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Hrudananda Panda and anr. Vs. Dhirendra Behura - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 351 of 1983
Judge
Reported inAIR1985Ori74; 57(1984)CLT398
ActsOrissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 - Sections 4, 41 and 51; Code of Civil Procedure (CPC) , 1908 - Sections 11
AppellantHrudananda Panda and anr.
RespondentDhirendra Behura
Advocates:Mahadev Misra and ;C.R. Acharya, Advs.
DispositionRevision allowed
Cases ReferredBhagirathi Kar v. Jagannath Rou
Excerpt:
.....authority set aside the decision of the consolidation officer and came to hold that the claim of benami was false and that the petitioners acquired good title to the suit lands under the two sale deeds......for declaration of title to and confirmation or, in the alternative, recovery of possession of the suit lands described in schedule 'a' of the plaint the suit lands belonged to one karunakar behera who died in november, 1949 leaving behind him his widow kuntala bewa, a son (the plaintiff in the suit) and two daughters. kuntala bewa filed t.s. no 10/55 against the plaintiff for partition of the family properties. that suit stood abated on 3-7-74 under section 4(4) orissa consolidation of holdings and prevention of fragmentation of land act, 1972 (hereinafter referred to as 'the acf). kuntala bewa died in december, 1976. before her death, she had sold a portion of the suit lands in favour of defendant 1 by a registered sale deed dt/- 21-9-72. the plaintiff had also sold the remaining.....
Judgment:
ORDER

P.K. Mohanti, J.

1. Challenge in this Civil Revision is to the order of the learned Second Munsif, Cuttack, passed in T.S. No. 118 of 1982 deciding Issues Nos. 1 and 2 in favour of the plaintiff.

2. The plaintiff-opposite party filed the suit for declaration of title to and confirmation or, in the alternative, recovery of possession of the suit lands described in Schedule 'A' of the plaint The suit lands belonged to one Karunakar Behera who died in November, 1949 leaving behind him his widow Kuntala Bewa, a son (the plaintiff in the suit) and two daughters. Kuntala Bewa filed T.S. No 10/55 against the plaintiff for partition of the family properties. That suit stood abated on 3-7-74 under Section 4(4) Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as 'the Acf). Kuntala Bewa died in December, 1976. Before her death, she had sold a portion of the suit lands in favour of defendant 1 by a registered sale deed dt/- 21-9-72. The plaintiff had also sold the remaining portion of the suit lands in favour of defendant 2 by a registered sale deed d/- 23-8-69. The plaintiff filed the present suit on 7-8-82 for the aforesaid reliefs contending that his two sisters having relinquished their interests in his favour he has become absolute owner in respect of the suit lands. It was alleged that the two sale deeds executed by him and his mother on 23-8-69 and 21-9-72 were nominal deeds and no consideration had passed thereunder, and that possession of the lands had not been delivered in favour of defendants 1 and 2. The defendants on the strength of the nominal sale deedsmanaged to get their names recorded in respect of the suit lands during the consolidation operation though the plaintiff continues to be in peaceful possession of the same. Notification under Section 41 of the Act in respect of the suit village was issued on 12-5-82 and the consolidation operation was closed with effect from that date. The defendants on the strength of wrong recording of their names during the consolidation operation threatened to forcibly dispossess the plaintiff from'the suit lands and hence he filed the suit for the aforesaid reliefs.

3. The defendants filed a joint writtenstatement contending inter alia, that they hadacquired valid title to the suit lands by virtueof the sale deeds executed in their favour bythe plaintiff and his mother and that they werein possession of the same. It was alleged thatduring the last consolidation operation thedefendants filed applications before theconsolidation authorities for recording theirnames in respect of the suit lands and thoseapplications were numbered as objection CasesNos. 70 and 71 wherein the plaintiff filedcounter contending that the sale deeds D/-23-8-69 and 21-9-72 were benami transactionsand did not convey any title in favour of thedefendants. He accordingly prayed forrecording the suit lands in his name. Theconsolidation Officer came to the finding thatthe sale deeds wre benam transactions anupon such finding he dismissed the applicationsfiled by the defendants Against the order ofsuch dismissal, the defendants preferredappeals before the Deputy Director ofConsolidation which were numbered asAppeals Nos, 73 and 74 of 1978. The appellateauthority reversed the decision of theConsolidation Officer holding that the saledeeds were not benami transactions. Aggrievedby this order, the plaintiff preferred a revisionalapplication before the Commissioner ofConsolidation which was registered as RevisionNo. 222 of 1978. The Commissioner upheldthe decision of the appellate authority anddismissed the revision on 1-2-1980. Upon theseaverments, the defendants contended that thequestion of title to the suit lands having beenalready decided by the consolidationauthorities, the present suit was barred by resjudicata and that the suit was not maintainablein law.

4. On the above pleadings, the trial court framed Issues Nos. 1 and 2 as follows:

'Issue No. 1 -- Is the suit maintainable in law?

Issue No. 2 - Is the suit barred by res judicata?'

5. On the defendants petition d/- 10-11-82. the suit was taken up for preliminary hearing on the above two issues. At the hearing the defendants contended that the decision of the consolidation authorities operated as res judicata It was, however, contended on behalf of the plaintiff that the decision of the consolidation authorities was without jurisdiction as they were not competent to decide the question of benami In support of their contention the defendants relied on the Full Bench decision of this Court reported in (1980) 50 Cut LT 337 : (AIR 1981 Orissa 1) : Srinibas Jena v. Janardan Jena and the plaintiff in support of his contention relied on Division Bench decision of this Court reported in( 1982) 53 Cut LT 441 ; (AIR 1982 Orissa 241) : Bhagirathi Kar v. Jagannath RouL The learned Munsif relying on the Division Bench decision came to hold that the consolidation authorities were not competent to decide the question of benami and that their decision was without jurisdiction and hence it would not operate as res judicata. Aggrieved by this decision the defendants have come up in revisioa.

6. It is well settled by the Full bench decision of this Court in ( 1980) 50 Cut LT 337 : (AIR 1981 Orissa 1) (supra) that once the parties work out their rights before the consolidation authority and exhaust their remedies under the Act, they cannot reagitate the same questions over again in the Civil Court and that those questions stand finally concluded by the decision of the consolidation , authorities. It was clearly laid down that a decision of the consolidation authorities on the question of right, title and interest which are matters within their jurisdiction would operate as res judicata and that being so, the Civil Court will have no jurisdiction to hear and decide the suit afresh.

7. In (1982) 53 Cut LT 441 : (AIR 1982 Orissa 241) (supra) the question whether the consolidation authorities are competent to decide the question of benami did not directly arise for decision by this Court In that case O.P. No. 1 was the original owner of the property and the petitioner acquired title to the same under a registered sale deed. In 1970, there was final publication of the recordof rights wherein the petitioner was shown to be the owner in possession of the property. There was a proceeding under Section 145, Cr. P. C, between the parties which terminated in favour of O.P. No, 1, but the decision of the Magistrate was set aside by the revisional Court In the meantime, the suit lands came under consolidation operation and the O.P. No. 1 contended before the consolidation authorities that the sale was benami and therefore did riot convey any title to the vendee. This contention was repelled by the Consolidation Officer. The decision of the Consolidation Officer was upheld by the appellate authority. Then O.P. No. 1 moved the Commissioner of Consolidation in revision. The Commissioner directed the parties to agitate the question of benami in the common law Court but remanded the matter to the Consolidation Officer for giving a finding regarding possession and also required that such possession should be noted in the Land Register. Aggrieved by this order, the petitioner came up with a writ application and contended that there being no claim of title on the basis of adverse possession, the fact of possession'was immaterial for the consolidation proceeding and the direction to enquire into possession and to make an entry in the Land Register with reference to such possession was irrelevant Since there was no claim of acquisition of title by adverse possession by the opposite party, this Court quashed the Commissioner's direction for enquiry into the question of possession and maintained the decision of the appellate authority with an observation that if there was any real grievance,the same must be ventilated in the Civil Court It will, thus, be seen that the question of competency of the consolidation authorities to decide the question of benami did not directly come up for decision before this Court and no decision was rendered by this Court on that aspect of the matter. Hence the decision in (1982) 53 Cut LT 441 : (AIR 1982 Orissa 2411 is no authority for the proposition that the consolidation authorities are not competent to decide the question of benami.

8. Powers given to the consolidation authorities, in my opinion, are sufficiently wide to decide the question of right or interest in any land situate within the consolidation area There is nothing to suggest that theconsolidation authorities are not competent to go into the question of benami while deciding the right or interest of one party or the other. The decision on the question of benami is in effect and substance in respect of the declaration of the rights or interests of the parties in the land All claims of ownership of land should be put forward before the consolidation authorities so that they may determine who is the true owner of the land If a party fails to do so, he will be debarred from establishing his claim of benami in a Civil Court Directing a party to the consolidation proceeding to establish in Civil Court his claim of benami would materiallly affect carrying out a proper consolidation scheme under the Act If it is held that the consolidation authorities have no power to decide the question of benami and they must await the decision of the Civil Court then it would virtually hold up the consolidation proceeding.

9. The certified copy of the judgment of the Consolidation Commissioner produced by the learned counsel for the petitioners shows that the opposite party contended before the consolidation authorities that the transactions under the two sale deeds were of benami character. This contention found favour with the Consolidation Officer, but the appellate authority set aside the decision of the Consolidation Officer and came to hold that the claim of benami was false and that the petitioners acquired good title to the suit lands under the two sale deeds. The decision of the appellate authority was confirmed by the Consolidation Commissioner. What the petitioners really wanted is that their names should be entered in the Land Register as the owners of the lands. In substance the proceeding before the consolidation authorities was in respect of declaration of rights and interest in the land. Thus, the question of ownership of the land has been finally concluded by the decision of the consolidation authorities which would operate as res judicata in view of the Full Bench decision of this Court referred to above and that being so, the Civil Court has no jurisdiction to decide the question of title afresh.

10. 'In the premises aforesaid,' the Civil Revision in allowed and the order of thelearned Munsif is set aside. T. S. No. 118 of 1982 on the file of the Second Munsif, Cuttack be dismissed as barred by res judicata.


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