Orissa High Court
Procedure vs Harekrushna Sahu(Dead) And Others on 20 May, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.01 of 2006
(In the matter of an appeal under Section 100 of the Code of Civil
Procedure, 1908)
Ekadashia Sahu(dead) and others .... Appellants
-versus-
Harekrushna Sahu(dead) and others .... Respondents
Appeared in this case:-
For Appellants : Mr. M.K. Mohanty, Advocate
For Respondents : Mr. A.P. Bose, Advocate
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 11.03.2024 / date of judgment :20.05.2024 A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment.
2. The appellants of this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.26 of 1977 and they were the appellants before the 1st appellate court in the 1st appeal vide T.A. No.42 of 1979.
The respondents of this 2nd appeal were the plaintiffs before the trial court in the suit vide T.S. No.26 of 1977 and they were the // 2 // respondents before the 1st appellate court in the 1st appeal vide T.A. No.42 of 1979.
3. The suit of the plaintiffs before the trial court vide T.S. No.26 of 1977 was a suit for injunction against all the defendants except defendant nos.5 to 7.
4. The case of the plaintiffs before the trial court in their suit vide T.S. No.26 of 1977 was that, all the defendants except defendant nos.5, 6 and 7 are the descendants of Sugri Gauntia.
The plaintiffs and defendant nos.5, to 7 are the descendants of Kairu and Markanda.
5. In order to have a better appreciation, the genealogy of the predecessors of the plaintiffs and defendants is depicted hereunder for an instant reference:-
GENEALOGY _______________________________________________________ Bhani Gadadhar ______________ _______________________ Sugri Madhu Kairu Kandarpa Markanda
6. According to the plaintiffs, the suit properties were recorded in the 2nd and 3rd settlement in favour of the plaintiffs and defendant nos.5 to 7. The plaintiffs and defendant nos.5 to 7 were/are in possession over the Page 2 of 22 // 3 // suit properties under Khata Nos.3 and 4 of 3 rd settlement. The plaintiffs and defendant nos.5 to 7 have been paying rents of the suit properties to the Government. The defendants have no manner of right, title, interest and possession over the suit properties. They (defendants) have never possessed the suit properties at any point of time. Though in the 4th settlement, the draft RoR of the suit properties were prepared in the name of the plaintiffs and defendant nos.5 to 7, but, subsequently, all the defendants other than defendant nos.5 to 7 by taking the officers of the settlement authorities into their confidence managed to prepare final RoR of the suit properties in the 4th settlement in their names erroneously. On the basis of the erroneous RoR of the 4th settlement in respect of the suit properties in the names of the defendants, the defendant nos.1 to 4 created disturbances in the possession of the plaintiffs over the suit properties. For which, a proceeding vide Misc. Case No.70/11 of 1952 was initiated under Section 145 of the Cr.P.C. against them (defendants), in which, the possession of the plaintiffs over the suit properties was declared. Then, again the defendant nos.1 to 3 created disturbances in the possession of the plaintiffs over the suit properties. For which, another 145, Cr.P.C. proceeding vide Misc. Case No.268 of 1956 was initiated, in which the possession of the plaintiffs over the suit properties was also declared on 07.10.1958. Thereafter, for the 3rd time, an another Misc. Page 3 of 22
// 4 // Case vide Misc. Case No.24 of 1976 under Section 145 of the Cr.P.C. was initiated in respect of the suit properties at the instance of the defendant no.1, but, when the defendant no.1 came to know that, he cannot succeed in that proceeding, then, he approached for dropping of that proceeding and at the instance of defendant no.1, that proceeding under Section 145 of the Cr.P.C. vide Criminal Misc. Case No.24 of 1976 was dropped. In spite of continuous defeat of the defendants from the proceedings under Section 145 of the Cr.P.C. in respect of the suit properties, the defendant nos.1 to 4 tried to interfere in the possession of the plaintiffs over the suit properties, for which, the plaintiffs approached the civil court by filing the suit vide T.S. 26 of 1977 against the defendants praying for restraining all the defendants except defendant nos.5 to 7 permanently from interfering into their possession and enjoyment of the suit properties, as their possession over the suit properties, has already been declared in a proceeding under Section 145 of the Cr.P.C. vide Criminal Misc. Case No.268 of 1956 on dated 07.10.1958.
7. Having been noticed from the trial court in the suit vide T.S. No.26 of 1977, the defendant nos.1, 2, 3, 4, 8, 9, 10 and 11 filed their written statements challenging the suit of the plaintiffs denying the averments made by the plaintiffs in their plaint by taking their stands specifically Page 4 of 22 // 5 // therein that, the suit lands were originally Bhogra lands and due to vesting of the suit lands with the State, the suit lands were settled giving raiyati status in favour of the defendant nos.1 to 4 through Bhogra conversion proceeding and after settlement of suit properties through Bhogra conversion proceeding, fresh and new rights in respect of the suit properties were created in favour of the defendant nos.1 to 4. The plaintiffs are not paying the land revenue of the suit lands, but, they (defendant nos.1 to 4) are paying the same to the Government including "Dalua Kara". They (defendants) have raised the paddy crops in the year 1977, but, the plaintiffs are raising false claim on the same. The suit properties are all along in the possession of the defendants and they (defendants) are possessing the same in accordance with their respective shares, as per the allotment made in a suit for partition vide T.S. No.16 of 1970. For which, the plaintiffs have no manner of right, title, interest and possession over the suit properties, but, they (defendants) are the owners of the suit properties. Because, the suit properties have been settled in their names through Bhogra conversion proceeding after abolition of the Ex-intermediary system. For which, the suit properties have been correctly Page 5 of 22 // 6 // recorded in their names in the 4th settlement under Khata No.24, as the plaintiffs have no right, title, interest and possession on the same. Therefore, the suit for injunction of the plaintiffs against them (defendants) is liable to be dismissed with cost.
8. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether six numbers of issues were framed by the trial court in the suit vide T.S. No.26 of 1977 and the said issues are:-
ISSUES
1. Whether the plaintiffs were/are in possession of the suit lands and they have title over the suit land?
2. Whether the suit lands were Bhogra lands if the suit lands have been converted into Rayati through Bhogra conversion proceeding in the names of persons other than the plaintiffs?
3. Whether the plaintiff Debadhi Sahu is the son of Bhuban Sahu or Narsingh Sahu?
4. Whether by virtue of conversion, a special status has been conferred free from all encumbrances?
5. To what relief the plaintiffs are entitled to?
6. Is there any cause of action?
9. In order to substantiate the aforesaid relief sought for by the plaintiffs in the suit vide T.S. No.26 of 1977 against the defendants, they (plaintiffs) examined altogether four numbers of witnesses from their side including the plaintiff no.1 as P.W.1 and relied upon series of documents on their behalf vide Exts.1 to 7.
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// 7 // On the contrary, in order to defeat/nullify the suit of the plaintiffs, the contesting the defendant nos.1, 2, 3, 4, 8, 9, 10 and 11 examined two witnesses from their side including the defendant no.4 as D.W.1 and relied upon the documents vide Exts.A to J.
The defendant no.6, examined himself as a witness for himself and on behalf of the defendant nos.5 and 7.
10. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues in favour of the plaintiffs and defendant nos.5, 6 and 7 and against the defendant nos.1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 and basing upon the findings and observations made by the trial court in the issues, the trial court decreed the suit vide T.S. No.26 of 1977 of the plaintiffs on contest against the defendant nos.1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 as per its judgment and decree dated 25.07.1979 and 01.08.1979 respectively and restrained the defendant nos.1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 permanently from interfering into the possession of the plaintiffs and defendant nos.5 to 7 over the suit properties assigning the reasons that, the oral and documentary evidence of the parties established that, the suit properties were originally Bhogra lands and after vesting of Bhogra lands with Government, the suit properties were settled in favour of the plaintiffs and defendant nos. 5 to Page 7 of 22 // 8 // 7 through Bhogra conversion proceeding and thereafter, in the 2nd and 3rd settlement, the suit properties were recorded in favour of the plaintiffs and defendant nos.5 to 7, to which the defendant no.4(D.W.1) has admitted in his evidence by stating that, the suit properties were Bhogra lands and the plaintiffs were possessing the same and the suit properties have been converted into rayati lands in favour of the plaintiffs through Bhogra conversion proceeding and as per the final order passed on dated 07.10.1958 in Misc. Case No.268 of 1956 under Section 145(6) of the Cr.P.C., the possession of the plaintiffs over the suit properties was declared in presence of the defendants, for which, the plaintiffs are the owners and they are in possession over the suit properties, but, the defendants have no possession over the same and when the defendant nos.1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 are trying to create disturbances in the possession of the plaintiffs over the suit properties, then, they are required to be injuncted permanently and accordingly, as per the judgment and decree passed in the suit vide T.S. No.26 of 1977, the trial court restrained the defendant nos.1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 permanently from creating disturbances in the possession of the plaintiffs and defendant nos.5 to 7 over the suit properties.
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// 9 //
11. On being dissatisfied with the aforesaid judgment and decree dated 25.07.1979 and 01.08.1979 respectively passed by the trial in the suit vide T.S. No.26 of 1977 in favour of the plaintiffs and defendant nos.5 to 7 and against the defendant nos.1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17, they (defendant nos.1, 2, 3, 4, 8, 9, 10, 11, 12 and 13), challenged the same by preferring the 1st appeal vide T.A. No.42 of 1979 being the appellants against the plaintiffs by arraying them(plaintiffs) as respondent nos.1 to 4 and also arraying the defendant nos.5 to 7 and 14 to 17 as other respondents.
12. During the course of hearing of the 1st appeal, the learned counsel for the appellants/defendants raised a ground contending that, during the pendency of the 1st appeal vide T.A. No.42 of 1979, the suit properties have already been recorded in favour of the defendant nos.1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 by the consolidation authorities under Consolidation Khata No.39, for which, on the basis of the preparation of the consolidation RoR of the suit properties in favour of the defendant nos.1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17, the suit of the plaintiff shall abate, because, on the basis of the said consolidation RoR, their title over the suit properties has already been declared.
13. But, after hearing from both the sides, the 1 st appellate court dismissed to that 1st appeal vide T.A. No.42 of 1979 of the defendants on Page 9 of 22 // 10 // contest confirming / concurring the judgment and decree of permanent injunction passed by the trial court against the defendant nos.1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 assigning the reasons that, there is no proof to show on behalf of the appellants/defendants that, the plots covered under Consolidation Khata No.39 corresponds to any of the suit plots and much prior to the commencement of the consolidation proceeding, the judgment of the trial court in the suit was in force, for which, even if, the suit plots will have become any corresponding plot of the consolidation Khata No.39, still then, the consolidation authorities should not have nullified the decree of the civil court preparing the consolidation RoR contrary to the decree of the suit and without taking that decree of the civil court into account. For which, the suit of the plaintiffs was not abated lawfully. Therefore, the 1st appellate court did not interfere with the judgment and decree passed by the trial court in favour of the plaintiffs and against the defendant nos.1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 and finally, dismissed that 1st appeal vide T.A. No.42 of 1979 of the defendants on contest as per its judgment and decree dated 27.09.2005 and 29.10.2005 respectively.
14. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st appeal vide T.A. No.42 of 1979 of the defendant nos.1 to 4 & 8 to 17 passed on dated 27.09.2005 and 29.10.2005 respectively, they Page 10 of 22 // 11 // nd (defendant nos.1 to 4 & 8 to 17) challenged the same by preferring this 2 appeal being the appellants against the plaintiffs arraying them (plaintiffs) as respondents and also arraying rest other defendants as other respondents.
15. This 2nd appeal was admitted on formulation of the following substantial questions of law, i.e.,:-
(i) Whether a suit for permanent injunction simplicitor is maintainable in law without prayer for declaration of title and possession in view of the facts of the case?
(ii) Whether the suit as well as the appeal arising therefrom abates under Section 4(4) of the OCH and PFL Act, 1972 and whether the decision of learned lower appellate court on this point is against the settled position of law?
(iii) Whether the learned lower appellate court is justified in holding that, the decision of suit is final for all purposes and should have been respected by consolidation authorities is correct as much as the decision in the suit was under challenge in the appeal?
(iv) Whether in view of the decision of the learned consolidation authority and the final consolidation RoR, the learned appellate court should have held that, the decision of the consolidation authorities will operate as res judicata?
As, the above formulated substantial questions of law are inter- linked having ample nexus with each other as per the factual matrix and law of the suit/appeal at hand, for which, all the above four substantial questions of law are taken up together into discussion for the just decision of this 2nd appeal.
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16. When the plaintiffs have claimed their ownership and possession over the suit properties on the basis of settlement of the suit properties in their favour in the Bhogra conversion proceeding as well as on the basis of recording of the suit properties in their favour in the 2 nd and 3rd settlement along with preparation of the draft RoR of the 4th settlement in their favour and declaration of their possession in a proceeding under Section 145 of the Cr.P.C. on dated 07.10.1958 in Criminal Misc. Case No.268 of 1956, to which, the contesting defendants objected claiming their title and possession on the same on the basis of settlement of the suit properties in their favour in a Bhogra conversion proceeding and publication of the final RoR of the suit properties in their favour in the 4 th settlement.
Accordingly, disputing/denying the title of the plaintiffs over the suit properties, the defendants have challenged the suit of the plaintiffs on the ground that, the suit of the plaintiffs for injunction simpliciter is not maintainable without declaration of title.
17. Here in this suit/appeal at hand, when, it is the concurrent findings on facts by the trial court and 1st appellate court after appreciating the oral and the documentary evidence of the parties that, the plaintiffs are in possession over the suit properties being the owners thereof on the basis of settlement of the same in their favour through Bhogra conversion proceeding as per the admissions of the defendants through defendant Page 12 of 22 // 13 // no.4(D.W.1), then, at this juncture, the suit for injunction simplicitor filed by the plaintiffs without prayer for declaration of title cannot be held as not maintainable under law.
The contesting defendants have admitted to the title and possession of the plaintiffs over the suit properties during the trial of the suit through the evidence of the defendant no.4(D.W.1).
Because, the defendant no.4 (D.W.1) has deposed in his evidence by stating that, "Jujesti (Plaintiff no.1) was possessing Bhogra lands, which were converted into rayati lands in his name and the Bhogra lands of plaintiff nos.2, 3 and 4 were also converted into rayati lands in their names. There had been complete partition between Sugri and his brothers and each party possessed his separate share. Holding No.2 belong to Kairu. Holding Nos.3 and 4 belong to Kairu and Markanda, whereas holding No.5 belong to Bhuban in the 3rd settlement and the parties had no interest in the holding of others and each party possessed his own share of lands allotted to him."
On this aspect, the propositions of law has already been clarified by the Hon'ble Courts and the Apex Court in the ratio of the following decisions:-
(i) 2018(1)CLR-862 : Jyotiprava Das vrs. Nityananda Swain and others--Specific Relief Act, 1963--Section-38--
Suit for permanent injunction when defendant refuted title of the plaintiff--Maintainability--When plaintiff's title is not in dispute or under cloud, evidence of plaintiff about possession appears to be more reasonable than the evidence of defendants--Suit for permanent injunction simplicitor is maintainable.
(ii) 2021(1) CCC- 155(S.C.) : A. Subramanian and another vrs. R. Pannerselvam--Specific Relief Act, 1963--Sections 37 and 38--Suit for injunction--When the plaintiff has proved Page 13 of 22 // 14 // his right over property as well as possession over suit property, he is entitled for decree of injunction.
(iii) 2019(II) CLR-632 : Nityananda Pattnaik(Dead) through LRs and others vrs. Smt. Bisakha Dei--Specific Relief Act, 1963--Section 38--Suit for injunction without declaration of title--When the title of the plaintiff is not under a cloud of suspicion, simple suit for permanent injunction is maintainable.
(iv) 2022(2) CCC-131 (Karnakata) : Chennaiah @ Doddachennaiah Since Deceased By His Lrs. And Anr. vrs. Bylappa, Since Dead By Lrs. And Ors.--Specific Relief Act, 1963--Section-38--Suit for permanent injunction simplicitor--Its maintainability--Where a plaintiff is in lawful or peaceful possession of property and his possession is threatened, suit for injunction simplicitor would lie--Prayer for declaration would be necessary only if there is a cloud cast on the title of the plaintiff.
(v) 2022(4) CCC(S.C.)-158 : Sukhbiri Devi and others vrs. Union of India and others--Indian Evidence Act, 1872-- Sections 17, 18 and 58--Admission--Admission made by a party in his pleading is admissible against him proprio vigore--Indian Evidence Act, 1872--Sections 17, 18 and 58--Statements by a party in a proceedings are admissions. Facts admitted need not be proved. (Paras- 16 and 17)
(vi) AIR 2012 S.C.-3320 : Ahmedsaheb (dead) by LRs. and others vrs. Sayed Ismail--Indian Evidence Act, 1872-- Sections 17 and 18--An admission of a party in the proceedings either in the pleadings or oral is the best evidence and the same does not need any further corroboration.
(vii) 2009(2) Apex Court Judgments-673(S.C.): Bhuwan Singh vrs. M/s. Oriental Insurance Company Ltd.--Evidence Act, 1972.--Section 58.--Facts admitted need not be proved.
(viii) 2006(2) OLR-458, 2006(2) CLR-348: Tarini Kanta Giri vrs. Bhajananda Giri and others--Indian Evidence Act, 1872--Facts admitted by a party need not be proved. (Para-3)
(ix) III(2007) CLT-49(S.C.) : M. VENKATARAMANA HEBBAR(D) BY LRS. vrs. M. RAJAGOPAL BEHHAR AND OTHERS--Evidence--Facts admitted in terms of Section 58 Evidence Act, need not be proved.(Para-12)
(x) 2015(2) CCC-414 (A.P.): Parasagani Venkaiah and another vrs. Pandi Prasad and others--Evidence Act, 1872.-- Sections 17, 18 and 58.--When facts admitted by respondents (defendants)--No need to prove same.
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(xi) 2015(3) Civil Law Times-185 (Gauhati) : Dwaraka Prasad Agarwalla vrs. Legal Heirs of Nil Kamal Bezba Ruah and others--Indian Evidence Act, 1872-- (para-21)--An admission of facts is best evidence, that can be gainfully pressed into service by opposite side.
(xii) AIR 1966 Orissa-98 : Purna Chandra Das vrs. Chandramani Dibya and others--A party would be bound on its admission.
(xiii) 48(1979) CLT-Notes-105 : Sridhar Kantha vrs. Sarojini Devi and others--(A.H. O. No.73, 1975--Decided on 23rd July, 1979--[R.N. Misra & P.K. Mohanty, JJ.)-- Judgment delivered by R.N. Misra, J.).
Evidence Act, 1872--Section-18--Admission--It is a good piece of evidence against the person made it--That party would be bound by its admission.
(xiv) 2004(1) MPLJ-225 : Awadh Bihari Asati and others vrs. Shyam Bihari Asati and others--Indian Evidence Act, 1872--Sections 17 and 18--Admissions made by a party is a best evidence, on which, other party can rely upon.
(xv) 2023(1) CCC (Kolkota)-99 : Bhargav Chatterjee and another vrs. Infinity and Associates and another--Admission of a party in proceeding is the best evidence and same does not need any further corroboration.
18. It is the concurrent findings on facts by the trial court and 1st appellate court on appreciation of oral and documentary evidence of the parties that, the suit lands were originally Bhogra lands and after vesting of the said Bhogra lands to the Government, the said suit lands were settled as rayati lands in favour of the plaintiffs and defendant nos.5 to 7 through Bhogra conversion proceeding. The Jamabandi of 2nd and 3rd settlement vide Exts.11 and 10 in respect of the suit properties vide Khunti Nos.3 and 4 and holding nos.3 and 4 were Page 15 of 22 // 16 // prepared in favour of the plaintiffs and defendant nos.5 to 7, which has been admitted by the contesting defendants through the evidence of defendant no.4 (D.W.1) during trial before the trial court.
Because, the defendant no.4 (D.W.1) has deposed in his evidence by stating that, "Jujesti (Plaintiff no.1) was possessing Bhogra lands, which were converted into rayati lands in his name and the Bhogra lands of plaintiff nos.2, 3 and 4 were also converted into rayati lands in their names. There had been complete partition between Sugri and his brothers and each party possessed his separate share. Holding No.2 belong to Kairu. Holding Nos.3 and 4 belong to Kairu and Markanda, whereas holding No.5 belong to Bhuban in the 3rd settlement and the parties had no interest in the holding of others and each party possessed his own share of lands allotted to him."
19. The above evidence of the defendant no.4 (D.W.1) is clearly and unambiguously going to show that, the parties of all the branches of their genealogy were separated from each other much prior to 2nd and 3rd settlement.
20. When it is the own admission of the defendant no.4 (D.W.1) as stated above in his evidence during trial before the trial court that, the suit lands were originally Bhogra lands and after vesting of the said Bhogra lands, i.e., the suit lands with the Government, the said suit lands were settled in favour of the plaintiffs and defendant nos.5 to 7 as raiyati lands of the suit properties were collected by the State from the plaintiffs accepting them (plaintiffs) as the tenants / raiyats of the suit lands and when as per the records of the Page 16 of 22 // 17 // 2nd and 3rd settlement vide Exts.11 and 10, the suit properties were recorded in favour of the plaintiffs and defendant nos.5 to 7 and when the draft RoR of the 4th settlement in respect of the suit properties was prepared in favour of the plaintiffs and defendant nos.5 to 7, then at this juncture, the finally published RoR of the 4th settlement in respect of the suit properties in favour of the defendant nos.1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 is held as baseless due to lack of foundation/basis for the preparation of same in their favour, as no document or record has ever been filed or proved on behalf of the above contesting defendants to establish their claim relating to settlement of the suit properties in their favour through any Bhogra conversion proceeding. In addition to that, the possession of the plaintiffs and defendant nos.5 to 7 over the suit properties also finds support through declaration of their possession over the suit properties on dated 07.10.1958 in a proceeding under Section 145 of the Cr.P.C. vide Criminal Misc. Case No.268 of 1956.
21. The conclusions drawn above by both the fact finding courts, i.e., trial court and 1st appellate court holding the 4th settlement RoR of the suit properties in favour of the defendant nos.1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 as baseless finds support from the ratio of the following decisions:.-
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// 18 //
(i) 1961 CLT Note-45 : Orissa High Court , First Appeal No.63 of 1956, Govinda Naik (Plaintiff) vrs. Sankar Patro & others (defts.)--(Barman & G.C. Das, JJ.)--D/20-10-1960 Evidence--Entry in the Khatian--Value of.
If the very foundation of the entry in the khatian does not exist, then the presumption in favour of its correctness loses its value altogether.
(ii) 2021(II) OLR (S.C.)-904 : Prabhagiya Van Adhikari & Awadh Van Prabhag vrs. Arun Kumar Bharadwaj(Dead) Thr. Lrs. and others--RoR of revenue record even prepared by the consolidation authorities without any basis or without any supporting documents or writing from any competent authority, the same shall not create any right in favour of the recorded persons.
22. As per the discussions and observations made above, when it is held on the basis of the admissions of the contesting defendants through the evidence of the defendant no.4(D.W.1) coupled with the documents relied by the plaintiffs that, the title of the plaintiffs and defendant nos.5 to 7 over the suit properties is not under cloud and their possession over the suit properties has been established, then at this juncture, by applying the principles of law enunciated in the ratio of the decisions of the Hon'ble Courts and the Apex Court referred to (supra) in para nos.17 and 21 of this judgment, it cannot be held that, the suit for injunction simpliciter filed by the plaintiffs in respect of the suit properties is not maintainable under law.
23. The 1st appellate court has specifically held in Paragraph-11 of the judgment of T.A. No.42 of 1979 that, though the Consolidation Khata No.39 in favour of the defendants containing 27 plots measuring Ac.10.950 decimals was marked as Ext.A on behalf of the Page 18 of 22 // 19 // appellants/defendants in that 1st appeal for abatement of the suit of the plaintiffs under Section 4(4) of OCH and PFL Act, 1972, but, the 1st appellate court discarded such contentions of the defendants assigning the reasons that, the defendants/appellants have failed to produce and prove any plot index to connect any of the plots under Consolidation Khata No.39 with any of the suit plots for bringing nexus / connection between the suit plots and plots under consolidation Khata No.39 and as the judgment of the trial court was pronounced in the suit much prior to the commencement of the consolidation operation.
Therefore, the 1st appellate court held that, the suit of the plaintiffs shall not abate and the decree for injunction passed by the trial court in favour of the plaintiffs and defendant nos.5 to 7 and against the defendant nos.1 to 4 and 8 to 17 defendants is not beyond the jurisdiction of the civil court.
24. The conclusions drawn above by the 1st appellate court for non- abatement of the suit of the plaintiffs vide T.S. No.26 of 1977 and for non-treating the subsequent consolidation RoR under Consolidation Khata No.39 as res judicata for the suit and appeal finds support from the ratio of the following decisions:-
(i) 1986(2) OLR-566 : Bishnu Mohan Mallick vrs.
Dhruba Naik (D.B.) Paras-6 and 8--OCH and PFL Act, 1972
--Sections 4(4) and 51 --Abatement of a suit under Section 4(4) of the Act and Section 51 of the Consolidation Act is not an automatic process and no abatement takes place until the order to that effect has been passed. If no objection is raised in Page 19 of 22 // 20 // the suit for abatement and decree is passed, it is valid decree and objection to its executability is not available to be raised at the execution stage.
(ii) 1993(2) OLR-505(D.B.) : Smt. Phula Dei and another vrs. Dibakar Mohapatra and others--OCH and PFL Act, 1972--Sections 4(4) and 51--Notification under Section 3 of the Act was made in respect of the suit property during pendency of second appeal--This fact was not brought to the notice of the Court--Decree passed--During execution of the decree, objection as to abatement was taken--Held, the decree is valid and is executable--If no objection is taken, decree passed is valid.
(iii) 47(1979) CLT-494 : Puni Bewa and another vrs. Antanta Sahoo and others --OCH and PFL Act, 1972 -- Section 4(4) --The Consolidation Authorities have no power to grant relief for permanent injunction. The Civil Court's jurisdiction to grant such relief is not expressly or impliedly barred under the provisions of the Act.
(iv) 1985(1) OLR-464 : Hara Prasad Das and others vrs. Ramballav Das and others--The consolidation authorities should strictly would interpret the judgment and decree of the Civil Courts, which has become final inter-parties. They should not interpret them in a manner so as to take away their intended effect. They should remember that, concluded judgment and decrees of the Civil Courts inter-parties cannot be questioned by any authority, much less the consolidation authorities. (Para-
4)
25. Here in this suit/appeal at hand, when the consolidation operation was started much after the judgment and decree passed by the trial court in the suit vide T.S. No.26 of 1977 in favour of the plaintiffs and defendant no.5 to 7 and against the defendant nos.1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 restraining them permanently from interfering into the possession of the plaintiffs and defendant nos.5 to 7 over the suit properties, as they (plaintiffs and defendant nos.5 to 7) are possessing the same being the owners thereof and when no petition for abatement of the Page 20 of 22 // 21 // suit as per Section 4(4) of the OCH and PFL Act, 1972 was filed by the contesting defendants and when no order for abatement of the suit has been passed either by the trial court or by the 1st appellate court and when the defendants have not been able to establish the correspondences of consolidation plots under Consolidation Khata No.39 with any of the suit plots as per the findings of the 1st appellate court on facts through appreciation of the evidence of the parties and when, it is the settled propositions of law in view of the ratio of the decisions reported in 2023(3) Civil Court Cases-653 (Rajasthan) Mahaveer and others vrs. Omprakash that, findings of facts recorded by the 1st appellate court after appreciation of evidence cannot be interfered with in the 2nd appeal, then at this juncture, by applying the principles of law enunciated in the ratio of the decisions referred to (supra), there is no justification under law for making any interference with the concurrent findings on facts by the trial court and 1st appellate court against the defendant nos.1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 through this 2nd appeal filed by the appellants/defendants. For which, there is no merit in the 2nd appeal of the appellants(defendants). The same must fail.
26. In result, this 2nd appeal filed by the appellants/defendants is dismissed on contest, but without cost.
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27. The judgment and decree passed by the trial court in T.S. No.26 of 1977 and the confirmation of the same by the 1 st appellate court in T.A. No.42 of 1979 are confirmed.
( A.C. Behera ) Judge Orissa High Court, Cuttack The 20th of May, 2024/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 20-May-2024 12:30:22 Page 22 of 22