R.N. Misra, C.J.
1. Plaintiff's suit for permanent injunction restraining the defendants from interfering with her possession and enjoyment of the property having been declared to have partly abated by the trial Court under the provisions of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (Orissa Act 21 of 1972) (hereinafter referred to as the 'Act') she has filed this revision application challenging the order of partial abatement. When the revision petition came up for hearingbefore one of us, it was directed to be placed before a Division Bench as some single Judge decisions to which we shall make reference later took contradictory views oa the point in issue.
2. The suit property covered both homestead and other lands. So far as homestead property is concerned, the learned Munsif held that there would be no abatement and accordingly in the impugned order he directed the suit to continue in regard to plots Nos. 534, 538, 539 and 540. He, however, directed the suit to stand abated so far as Khata Nos. 152, 249, 501, 537 and 271 are concerned.
3. There is no dispute that there is a notification under Section 3 of the Act in which the disputed properties are included. Section 4 of the Act makes provision as to the effect of the notification. Sub-section (4) thereof provides : --
'Every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceeding could be or ought to be started under this Act, which is pending before any Civil Court, whether of the first instance or appeal, reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending, stand abated :
Counsel for the petitioner contends that a suit for permanent injunction cannot abate under the provisions of the Orissa Act 21 of 1972, inasmuch as the authorities under the special Act have no jurisdiction to grant injunction. Counsel maintains that the relief of permanent injunction is a well-recognised one at law. Section 54 of the Specific Relief Act of 1977 made provision for such a suit and Section 38 of the new Specific Relief Act of 1963 is a provision following the old pattern. According to petitioner's counsel, since permanent injunction is a known form of remedy and a suit exclusively for that relief lay, unless there was clear provision or by necessary implication, the legislative intention became manifest, a pending action could not abate. The oft-quoted dictum of Willes J., in Wolverhampton New Waterworks Co. v. Hawkesford, (1859) 6 CB (NS) 336, is to the following effect :--
'There are three classes of cases in which a liability might be established, founded upon statute. One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different fromthe remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication excludes the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form or remedy; there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class.'
The relief of injunction, as already pointed out. was an existing remedy at common law. No provision has been made in the Act empowering the authorities to grant injunction. Can the existing remedy at common law for which there is a pending action, in the circumstances, be held to have abated?
Undoubtedly, even to grant injunction it would be necessary for the Court to adjudicate upon the question of title or possession. There would be many suits where who the rightful owner is has to be ascertained even when the relief is one of permanent injunction simpliciter. Invariably, the question of possession in praesenti will have to be taken into account. There is force in the submission of counsel for opposite parties that possession is an 'interest' in land. A suit for declaration of right or interest including possession would, therefore, abate, as required by Section 4 (4) of the Act. The main plank in the stand taken by counsel for the defendants-opposite parties is that if a suit for declaration of right or interest abates, since even in a suit for injunction simpliciter, right and/or interest has to be ascertained before relief can be granted, it must follow that the mischief of abatement must extend even to a suit for permanent injunction only.
The legislative policy behind the Orissa Act 21 of 1972 is clear. In providing for abatement and temporarily taking away the jurisdiction of the Court during the currency of the notification under the Act, the legislature has intended that when the consolidation operation is on, all relevant disputes should come before the consolidation authorities and two forums should not be dealing with the same matter, as in that event there was likelihood of inconsistent situation arising. In the case of Ram Adhar Singh v. Ramroop Singh,AIR 1968 SC 714, the Court considered the effect of Section 5 of the U. P. Consolidation of Holdings Act and observed (at p. 716) :--
'We have already extracted the provisions of Section 5 of the Act as it originally stood, and as it now stands, after the amendment in 1966. No doubt, in Clause (b) (i) of Section 5, as it originally stood, suits for possession of land were also expressly dealt with. But, under the amended Section 5, there is no direct reference to 'suits for possession of land'. It is, on this difference in phraseology of the new section, that Mr. Gupte, learned counsel for the respondent, has urged that his client's suit, being one for recovery of possession, instituted under Section 209 of the Abolition Act, is not hit by the provisions of Section 5, as it now stands. Mr. Gupte points out that when in the original Section 5, there was a specific reference to suits for possession of land, and which suits were to be stayed, there was a conscious departure, by the Legislature when Sec. 5 was amended, by omitting suits for possession of land. If the intention of the legislature was, Mr. Gupte points out, that the various types of suits or proceedings which had to be stayed, under the old Section 5, have to be declared, as abated under the new Section 5, the Legislature could have referred to all the types of actions which had been dealt with, under the original section. No doubt this line of reasoning, on the face of it, may appear to be attractive, but we are not satisfied that there is any merit in the contention. 'Suits for possession', as such, has not been expressly referred to, in the new Section 5, but, in our opinion, the expression 'every suit and proceeding in respect of declaration of rights or interest in any land .....', arecomprehensive enough to take in suits for possession of land, because, before a claim for possession is accepted, the Court will have necessarily to adjudicate upon the right or interest of the plaintiff, in respect of the disputed property, taking into account the claim of the opposite party. Therefore, in our opinion, the suit, instituted by the respondent, is covered by the amended Section 5 of the Act.'
These observations prima facie support the stand of the defendants to the effect that the suit would abate. We may usefully refer to another decision of the Supreme Court in the case of Gorakh Nath Dube v. Hari Narain Singh, AIR 1973 SC 2451, where referring to same Section 5 (2) of the U. P. Act, the Court held, with reference to a Bench decision of the Allahabad High Court (at p. 2453) :--
'..... Here, we find a fairly comprehensive discussion of the relevant authoritiesof the Allahabad High Court the preponderating weight of which is cast in favour of the view that questions relating to the validity of sale deeds, gift deeds, and wills could be gone into in proceedings before the consolidation authorities, because such questions naturally and necessarily arose and had to be decided in the course of adjudications on rights or interests in land which are the subject matter of consolidation proceedings. We think that a destinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any Court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject-matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to have invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation; it could be urged that the consolidation authorities have no power to cancel the deed, and therefore it must be held to be binding on them so long as it is not cancelled by a Court having the power to cancel it. In the case before us, the plaintiffs' claim is that the sale of his half share by his uncle was invalid, inoperative, and void, such a claim could be adjudicated upon by consolidation Courts.....'
4. We may advert to Section 15 of the Orissa Land Reforms Act. Sub-section (7) thereof clothed the Revenue Officer with jurisdiction to pass interim orders relating to appointment of receiver. Jurisdiction to pass orders of injunction had not been vested. When dispute arose as to whether the Revenue Officer could restrain one party from interfering with the possession of the other, and whether a relief for such purpose would be barred by Section 67 of the Land Reforms Act, the Legislature advisedly amended subsection. (7) in incorporating therein words 'restraining the landlord from interfering with the tenant's cultivation of the land or for such other purposes.' Mrs. Padhi for the opposite parties does not contend that evenin the absence of the power to grant injunction, the Consolidation Officer would have a right to pass an order of that type. It becomes difficult for us, therefore, to accept the submission that a suit for permanent injunction pending at common law would stand abated as a result of the notification under the Orissa Act 21 of 1972 even though the relief of injunction is not available under the Act.
What would really be necessary to meet a situation of this type is to clearly authorise the Consolidation Officer by law to grant in appropriate cases the relief of injunction and where such relief is granted, it must also be declared to be a decree for the purposes of execution. The proceedings under the special Act are temporary in nature though the effect of several orders made therein are of permanent bearing. The consolidation process being temporary, an order of permanent injunction granted by the authorities under the Act, unless declared expressly to have the effect of decree would not be available to be executed. For instance, Order 21, Rule 32 of C. P. C. makes provision for execution of decrees for injunction. Orders of the consolidation authorities should be deemed to be decrees so as to take advantage of the machinery of a permanent system for enforcing decrees for injunction. Until all that has been done, merely by construction of the scheme under the Orissa Act 21 of 1972, it becomes difficult to hold that the remedy at common law of permanent injunction is no more available either in the Civil Court or before the authorities under the Act, once there is a notification under Section 3 of the Act.
5. We are inclined, therefore, to hold that the suit for permanent injunction in the instant case did not abate. The view taken by P. K. Mohanti, J., in the case of Puni Bewa v. Ananta Sahoo, (1979) 47 Cut LT 494, where the learned Judge held that so far as the reliefs which relate to matters which are beyond the purview of the Act, the suit would not abate, and the single Judge decision in Chintamani Bhanja v. Gokula Chandra Bhanja, (Civil Revn. No. 195 of 1979, disposed of on 27th February, 1981) appear to be correct. The subsequent decision of our learned brother P. K. Mohanti, J. in Bhaga-ban Prasad Das v. Narayan Prasad Das, AIR 1980 Orissa 33, where he took a contrary view to his own in the earlier decision, in our opinion, does not state the correct position of the law.
6. We are inclined to think that the Legislature should step in and confer the jurisdiction on consolidation authorities to grantinjunction, both temporary and permanent, in regard to lands which are the subject matter of consolidation proceedings and orders of permanent injunction should be deemed to be 'decrees' for purposes of execution so that the inconvenience which arises may not continue and the legislative intention may be effectively worked out.
7. In the view we have taken of the matter, the Civil Revision must be allowed and the impugned order declaring the suit to have abated for a part of the property must be set aside. We direct the trial Court to dispose of the suit quickly.
There would be no order for costs.
8. I agree.