Orissa High Court
Panchu Pradhan vs Ramachandra Sethi And Ors. on 23 August, 2002
Equivalent citations: 2002(II)OLR392
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. Defendant No. 2 is the appellant before this Court against a confirming judgment.
2. Respondents 1 to 4 filed a suit for permanent injunction. The suit was compromised as against defendants 1 and 3 and allowed: on contest against the defendant No. 2. The appeal preferred by the defendant No. 2 before the Additional Suborlinate Judge, Puri having been dismissed, the present appeal has been filed.
3. The case of the plaintiff-respondents 1 to 4 is that the father of the plaintiffs 1 to 3 and husband of plaintiff No. 4 Halu Sethi was the owner in possession of the suit properties described in Schedule-A of the plaint. The record of rights in respect of the suit land stands recorded in the name of Halu Sethi. After death of Halu Sethi, the plaintiffs are possessing the same peacefully and the defendants have got no right, title and, interest over the same. Further allegation in the plaint is that the defendants are trying to forcibly dispossess the plaintiffs from the suit land and are threatening to cut and remove the coconut trees standing over the same as a result of which the plaintiffs were forced to file the suit for permanent injunction.
4. Defendants 1 to 3 compromised the dispute with the plaintiffs and only defendant No. 2 contested the suit and filed a written statement. The case of the defendant No. 2 is that Halu Sethi was never in possession of 4 decimals of land out of 8 decimals from plot No. 469 as described in Schedule-A. He purchased the said portion from the defendant No. 1 on 13.9.1972 under a registered sale deed and took possession thereof. After taking possession he has installed deity Laxminarayan Jew by constructing a temple over the same. The further plea of the defendant No. 2 is that he has also perfected his title by adverse possession and since the plaintiffs have filed the suit only praying for permanent injunction without praying for declaration of title and for cancellation of sale deed dated 13.9.1972, the suit is not maintainable. The claim of possession by the plaintiffs was also denied in the written statement.
5. On the above pleadings the trial Court framed ten issues and found title and possession over the suit properties with the plaintiffs. The claim of adverse possession by the defendant No. 2 was not accepted and the suit was decreed against him. In appeal, the defendant No. 2 apart from challenging the findings on merit, took a specific stand that a Misc.. Case having been filed by the plaintiffs under Section 23 of the Orissa Land Reforms Act before the competent Revenue Officer in respect of the suit land. Section 67 of Orissa Land Reforms Act bars the jurisdiction of the Civil Court in granting an order of permanent injunction and accordingly, the suit is not maintainable. The lower appellate Court considered the same and rejected the plea of defendant No. 2 on the ground that so far as Section 23 of the O.L.R. Act is concerned, the revenue authorities have no jurisdiction to allow the prayer of permanent injunction and accordingly Section 67 of the Act shall not stand as a bar for the Civil Court to entertain the suit only for permanent injunction. So far as other findings of the trial Court are concerned, the lower appellate Court confirmed the same and dismissed the appeal.
6. At the time of admission of the second appeal, this Court formulated the following substantial questions of law as enumerated in ground Nos. 'A', 'B', 'E' and 'G' of the memo of appeal for adjudication at the time of hearing which are quoted below :
"(A) For that the learned Courts below committed a serious error of law in not holding that the suit is barred under Section 67, O.L.R. Act since they have held that the sale by Halu Sethi in favour of defendants 1 and 3 dated 22.3.68 and subsequent purchase by defendant No. 2 by sale deed dated 13.9.72 from defendants No. 1 & 3 are void since Halu Sethi is a person belonging to Scheduled Caste and defendants No. 1 & 3 (proforma respondents No. 5 & 6) are non-scheduled caste, (obviously in view of the provisions of Section 22, O.L.R. Act) .and in fact a proceeding under Section 23, O.L.R. Act was initiated by the plaintiffs (O.L.R. Case No. 3 of 1983) which is now pending in appeal (Ext. C) and the adjudication of the same matter by the Civil Court is specifically barred under Section 67, O.L.R.Act and this serious error has vitiated the judgments and decrees passed by the learned Courts below.
(B) For that assuming though not admitting that the sale by Halu Sethi in 8 decimals in favour of defendants No. 5 and 6 by registered sale deed dated 22.3.68 out of Which defendants No. 5 and 6 sold 4 decimals in favour of defendant No. 2 (appellant) by registered sale deed dated 13.9.72, is void, the possession of defendants No. 5 & 6 from 22.3.68 and of defendant No. 2 (appellant) from 13.9.72 was adverse to the plaintiffs from the inception and both the learned Courts below committed a serious error of law in rejecting the claim of the appellant on that account on the fantastic ground that since the appellant has claimed title on the basis of the sale deed in his favour, he cannot take the inconsistent plea that he has acquired title by adverse possession ignoring the well settled position of law that in case a person claims title on the basis of a document of transfer which is void his possession under the document is adverse from the inception and he acquires the same title after remaining in possession for the statutory period of 1st years.
(E) For that the learned lower Court have committed a serious error of law and record in holding that there is no evidence on the side of the defendants that the property mentioned in "A" Schedule of the written statement taken under the suit schedule land since the D.Ws. and particularly P.W.1 (D-2) has clearly stated that the suit schedule lands are the same as schedule "A" of the written statement.
(G) For that the learned Courts below should have dismissed the suit on the ground that the plaintiffs not having made a prayer for setting aside the sale deeds in favour of defendants No. 1 and 3 and 2, the suit is not maintainable due to the bar under Specific Relief Act which had been specifically pleaded in the written statement."
7. The learned counsel for the appellant at the time of argument confined his case to bar of jurisdiction of the Civil Court in entertaining the suit for permanent injunction as prescribed in Section 67 of the Orissa Land Reforms Act. The learned counsel submitted that in a suit for permanent injunction the Court is required to look into title and such question can be decided by the revenue authorities in exercise of the jurisdiction under the Act and. therefore, the Civil Court will not be competent to entertain the suit and Section 67 of the Act stands as a bar. Reliance was placed on some decisions of this Court by the learned counsel which I shall deal with later on. The learned counsel appearing for the plaintiffs-respondents 1 to 4 on the other hand, submitted that so far as Section 23 is concerned, the revenue authorities have jurisdiction only to declare a particular sale deed null and void for non-compliance of the provisions under Section 22 of the Act and only after such declaration is made, the revenue authorities can restore possession. There being no power left with the revenue authorities in exercise of the powers under Section 23 of the Act to make any interim arrangement a suit for permanent injunction shall be maintainable and Section 67 of the Act will not stand as a bar.
8. The first decision referred to by the learned counsel for the appellant is the case of Smt. Gouri Dei and Anr. v. Agadhu Sahu and Anr. reported in Vol. 37 (1971) CLT 687. In the said case the dispute was regarding relationship of landlord and tenant within the purview of Section 15 of the Act. This Court considering the powers of the Revenue Officer as prescribed under Sub-sections 5 and 7 of Section 15 of the Act held that even in a suit for permanent injunction where the question relates to relationship of landlord and tenant, Section 67 is a bar and the Civil Court has no jurisdiction to entertain the suit. The Court arrived at the conclusion considering the powers of the Revenue Officer under Sub-sections 5 and 7 of Section 15 where the Revenue Officer is competent to make interim arrangement and in case of necessity is empowered to put the tenant in possession which is in the nature of grant of injunction. The second case referred to by the, learned counsel for the appellant is the case of Dama Swain v. Gangadhar Mohapatra reported in Vol. 61 1986 (I) OLR 268, (1986) CLT 327. In the aforesaid decision the suit was for permanent injunction and the dispute between the parties relates to Section 16 of the O.L.R.Act. Relying on the decision of this Court in the case of Smt. Gouri Dei (supra), this Court in the aforesaid decision also held that Section 16 of the O.L.R.Act shall operate as a bar and the suit for permanent injunction shall not be maintainable. This Court specifically held as follows :
"Before the bar in the aforesaid provision can be held to operate in a particular case, it has to be established that the subject-matter of the dispute is one which an officer or any other competent authority is empowered by or under the Act to decide. The principle underlying the provisions of the section is to avoid parallel enquiries being held by the Revenue Authorities as well as by the Civil Court."
The learned counsel for the appellant strenuously relying on the said decision submitted that in dispute under Section 16 of the Orissa Land Reforms Act there is no power left with the revenue authorities to grant injunction and even considering the same this Court held that a suit for permanent injunction shall not be maintainable, therefore even in case of a dispute under Section 23 of the Act, the same principle shall apply and suit for permanent injunction shall not be maintainable. The learned counsel for the respondents in this connection, drew the attention of the Court to an earlier order passed in this appeal. From the order dated 28.11.1990 passed in this case it appears that at the time of hearing of the appeal the Hon'ble Judge being confronted with the aforesaid two decisions referred the matter to the Larger Bench for consideration. In the referring order also the Hon'ble Judge took note of three more decisions relating to Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1973 where a similar provision of bar of jurisdiction of the Civil Court is available. The matter was placed before a Division Bench of this Court. The Division Bench was of the view that the point involved in the case has been conflicted by two judgments passed by the learned single Judges of this Court and there was no conflicting decisions. On the aforesaid observation, the matter was remitted back for hearing by a single Judge.
9. Coming to the question as to whether there is any conflict of opinion in the aforersaid two decisions, the Division Bench of this Court has made it clear that there is no conflict and the question in dispute has been settled in the aforesaid two decisions. Though in the case of Dama Swain (supra) this " Court referring to Section 16 of the O.L.R.Act also held that the suit for permanent injunction shall not lie, the observation by the Court as indicated earlier is the test for deciding as to whether a suit for permanent injunction is maintainable in respect of dispute which relates to Section 23 of the O.L.R.Act. In this connection, another decision of this Court in the case of Sridhar Mohanty v. Kamal Kumar Agarwalla reported in Vol. 57 (1984) CLT 417 may be referred. This case relates to the provisions contained in the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. Section 51 of the said Act bars the jurisdiction of the Civil Court in deciding the dispute in respect of all matters in respect of which an officer or authority empowered under that Act is competent to decide. Section 67 of the O.L.R.Act also provides a similar provision. This Court while considering the Section 51 of the Consolidation Act held as follows:
"Where the grant of injunction depends upon the determination of the title a suit for mere injunction may not be maintainable. It is not possible to lay down any formula or an exhaustive list of the nature of cause where a suit for injunction simpliciter is maintainable. Each case is to be decided in the facts of its own keeping in view the judicial precedence and guidelines given in cases dealing with the subject. It is equally true that merely because the question of title or possession may be required to be gone into incidentally would not make the suit for injunction simpliciter incompetent. Therefore, in order to determine whether the suit for injunction simpliciter is maintainable or not the substance of the pleadings has to be looked into and not merely the form of pleadings of the plaintiff alone or the prayer made by him."
10. Another decision of this Court may be referred to in this connection in the case of Adhikari Gopinath Das v. Nirmal Chandra Mohanty and Ors. reported in AIR 1979 Ori. 159. This Court in the aforesaid case decides as follows :
"Suit for injunction restraining defendants from interfering with plaintiffs possession of land falling within consolidation area -- Suit remains in abeyance -- No permanent injunction but temporary injunction can be granted."
11. A Full Bench of this Court In the case of Dhuruju Mallik @ Duryodhan Swain v. Krupasindhu Swain reported in Vol. 58 (1984) CLT 359, 1984(1) OLR 687 (FB) while considering Sections 4 and 51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act also held as follows :
"If the matter can be gone into by consolidation authorities, then the suit in respect of the same would abate under Section 4 (4) of the Act. The intention of the legislature is quite clear and is in conformity with the well recognised principle that two forums should not be dealing with the same matter, as in that case there is likelihood of inconsistent situation arising.
Where the grant of injunction depends upon the determination of the right or interest in any land situated within the consolidation area, the suit for permanent injunction may not be maintainable. In order to determine whether the .. suit for injunction simplicitor is maintainable or not, the substance of the pleadings has to be looked into and not merely the form of pleadings of the plaintiff alone or the prayer made by him. Each case is to be decided in the facts of its own."
12. In view of the decisions referred to above, it is clear that the Court has to look into the pleadings of the parties as well as prayer made in the plaint in order to come to a conclusion as to whether the authorities under the O.L.R.Act are competent to decide the dispute and only in the event when the Court comes to a conclusion that the dispute is of such a nature that it can be decided by the authorities under the O.L.R.Act, it shall not entertain a suit for injunction. Therefore, when the question to be decided is not covered under the powers of the authorities of the O.L-R-Act, the suit for permanent injunction shall be maintainable. The bar under Section 67 of the O.L.R.Act shall operate depending on facts of each case. So far as the present appeal is concerned, from the judgment of the lower appellate Court it appears that not only the suit for permanent injunction was filed by the respondents but an application under Section 23 of the O.L.R.Act was filed before the competent Revenue Officer to declare the sale deed dated 13.9.73 executed in favour of defendant No. 2 as null and void. By the time the appeal was heard by the lower appellate Court, the petition filed under Section 23 had been allowed and the sale deed had been declared as null and void. When the matter was heard before this Court, it was submitted by the learned counsel for the appellant that an appeal was filed against the order of the Revenue Officer allowing the application under Section 23 of the Act and in appeal the authority found that on the disputed land a temple has already been constructed and deity Laxminarayan Jew has been installed and on such finding declined to pass any order for restoration of possession. It was further contended , that though a revision was filed by the plaintiffs-respondents the same was dropped because of pendency of this appeal. The said order has become final as the plaintiffs-respondents have not challenged the revisional order in any other forum whatsoever. Now the facts as available on record and admitted by both sides are that though the sale in favour of defendant No. 2 is null and void, possession cannot be restored to the plaintiffs-respondents as a temple has been constructed on the disputed land and deity Laxminarayan has been installed therein.
13. While I hold that the suit is maintainable, on consideration of the changed situation with regard to possession, the judgment and decree granting permanent injunction restraining the defendant No. 2 from interfering with the possession of the plaintiffs is set aside.
Considering the facts and circumstances, the appeal is allowed to the aforesaid extent.