(b) where all the concerned land-owners do not agree, by Consolidation Officer;
Provided further that except where all the concerned land-owners agree, a partition on the basis of specific parcels of land shall not be effected without giving the parties concerned a reasonable opportunity of being heard.
xx xx xx"
Section 4 of the Partition Act :
"4. Partition suit by a transferee of share in dwelling-house. (1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family, and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit, and direct the sale of such share to such shareholder and may give all necessary and proper directions in that behalf.
(2) If in any case described in Sub-section (1) to or more members of the family, being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed in Sub-section (2) of the last foregoing section."
3. Section 4. of the Partition Act provides a choice to a member or members of an undivided family to purchase share in a dwelling- house, which has been transferred to a stranger to the family. Such an option is given when the stranger-transferee sues for partition. A suit for partition cannot be continued in a Civil Court and only the consolidation authorities are to decide the dispute relating to partition. [See Siba Prasad Dashson v. Kali Charon Dash, 57(1984) CLT 560]. Under Section 7 of the Consolidation Act, the consolidation authorities have, in addition to the powers vested in them under the said Act, powers to effect partition of joint holdings on application of any party interested, notwithstanding anything to the contrary contained in any other law for the time being in force.
4. According to Mr. Mohanty appearing for the petitioner, power under Sub-section (1) of Section 7 of the Consolidation Act is wide enough to do everything that is necessary for bringing out complete partition by metes and bounds. It is stressed that the word "effect" means "to tiring about; accomplish." It is however, accepted by him that the consolidation authorities have no power to direct delivery of possession of the allotments made in course of partition process. It is further submitted that provisions of Order 20, Rule 14 of the Code of Civil Procedure, 1908 0" short, the 'CPC') can be pressed into service In such a situation. Attractive though the submission is, it does not stand close scrutiny. Provisions of Order 20, Rule14 CPC cannot be engrafted into provision of the Consolidation Act, in view of the limited application of provisions of CPC to the consolidation proceedings.
5. A combined reading of Section 41 of the Consolidation Act and Rule 36 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Rules 1973 (in short. the 'Consolidation Rules') makes it clear that the orders passed by the competent authorities under the Consolidation Act are to be given effect Under Section41(3) by the Tahasildar. Section 41 (3) mandates that the orders passed by the conripatent authorities in matters referred to in Sub-section (2) of the said section are to be given affect by such authorities. Sub-section (2) of Section 41 prescribes that notwithstanding anything contained in Sub-section (1) of the said section, consolidation operations shall not be deemed to have been closed in respect of cases or proceedings pending under the provisions of the Act on the date of issue of notification under Sub-section (1). The notification referred to is one which has to be issued by the State Government as soon as may be after final maps and records have been prepared Under Section 22 to the effect that consolidation operation has been closed in the unit and village or villages forming part of the unit have ceased to be under consolidation operation. Section 43 prescribes that no instrument is necessary for effecting transfer of a holding involved in giving effect to final consolidation scheme and any such instrument if executed does not require any registration. A Full Bench of. this Court in Sundarmani Bewa and Anr. etc. v. Dasarath Parida (deceased by LR) and Ors. etc., AIR 1988 Orissa 166 observed that power relating to delivery of possession is confined only to chakas allotted in the consolidation scheme. ,
6. teamed counsel for petitioner further submits that if any party is prejudiced, he can always move the Civil Court on the basis of title declared pursuant to the allotment made by the consolidation authorities. Such an alternative even though available, does not further the case of the petitioner. As observed in Srinibas Jena (and after him) Madhabananda Jena and Ors. v. Janardan Jena and Ors. , 50(1980) CLT 337, no machinery is provided to execute the decree for partition in respect of homestead land. So far as non-consolidable lands are concerned, the Consolidation Act does not provide for chaka being carved out. The consolidation authorities have no power to direct a party to execute a S3le-deed, and the aggrieved party cannot be said to have any remedy to get the sale-deed executed through the consolidation machinery. Provisions of Section 4 of the Partition Act are somewhat akin to those contained in Section 22 of the Hindu Succession Act, 1956 (in short, the 'Succession Act') and Section 44 of the Transfer of Property Act (in short, the 'T.P. Act'). Under Section 22 of the Succession Act, preferential right is given to a co-heir to acquire interest of another who proposes to transfer his interest, though such right can be claimed with- out there being any partition at all. Although Section 44 of the T.P. Act does not make any reference to actual process of partition against the purchaser, it clothes the purchaser with a right to enforce partition. It is accepted that principles and directions contained in Section 44 of the T.P. Act are to be followed at the time of effecting partition. While dealing with a case Under Section 22 of the Succession Act, one of us (Hon'ble G. B. Pattnaik, J.) held that a suit involving any relief Under Section 22 of the Succession Act does not abate as the consolidation authorities cannot grant necessary relief. In our view, what has been stated vis-a-vis Section 22 of the Succession Act, is applicable to case Under Section 4 of the Partition Act. Looked at from another angle, the consolidation authorities have no power to cancel or set aside a void- able document. They may be confronted with a situation where a void- able document comes under consideration. In such a situation, matter has to be adjudicated by a Civil Court. The inevitable conclusion is that a suit in terms of Section 4(4) of the Partition Act does not abate.
7. The Civil Court alone has competence to grant relief of permanent injunction. In Sridhar Mohanty v. Kamal Kumar Agarwalla, 57 (1984) CLT 417 it was held that notwithstanding non-prescription of and express power in the statute enabling the consolidation authorities to grant relief of permanent injunction, the substance of the pleadings has to be looked into and not merely the form thereof. If on evaluation of the respective stands, it is noticed that disputed question of title has to be determined, and permanent injunction can only be granted as a consequence of such determination, the suit would abate. Observations in Sridhar Mohanty's case (supra) to the aforesaid effect were approved by a Full Bench of this Court in Duruju Mallik @ Duryodhan Swain v. Krupasindhu Swain, 58 (1984) CLT 359. Undoubtedly, as rightly contended by Mr. Mohanty for the petitioner.there is considerable hardship caused to the parties due to absence of any specific provision for grant of temporary or permanent injunction by the consolidation authorities, when the suit abates and matter is taken up by the consolidation authorities. Legislature should have a re-thinking in the matter and it is realty a matter of great concern that notwithstanding observations in Sridhar Mohanty's case Duruju Mallik's case (supra) made more than seven years back, the Legislature does not appear to have taken due notice of the hardship.
8. In view of the analysis made by us, all the contentions raised by Mr. Mohanty for the the petitioners are devoid of merit. The Civil Revision is accordingly dismissed, but in the circumstances without any order as to costs.
G.B. Pattnaik, J.
I agree.