Orissa High Court
Bishnu Charan Mohapatra And Ors. vs Krushna Chandra Mallick And Ors. on 6 January, 2004
Equivalent citations: 97(2004)CLT329
Author: M. Papanna
Bench: M. Papanna
JUDGMENT M. Papanna, J.
1. This appeal is brought by unsuccessful plaintiffs assailing reversing judgments and decrees of learned trial Judge in T. S. No. 99/80 and learned Sub-Judge, Jagatsinghpur in T.A. No. 1/87, respectively.
2. Plaintiffs in the suit are appellants in the First Appeal and also herein. Likewise defendants are respondents in the First Appeal and also herein.
3. Delineation of relevant facts of the case is given below for the purpose of adjudication of the appeal :
Suit land is ancestral property of plaintiffs who have claimed to be in possession of the said property with some trees thereon adjacent to house of defendants who, taking advantage of this, take away fruits from the said trees which they cut. Defendants have also initiated O.L.R. Proceedings claiming tenancy right over the land in question. Plaintiffs being obliged, brought the suit for declaration of their right, title and confirmation of possession over the land and also permanent injunction against defendants who in turn put in written statement of defence challenging maintainability of the suit ab-initio particularly when O.L.R. proceedings under Section 9 of the O.L.R. Act (for short 'Act') centring round the disputed land was pending between the parties by the time suit was filed before learned Munsif,. Jagatsinghpur. Further plea of defendants in that suit is barred by law of limitation as they have perfected their title to the suit land by way of adverse possession.
4. Judgment of learned Munsif shows that he has framed seven issues out of parties' pleadings. First he has taken up Issue No. 6 for decision. His finding on Issue No, 6 is that plaintiffs are in continuous possession of the suit land. He has also held that defendants never possessed suit land by amalgamating it with their homestead land nor they have acquired title to the said land on adverse possession. But In respect of Issues 1 and 3, his findings have gone in favour of defendants and against plaintiffs. Learned Munsif has not answered Issues 2, 4 and 5 because plaintiffs have not bothered to press the said issues.
5. Issue No. 7 in the suit is, whether plaintiffs are entitled to reliefs sought for. Learned Munsif has held that plaintiffs have prima facie right, title, interest and possession over the suit land. But he has also held that suit is barred by Section 37 of the Act. On this finding, he refused to grant relief of permanent injunction and dismissed the suit accordingly.
6. Being aggrieved by judgment and decree of learned Munsif, Jagatsinghpur, present appellants preferred appeal in Title Appeal No. 1 of 1987 before learned Sub-Judge, Jagatsinghpur who in turn dismissed the appeal with cost.
7. Shri Bidhayak Patnaik appearing for appellants urged that learned Munsif has gone wrong in holding that the suit is not maintainable. His specific contention is, when O.L.R. proceedings between the parties centres round the disputed land and was finally terminated in favour of appellants and against respondents, the impugned judgment and decree of learned Munsif are liable to be set aside. According to him, provisions of Section 67 of the Act are not attracted in the facts and circumstances of the case.
8. Shri G. C. Patnaik, learned Counsel appearing for respondents, on the other hand, supported the impugned judgments and decrees of learned Courts below.
9. Reversing judgments of the learned Courts below are gone through. In fact, O.L.R. proceedings under Section 9 of the Act was pending before the Revenue authority when T.S. No. 99/80 was instituted by the plaintiffs before learned Munsif, Jagatsinghpur. Ext. 4 is order of the Revenue authority passed in O.L.R. Case No. 1167/76. The said order together with Ext. B, order of the revisional Court in O.L.R. Revision No. 169/83 is also gone through carefully. It is clear from the said document that suit land was involved in O.L.R. Proceedings. Suit is for permanent injunction.
10. The crux is whether suit for permanent injunction pending in a Civil Court is barred by Section 67 of the Act particularly when a proceedings under O.L.R. Act centring-round the disputed land is pending before the O.L.R. Authority. Section 67 of the Act deals with bar of jurisdiction of the Civil Court. It says that no Civil Court shall have jurisdiction to try and decide any suit or proceedings so far as it relates to any matter which any officer or other competent authority is empowered by or under this Act to decide Settled position of law is that Revenue Officer, who has jurisdiction to decide the aforesaid question of law involved in the suit, is vested with power to grant relief of injunction in respect of matters within his cognizance. It is clear from the provisions of Section 67 of the Act that Civil Court has no jurisdiction to try and decide any suit or proceedings, so far as it relates to any matter which any officer or other competent authority is empowered by or under the said Act to decide. So it cannot decide the case which is clearly provided under the notification issued by the President under Article 341 of the Constitution.
11. In Kanhu Mallik and Anr. v. Smt. Gedi Dei and Ors. reported in Vol. 44 (1977) CLT 56-1, this Court has taken the view that the Revenue Officer who has the jurisdiction to decide the questions involved in the suit is vested with the power to grant relief of injunction In respect of matters within his cognizance. That being so, the'Civil Court cannot also have the jurisdiction to grant injunction prayed for by the plaintiffs as that would be clearly barred under Section 67 of the Act. This Court has relied on the decision reported in Smt. Gouri Dei and Anr. v. Agadhu Sahu and Anr. reported in 37 (1971) CLT 687 while disposing of the case referred to above. In the case at hand, plaintiffs prayed for permanent injunction against defendants in respect of the suit property, which was the subject matter of a proceedings under Section 9 of the O.L.R. Act. As such, learned Munsif held rightly that since O.L.-R. Authority has power to grant such relief of injunction in respe,ct of the suit property involved in the O.L.R. Case, he has no jurisdiction to entertain the suit which he dismissed accordingly. No doubt, (3.L.R.. Revision No. 169/83 was terminated against defendants and in favour of plaintiffs but what is trUe is that when the O.L.R. proceedings was sub-judice before O.L.R. Authority, the suit in question was instituted before the learned Munsif and the Civil Revision which is said to be terminated in favour of the plaintiffs was nothing but continuation of the said suit. In such a view of the matter, learned Munsif had no jurisdiction to entertain the suit which was hit by provisions of Section 67 of the Act.
12. In another decision of this Court rendered in 60 (1985) CLT 543 (Krushna Kumari Bewa v. Kendrapara Co-operative Land Development Bank), following view has been taken :
"From these provision it is clear that the reliefs sought in the suit were expressly vested with the Revenue Officer under the provisions of the O.L.R. Act and under Section 67, the jurisdiction of the Civil Court to determine such matters was expressly excluded. The decree of the Civil Court passed in ignorance of the bar of jurisdiction, under Section 67 of the Act was therefore, null and void. The party evicted by such a decree, the petitioner in the present case, could raise the plea of the decree being a nullity in the execution case."
13. Therefore, in the light of settled position of law discussed above, I do not agree with the contentions raised by learned Counsel appearing for appellant. In my considered view, no illegality has been committed by the learned Munsif, Jagatsinghpur in holding that the suit is not maintainable. Further, learned Civil Judge (Senior Division) as First Appellate Court, has taken proper view of provisions of Section 67 of the O.L.R. Act and dismissed the First Appeal.
14. In the result, judgments and decrees under challenge in this appeal are allowed to be maintained in the Second Appeal before this Court for the reasons recorded above. Appeal being devoid of merit is liable to be and is hereby dismissed. However, in the facts and circumstances of the case, there shall be no order as to cost.