Orissa High Court
Bamadev Swain And Anr. vs Sunakar Swain And Anr. on 13 May, 1986
Equivalent citations: 1986(I)OLR666
JUDGMENT
Agrawal, C. J.
1. This application in revision by two of the defendants is against the adverse order passed by the trial Court on the application for recording an order of abatement of the suit under Section 4(4) of the Orisaa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972.
2. The case of the plaintiff is that he acquired half of the suit lands in a partition suit, but during the recent consolidation operation he came to know that defendant No. I had sold the entire plot No. 2269 to defendant Nos. 2 and 3 who also got their names recorded in respect of the said plot. Accordingly, the suit was for cancellation of the sale deed in question which is dated 23-2-1977.
The defendants appeared and filed a petition contending that by virtue of the provisions mentioned above the suit could not proceed in the Civil Court. The learned Munsif, however, has overruled the contention on the ground that since the plaintiff wanted to avoid the sale deed, in other words, since the transaction Is voidable, which required final adjudication by the Civil Court, the suit was maintainable.
3. In this Court, learned counsel for the petitioners has placed reliance on the case of Gorakh Nath Dube v. Hari Narain Singh and others, AIR 1973 Supreme Court, 2451 followed In the case of Sridhar Mohanty v. Kamal Kumar Agarwalla, 57 (1984) CLT 417. in support of his submission that a transaction of this nature was not voidable but was void and, therefore, the matter could be examined only by the Consolidation authorities and not by the Civil Court.
In the Supreme Court case, the situation was that the plaintiff had challenged the sale of his half share by his uncle as invalid and inoperative. It was observed that such a claim could be adjudicated upon by the Consolidation Courts and, therefore, the suit of the plaintiff could abate under the analogous provisions contained in U. P. Consolidation of Holdings Act.
Similarly the position in the Orissa case where it was reiterated that an alienation by the person without any authority was void and not voidable and, therefore, the Consolidation authorities would be deemed to be invested with the jurisdiction to adjudicate.
Applying the above principles to the facts of the present case, it was submitted that the case of the plaintiff being that the transfer of the land beyond his share by defendant No. 1 in favour of defendant Nos. 2 and 3 was invalid and not binding upon him and, therefore, such a transaction was squarely covered and within the mischief of the observation made in the two decisions cited above.
4. Learned Advocate appearing for the plaintiff-opposite party wanted to wriggle out from the ratio of these authorities by making a submission that the nature of the land itself was non-agricultural, i. e., homestead, and thus, the land was non-consolidable. Thus, outside the mischief of the Act and, therefore, the suit Was maintainable in the Civil Court.
The submission of the learned Advocate for the plaintiff-opposite party is entirely misconceived apart from the fact that the point does not appear to have been raised before the trial Court. In the written statement, this assertion has been controverted and the defendants have categorically stated that paddy crop was being grown on the suit land. In that view of the matter the contention of the plaintiff cannot be accepted.
5. In the result, this application must succeed and the impugned order set aside. The plaintiff's suit is held to be not maintainable in the Civil Court as being hit by the provisions of Section 4 (4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972.
There would be no order as to costs.