Orissa High Court
Rabindranath Sahu vs Suresh Ch. Nayak And Ors. on 3 July, 2002
Equivalent citations: 2002(II)OLR198, 2002 A I H C 3527, (2002) 2 ORISSA LR 198 (2002) 94 CUT LT 221, (2002) 94 CUT LT 221
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. Defendant No. 1 is the appellant before this Court against a confirming judgment. Respondents 1 to 4 filed the suit for declaration of title and possession, correction of record of rights as well as recovery of possession in the event they found to have been dispossessed and for permanent injunction.
2. The case of the plaintiffs-respondents is that Late Bhagaban Naik is the father of the plaintiffs 1 & 2 and husband of the plaintiff No. 3. He had purchased the schedule property from one Bhanja Bhoi under a registered sale deed dtd. 26.10.1945. After purchase of the said land the said Bhanja Bhoi continued to remain in possession over the same and died in the year 1953. At that time plaintiffs 1 & 2 were minors and plaintiff No. 3 was a Paradanasini lady and could not take proper steps for recording the said land in their names in the settlement operation. Accordingly, a prayer is made for correction of the record of rights. It is further alleged in the plaint that the plaintiff No. 1 who was residing at Rourkela and plaintiff No. 2 who had completed his studies in 1978 wanted to construct a building over the suit land for business purpose and when they visited the suit land and measured it, it was found that defendant No. 1 had encroached a portion of the suit land. Upon further enquiry they found that the suit plot had been divided into plots in the hal settlement and the hal plot No. 3867 measuring 0.04 decs, had been recorded in the name of defendant. No. 1 and the other hal plot had been recorded in their name as well as proforma defendant Nos. 2 & 3. Since the defendant No. 1 was trying to construct a building over the same, the suit had to be failed in the aforesaid reliefs.
3. In the written statement filed by defendant Noa. 1 & 4, the claim of the plaintiffs with regard to title and possession over the suit plot was denied. The aforesaid two defendants also denied the sale of the suit land by Bhanja Bhoi in favour of Bhagaban Naik. According to them even if such a sale deed is there, the possession had not been delivered to Bhagaban Naik and after Bhuja Bhoi his son Maga was in cultivating possession of the suit land till 1967 whereafter Maga sold the suit property to defendant No. 4. Thereafter, defendant No. 4 remained in possession of the suit land till 1968 and sold the same to defendant No. 1 after due permission from the S.D.O. That after purchasing the suit property in the year 1968 he started construction of a building over the suit land in the same year and has also constructed a room over the suit land in the year 1969 and started a tailoring shop.
4. On the basis of such pleadings, the trial court framed 10 issues and decreed the suit. While answering the issue No. 4, the trial court held that the suit plot as mentioned in the record of rights of 1927 is the same plot as indicated in the village map of 1927 settlement. While answertng issue Nos. 5,6 & 7, the trial court held that plaintiffs had acquired title and possession over the suit land under sale deed Ext. I and the vendors of defendant no. 4 as well as Maga and Panu had not acquired title over the suit land by way of adverse possession and as such defendant no. 4 had no title over the property. The trial court also found possession of the plaintiffs and allowed the prayer for permanent injunction. Challenging the judgment and decree of the trial court, the defendant No. 1 filed an appeal before the learned Addl. District Judge, Bhubaneswar and the said appeal having been dismissed, the present Second Appeal has been filed.
5. This Court admitted the Second Appeal on the following ground :
"Whether the suit Is barred under Section 51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972."
Shri Mishra, learned counsel appearing for the appellant also did not raise any other question of law for adjudication of this court.
6. According to Shri Mishra there was a consolidation proceeding in respect of the suit land much prior to the filing of the suit and therefore Section 51 operates as a bar for the civil court to entertain the suit. Shri Mishra further submitted that the prayer of the plaintiffs is for declaration of right, title and interest over the suit land and such a prayer cannot be entertained by the civil court in view of the consolidation proceedings that had been taken up in the village in respect of the same suit land. Reliance was placed by him on a Full Bench decision of this court in the case of Gulzar Khan v. Commissioner of consolidation and others reported in Vol. 76(1993) CLT 161.
7. Shri Mohanty learned counsel appearing for the contesting respondents on the other hand submitted that initiation of consolidation proceedings or conclusion thereof in respect of the suit land had not been brought to the notice of the trial court by the appellant. Accordingly, no issue was framed with regard to maintainability of the suit. The point was raised for the first time before the lower appellate court which having been turned down is raised again in the present appeal. Shri Mohanty further submitted that even accepting the fact that there was a consolidation proceeding in respect of the suit land, still then civil court had the jurisdiction to grant relief with regard to correction of the R.O.R. and permanent injunction and to that extent the suit was maintainable. Shri Mohanty placed reliance on two decisions of this court which shall be dealt with later on.
8. Now the sole question is as to whether the trial court committed an error of law by entertaining the suit on the face of Section 51 of the consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter called the 'Act'), Section 4 of Sub-Section 4 of the Act prescribes that "every suit and proceeding for declaration of any right or interest in any land situate within the consolidation area in regard to which proceedings could be or ought to be started under the Act which is pending before any civil court shall stand abated." Section 51 of the Act provides that "all questions relating to right, title, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction of Revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of the Act and no civil court shall entertain any suit or proceedings in respect of any matter which an officer or authority empowered under this Act is competent to decide." In this connection, reference may be made to a decision of this Court in the case of Paramananda Panda and Ors. v. Purnananda Das and Anr. reported in 59 (1985) CLT 125 = 1985 (I) OLR 143. This Court in the aforesaid decision held as follows :
"The impugned order becomes unsustainable on another ground also. As already noted above, one of the reliefs sought in the suit was to permanently injunct the defendant No. 1 to enter upon lands described in Schedule 'S' and 'C' of the plaint. It is now well settled that the suit for permanent injunction does not abate under Section 4(4) of the Act since the Act makes no provision enabling the consolidation authorities to grant the relief of injunction. (See 54 (1982) CLT 143; Rahas Bewa v. Kanduri Charan Sutar and Ors. and 58(1984) C.L.T. 359; (1984 (1) OLR 887); (Duruju Mallik v. Krupasindhu Swain). As such the present suit wherein one of the reliefs sought was for permanent injunction and wherein an application under Order 39, Rule 1 CPC, had been made and order of injunction had been passed could not beheld to have abated under Section 4(4) of the Act. The legal position on both the grounds enunciated above is fairly accepted by the learned counsel for the opposite parties."
Another decision of this court may also be referred to in the case of Bishnu Mohan Mallik v. Dhruba Naik reported in 1986 (II) OLR 566. In the said decision while dealing with Section 44 and Section 51 of the Act this Court held that a pending suit in the Civil Court does not abate automatically and a judicial order to that effect has to be passed by the Court. The observation of the Court in this regard is quoted below :
"I find that the observation made in the order of reference made by the learned Single Judge that the question that a suit does not automatically abate on the issuance of the Notification under Section 3 of the Act was conceded before him. For ceasing its jurisdiction, the Civil Court has to declare and pass-a judicial order to the effect that the action before it has abated. Although the legal proposition has been conceded by the judgment-debtor as indicated above, nonetheless, I find an authority also in support of the proposition in the case of Kali Devi v. Khub Lal Mahato (1962 Bihar Bar Council Journal 118) where the question of abatement of suits and proceedings under parallel provisions of a similar Act of that State came up for consideration. A similar view has also been taken in Krushna Chandra Nayak @ Mohanty v. Nisamani Bewa 1986 (1) OLR 483.
Thus, apart from the fact that the Civil Court after entertaining the suit had proceeded with the jurisdiction, it also gave a decision on the question of maintainability of the suit and held against the defendant.
It is in these circumstances that the question formulated by me in the beginning has arisen for consideration."
9. Now coming to the facts of the case, it appears from the plaint that the following reliefs were claimed by the plaintiffs.
"(A) that the record of right published in June., 1976 (One thousand nine hundred seventy six) be corrected and Plot No. 3867 (Three thousand eight hundred sixty seven) and Plot No. 3867/5973 (Three thousand eight hundred sixty seven and Five thousand nine hundred seventy three) be recorded in the name of the plaintiffs and the collector of the District be informed for correction of the Record of Rights accordingly.
(B) that the defendant No. 1 ( one) has no right, title and interest over plot No. 3867 (Three thousand eight hundred sixty seven) which is part and partial of 3231/5055 (Three thousand two hundred thirty one and five thousand fifty five) which is wrongly recorded in the village map) which is shown as 3731/5055 (Three thousand seventy hundred thirty one and five thousand fifty five).
(C) that the record of name of proforma defendant Nos. 2 and 3 (two and three) with respect of plot no. 3867/5973 (Three thousand eight hundred sixty seven and five thousand nine hundred seventy three) also be declared as wrong.
(D) the plaintiffs if found to be dispossessed their possession be restored through court.
(E) to any other relief/reliefs to which the court deems fit may be given.
(F) the defendants be permanently restrained not to interfere with the possession of the plffs. over the schedule lands, (G) cost of the suit."
Out of several prayers only one prayer relates to declaration of right, title and interest over the suit plot. In view of what has been decided by this Court in the case of Paramananda Panda and Ors. V. Punananda Das and Ors., consolidation authorities cannot grant relief of permanent injunction and the suit was maintainable to that extent. Even for correction of R.O.Rs. the consolidation authorities had no jurisdiction to pass any order and the suit was maintainable. From the written statement of the defendant No. 1 jt appears that no objection had been raised with regard to maintainability of the suit on the ground of consolidation operation and accordingly no issue had been framed by the trial court for adjudication. Had such an objection been raised the court could have come to a conclusion as to whether the suit was maintainable in respect of the aforesaid reliefs or not. For the first time an objection was raised before the lower appellate court which was turned down. The learned counsel Mr. Mishra appearing for the appellant submitted that consolidation operations started 3 years prior to filing of the suit and had been completed and Section 51 of the Act operates as a bar and only for limited purpose the suit could be maintainable. Reliance is placed by Shri Mishra on a decision of the Full Bench of this Court in the case of Gulzar Khan v. Commissioner of Consolidation and others reported in Vol. 76 (1993) CLT 161 held as follows :
"It is, however, apparent that if any cause of action were to arise after closure of the operations, it is the Civil Court which has to be approached because in that case the consolidation authorities at the grassroot would not be available. This apart, as already indicated, if the case be such which would attract principal (ii) of Magulu Jal's case, the Civil Court would have jurisdiction. May we say that if fraud had been played while decision had been taken by the consolidation authorities during the continuance of consolidation operations, the same would also provide a ground to approach the Civil Court after closure of the operations, it may be pointed out here that Karbalai Begum's case (supra) was one of fraud and it was, inter alia, because of this that the bar of Section 49 was not accepted to oust the jurisdiction of the Civil Court.
We may conclude our views relating to Civil Court's jurisdiction by stating that the same would be available after closure of consolidation operations only in any one of the following circumstances;
(i) The cause of action accruing after the closure of the consolidation operations, a La Suba Singh.
(ii) If the consolidation authorities had taken the decision without complying with the provisions of the Act or had not acted in conformity with the fundamental principle of judicial procedure (which would take within its fold the case of violation of natural justice), vide principle No. (ii) of Magulu.
(iii) Obtaining of order from the hand(s) of consolidation authorities by playing fraud on the party who seeks to approach the Civil Court, as per Karbalai Begum's case."
Shri Mishra submitted that since consolidation operations were over the suit could only be maintainable for the limited purposes as mentioned in the said decision. There is absolutely no material on record to show that the consolidation operations had been closed at the time of filing of the suit. On the other hand, it appears that some of the R.O.Rs. were prepared some time in the year 1984 whereas the suit had been filed in the year 1979. In absence of any material to show that the consolidation operation had been closed by the time the suit was filed. I am afraid, the Full Bench decision of this Court shall not be applicable to the facts of the present case. Rather, para-22 of the plaint shows that the cause of action for filing the suit arose on 20.12.78 when the plaintiffs found the defendant no. I started construction over the disputed plot. Even if the contention of Shri Mishra is accepted to the extent that the consolidation operation had been closed prior to filing of the suit, the cause of action having arisen after that, the suit was also maintainable in view of the observations made by the Full Bench.
7. It is submitted in the present case that when the suit was pending no objection was raised by the defendants with regard to maintainability of the suit on the ground of consolidation operation in the area covering the suit land. There is also no dispute that during pendency of the suit, no such notification has been filed by any of the defendants. The trial court on the basis of material collected decreed the suit. The question that is raised by Shri Mohanty is as to whether after disposal of the suit such a question can be raised. In this connection, reference may be made to the decision of this Court in the case of Bishnu Mohan Mallik v. Dhruba Naik (supra). In the said decision it appears that the suit had been decreed by the Civil Court holding that the same is maintainable as the defendants did not produce the notification under the Consolidation Act. When the decree was put to execution, an objection was raised by the defendants stating that ceiling proceeding under Section 31 of the Act was over and Chaks had been made. This Court did not accept the said objection and held that the decree of the civil court is binding on the defendants judgment-debtor and decree has to be executed as the notification under the Act had not been produced before the Court when the suit was pending and after the suit is decreed such an objection is not sustainable.
8. In view of the discussions above and in view of the admitted fact that no such question with regard to maintainability of the suit was raised before the trial court, I am of the view that such a question cannot be entertained at the appellate stage and accordingly the Second Appeal stands dismissed.