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Basudev Pani Vs. Jagannath and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 101 of 1983
Judge
Reported inAIR1986Ori78
ActsOrissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 - Sections 4(4) and 51; Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantBasudev Pani
RespondentJagannath and ors.
Appellant AdvocateS. Mohanty, Adv.
Respondent AdvocateB. Rath, ;P.K. Parida and ;R.C. Rath, Advs.
DispositionPetition dismissed
Cases ReferredPranabandhu v. Bhikari Maharana
Excerpt:
.....india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - he has taken a lot of pains in the investigation as to what the words 'title',right' and 'interest' mean in law referring to the jurisdiction as well as the commentaries of some reputed authors. the law is well settled that the statutory authority under a special statute can exercise power in relation to matters, the jurisdiction for which has been expressly spelt out in the statute......the defendant no. 2 was not the adopted son of punananda being the main relief sought for in this suit the suit would not abate on the authorities of the decided cases of this court. the defendant no. 2 has filed this revision challenging the legality of the order passed by the sub-judge.5. the orissa consolidation of holdings and prevention of fragmentation of land act, 1972 came into force on the 30th november, 1972. under section 3(1) of the said act the state government may issue a notification that any particular area is brought under the consolidation operation. the effect of the notification under section 3(1) of the act has (sic) enumerated in section 4 thereof. one of the consequences is that every suit and proceeding for declaration of any right or interest in any land.....
Judgment:
ORDER

P.C. Misra, J.

1. This revision is directed against the order of the Sub-Judge, Kendrapara in T. S. No. 13 of 1981 holding that the suit shall not abate under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the 'Act'). The Defendant No. 2 is the petitioner whose prayer for an order that the suit has abated under S, 4(4) of the said Act has been rejected by the impugned order.

2. The plaintiff in the trial Court (O. P. No. 1 in this revision) filed T. S. No. 13 of 1981 in the Court of the Sub-Judge, Kendrapara praying for the following reliefs : --

(a) declaring that defendant No. 2 is not adopted son of late Punananda and that the alleged document on that score dated 22-11-1978 is an illegal, fraudulent and void one which should be treated as a nullity or nonexistent; and

(b) declaring that defendants Nos. 1 and 2 cannot in law lay any claim to the schedule of property left behind by the uncle of the plaintiff.

3. The defendant No. 2 filed his written statement denying the plaint allegations and asserted that Punananda had adopted defendant No. 2 in accordance with law and had executed a registered deed on 22-11-78 acknowledging the adoption. It is further stated in the written statement that the said deed of acknowledgment of adoption is valid on the basis of which defendant No. 2 has acquired title to the disputed properties.

4. The properties in dispute in this suit have been described in schedules 'A' and 'B' of the plaint. Schedule 'A' properties appertain to Mouza Kakat whereas schedule 'B'. properties appertain to Mouza-Jajang. There was a notification under Section 3 of the Act with respect of village Jajang whereafter an application was filed by defendant No. 2 praying for an order to be passed that the suit has abated with respect to schedule 'B' properties under Section 4(4) of the Act in view of the aforesaid notification. An objection was filed against such a prayer on behalf of the plaintiff contending that the suit being for a declaration that defendant No. 2 is not the adopted son of Punananda, the same is beyond the purview of the consolidation authoritiesto decide and consequently the Civil Court would be competent to go into the said question. In this view of the matter they urged that the suit could not abate under the relevant provision of the Act. The learned Sub-Judge by the impugned order rejected the prayer of defendant No. 2 and held that the prayer for declaration that the defendant No. 2 was not the adopted son of Punananda being the main relief sought for in this suit the suit would not abate on the authorities of the decided cases of this Court. The defendant No. 2 has filed this revision challenging the legality of the order passed by the Sub-Judge.

5. The Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 came into force on the 30th November, 1972. Under Section 3(1) of the said Act the State Government may issue a notification that any particular area is brought under the consolidation operation. The effect of the notification under Section 3(1) of the Act has (sic) enumerated in Section 4 thereof. One of the consequences is that every suit and proceeding for declaration of any right or interest in any land situated within the consolidation area in regard to which proceedings 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. Section 51 of the said Act enacts that all questions relating to right, title, interest and liability in land lying in the consolidation area, except, those coming within the jurisdiction of Revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of this Act by the appropriate authority during the consolidation operations, and no Civil Court shall entertain any suit or proceeding in respect of any matter which an officer or authority empowered under this Act is competent to decide. A plain reading of the aforesaid section of the Act makes abundantly clear that Civil Court would not entertain a suit or proceeding which can be entertained and decided by the consolidation authorities and if such a suit is pending, the same should abate under Section 4(4) of the Act. Thus, the Civil Court's jurisdiction has been taken away in those matters for the adjudication of which, the consolidationauthorities have been vested with exclusive jurisdiction. The plaint in this case read as a whole would show that the plaintiff has denied the factum of adoption of defendant No. 2 by Punananda and has further alleged that defendant No. 1 has got a document of adoption in favour of his son defendant No. 2 taking advantage of the temporary absence of the plaintiff and that Punananda was unconscious during his illness. He has prayed for a declaration that defendant No. 2 is not the adopted son and that the deed acknowledging adoption dated 22-11-78 is fraudulent and void. It is alleged that Punananda died that very night on 22-11-78 and that the document acknowledging adoption had never been read over and explained to him nor Punananda was in a state of health to understand the purport of the document as he was in a stage of coma. The plaintiff has alleged that the said document dated 22-11-78 casts a cloud over his right, title and interest in the properties given in the schedule of the plaint. It has been held by this Court in the decision reported in (1979) 47 Cut LT 494 Puni Bewa v. Ananta Sahoo, that the consolidation authorities have not been vested with power to give a declaration of status or to set aside a decree or order of a competent Court. The Civil Court's jurisdiction to grant such relief is not expressly or impliedly barred under the provisions of the Act and thus the suit praying for such relief being beyond the purview of the Act would not abate under Section 4(4) thereof. In another case reported in (1984) 57 Cut LT 65, Pranabandhu v. Bhikari Maharana, it has been held that the consolidation authorities exercise special jurisdiction conferred upon them by the statute. They are competent to adjudicate upon right or interest in land. The question of status of a person does not relate to any right or interest in land. Such a matter can be adjudicated upon only by regular Courts and cannot be agitated in consolidation proceedings. The facts in the last mentioned case of Pranabandhu v. Bhikari Maharana are some way identical with the facts of this case. The plaintiff in that suit prayed for declaration of his title with respect to the suit land, for confirmation of possession or in the alternative for recovery of possession on the basis that defendant is not the adopted son of one Hadi Ojha. His Lordship held that since the main relief claimed by the plaintiff relates to the question of adoption which the consolidationauthorities are not competent to decide, the suit would not abate. In this case, as already stated, the main relief which the plaintiff has prayed for is for a declaration that the defendant No. 2 is not adopted son of Punananda and the deed of acknowledgment of adoption dated 22-11-78 is void as it was imporperly and fraudulently procured from Punananda during illness when he had lost his consciousness for which he was admitted to the hospital. The other relief namely the declaration that defendants Nos. 1 and 2 cannot lay any claim to the disputed properties left behind by Punananda is dependent upon the earlier relief relating to adoption by Punananda. I am in respectful agreement with the principle decided in the case referred to above, that the question of adoption cannot be gone into and decided by the consolidation authorities within the scope of its jurisdiction vested in the said authorities by the Act.

6. Mr. Mohanti has argued at length that all questions relating to title occurring in Section 51(1) of the Act should be given a wide interpretation and it should mean all questions which are relevant and necessary for adjudication of title. According to his argument the fact of adoption of defendant No. 2 is a means of his getting vested with the title to the properties of his adoptive father and is, therefore, a question relating to title which can be decided by the consolidation authorities. He has taken a lot of pains in the investigation as to what the words 'title', 'right' and 'interest' mean in law referring to the jurisdiction as well as the commentaries of some reputed authors. His research on the subject though commendable is of little assistance in deciding the question which arises in this revision. There is no dispute that wide powers as have been given to the Civil Court to try all the suits of a Civil nature excepting those cognizable of which is either expressly or impliedly barred, have not been given to the authorities under the Consolidation Act. The jurisdiction of the consolidation authorities are limited to those matters in respect of which powers have been expressly conferred on those authorities. Consolidation authorities have been empowered to decide right, title and interest in the land situated within the consolidation area but the power of declaration that adoption took place or did not take place has not been conferred on them. Declarationof status is no less an important subject, the consequence of which may be far-reaching. The law is well settled that the statutory authority under a special statute can exercise power in relation to matters, the jurisdiction for which has been expressly spelt out in the statute. Therefore, all questions relating to title occurring in Section 51(1) of the Act would, by no stretch of imagination, include the declaration of a status which the Civil Court alone can determine.

7. In the result, the impugned order, in my opinion, has correctly decided relating to abatement of the suit. In the facts and circumstances, the suit shall not abate. The learned Sub-Judge is directed to proceed with the suit from the stage at which the impugned order was passed and dispose of the same expeditiously. The revision is, therefore, dismissed. But there would be no order as to costs.


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