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Siba Prasad Dashson Vs. Kali Charan Dash - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 586 of 1980
Judge
Reported inAIR1984Ori108; 57(1984)CLT560
ActsOrissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 - Sections 4(4), 7(1) and 51
AppellantSiba Prasad Dashson
RespondentKali Charan Dash
Appellant AdvocateN.C. Pati, Adv.
Respondent AdvocateS.C. Mohapatra, Adv.
DispositionPetition dismissed
Cases Referred(Gorakh Nath Dube v. Hari Narain Singh). Applying
Excerpt:
.....her lifetime for her maintenance. the plaintiffs having thought it convenient to partition the suit properties by metes and bounds gave a notice for this purpose to the defendants but the defendants failed to take any action in pursuance to the said notice. anania sahu). even accepting the contention of the petitioners that it is the substance of the dispute involved in the suit that is to be takeninto consideration and not merely the reliefsought, considering the pleadings of the parties the question involved in the suit is onefor determination of the right, like andinterest of sriya in the suit properties. it is well settled that when a power is vested in an authority all matters incidental to or necessary for exercise of such power are also vested in the said authority by..........parties 4, 5 and 6 filed the suit praying for the following reliefs :--(a) partition of the suit properties by metes and bounds and allotment of the due share fo the plaintiffs and defendants; (b) adjustment of equity so far the pro-tits accrued, accruing or shall accrue from the suit properties after account is taken; (c) costs of suit and future interest; and (d) any other relief as pet law, equity and good conscience; the gist of the case of the plaintiffs was that late dhanpati dash as the father and karta of his family effected a partition of his joint family properties amongst the different co-sharers and coparceners by a registered deed of partition on 26-6-1954 retaining a share for himself which constitutes the disputed properties in the suit. this partition was later on.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. This revision is directed against the order dated 29-7-1980 by the Subordinate Judge, Bargarh in Title Suit No. 91/70 (holding that the suit abates in part under Section 7(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the 'Act').

Before coming to the facts relevant for the purpose of the case it will be helpful to give the genealogy showing relationship between the parties:

Dhanpati Dash(Died on 8-12-1954)

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Sebak Bhakta Prasad Ramprasad Shiba Prasad kalicharan

(died in 1933) (died in 1969) (died in 1948) (Defdt.4) (Defdt.1)

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= Sushila | Ashmati

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______________________ |

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Bairagi Charan Premalata Govinda Prabhat Rajani

(c.D2) (D.3) (PLf.1) (Plf.2) (Plf.3)

The petitioner along with opposite parties 4, 5 and 6 filed the suit praying for the following reliefs :--

(a) Partition of the suit properties by metes and bounds and allotment of the due share fo the plaintiffs and defendants;

(b) Adjustment of equity so far the pro-tits accrued, accruing or shall accrue from the suit properties after account is taken;

(c) Costs of suit and future interest; and (d) Any other relief as pet law, equity and good conscience;

The gist of the case of the plaintiffs was that Late Dhanpati Dash as the father and Karta of his family effected a partition of his joint family properties amongst the different co-sharers and coparceners by a registered deed of partition on 26-6-1954 retaining a share for himself which constitutes the disputed properties in the suit. This partition was later on modified by an award dated 20-8-1959, by arbitrators appointed by the parties. Dhanpati was possessing his share separately in his own right and title till his death on 8-12-1954 whereafter his share of the properties was allowed to be possessed by his widow Sriya to be enjoyed by her during her lifetime for her maintenance. Sriya having died on 24-8-1975 the share of Dhanpati possessed by Sriya as a limited owner devolved on her two sons Shiba Prasad and Kalicharan who were then living and Bairagi Charan and Premalata the son and daughter of her predeceased son Bhakta Prasad. Shiba Prasad transferred his interest in the suit properties in favour of the plaintiffs by a registered deed of gift dated 31-3-1976 and since then the plaintiffs have become owners and co-sharers of the suit properties to the extent of the share of Shiba Prasad. The plaintiffs having thought it convenient to partition the suit properties by metes and bounds gave a notice for this purpose to the defendants but the defendants failed to take any action in pursuance to the said notice. According to the plaintiffs they have jointly 1/3rd share appertaining to the interest of Shiba Prasad Dash in the suit properties, defendant No. 1 has 1/3rd and defendant Nos. 2 and 3 each has 1/6th share in the suit properties.

Defendant No. 1 (opposite party No. 1) in his written statement denied the averments in the plaint. According to him, the suit properties except H. S. Plot no. 1263 appertain to the share that was allotted jointly to late Dhanpati Dash and Sriya Dash in the partition effected by the deed of partition dated 20-6-1954 and registered on 6-4-1974. Since then both Dhanpati and Sriya were in joint possession of the said properties. On the death of Dhanpati on 8-12-1954 Sriya continued to possess that said properties alone in her own right, title and interest. H. S. Plot No. 1263 was acquired by late Sriya by way of exchange from her son late Bhakta Prasad and was being possessed by her in her own right, title and interest. After coming into force of the Hindu Succession Act, by virtue of Section 14 thereof Sriya became the absolute owner of the suit properties and possessed the same as such till her death on 24-8-1975. While so possessing the suit properties Sriya disposed of the same by a Will dated 17-9-1973 executed in favour of defendant No. 1. Since the death of Sriya defendant No. 1 has been possessing the suit properties in his right, title and interest. According to the defendant No. 1, Shiba Prasad never had any right over the suit properties and consequently the alleged deed of gift by Shiba Prasad in favour of the plaintiffs does not confer any fight over the suit properties.

2. On the pleadings as stated above, the trial Court framed several issues including one to the effect if the suit for partition is maintainable. During the pendency of the suit, a petition was filed that the suit abates under Section 4(4) of the Act. The learned Subordinate Judge on a consideration of the said application and the objection filed thereto held that the suit abates in respect of the suit properties excepting H. S. Plot Nos. 8. 5 and 4 and Plot no. 223 under item Nos. 2. 3. 5 and 6 of the plaint schedule. This revision is directed against the said order.

It is contended on behalf of the petitioners that the trial Court erred in holding that the suit abates in respect of some ofthe items of suit properties since the suit involves determination of the validity of the deed of gift executed by Shiba Prasad in favour of the plaintiffs and the Will executed by Sriya in favour of defendant No. 1 adjudication of which is not within the competence of the authorities under the Act. It is further contended on behalf of the petitioners that it is the substance of the dispute in the suit which is to be considered for determining the question of abatement of the suit and not merely the reliefs sought.

3. It is not in dispute that the properties in respect of which the suit has been held by the trial Court to have abated come within the notification issued by the State Government under Section 3(1) of the Act. The question whether a suit pending in the Civil Court either at the stage of trial or appeal or revision abates under Section 4(4) of the Act has been the subject-matter of consideration in a large number of decisions of this Court. Shortly put, the ratio in the decided cases has been that if the subject-matter involved in the suit is available to be dealt with by the authorities under the special Act and the reliefs sought in the suit can be granted by the said authorities the suit pending in the Civil Court shall abate, vide (1982) 54 Cut LT 584 : (AIR 1983 Orissa 114), (Jadumani Biswal v. Narayan Chandra Biswal), (1983) 55 Cut LT 561, (Padma Charan Monanty v. Koili Bewa), AIR 1982 Orissa 218, (Prasanna Mali v. Raghumani Misra), (1984) 1 OLR 54, (Radhashyam Jana v. Jagannath Jena), (1984) 57 Cut LT 65, (Pranabhandhu Panu Ojha v. Bhikari Maharana Ojha). In the first case mentioned above the Division Bench took the view that if a suit abates, then the Consolidation Authorities must have jurisdiction to go into the question involved or conversely, if a matter can be gone into by the Consolidation Authorities, then a suit in respect of that matter must abate under Section 4(4). The test to be applied in determining the question whether a suit shall abate or not is whether the parties can get the real and effective relief from the Consolidation Authorities. In all these decisions emphasis has been given on the real and effective relief sought in the suit.

4. The following are the relevant provisions of the statute reference to which is necessary for the purpose of this case. Section 4 enumerates the consequences that follow upon the publication of a notification under Section 3(1) of the Act Sub-section (4) of the said section reads as follows:

'(4) Every suit and proceeding for declaration of any right or interest in any land situate 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 7 (1) of the Act which expressly vests the power relating to partition of joint holding lying with the consolidation area in the Revenue Officer runs thus:-- '(1) Upon the publication of the Notification issued under Sub-section (1) of Section 3, no partition of a holding lying in the consolidation area under Section 19 of the Orissa Land Reforms Act, 16 of 1960, shall be effected by the Revenue Officer till the publication of the notification under Section 41 or Sub-section (1) of Section 5, as the case may be, and the Assistant Consolidation Officer and the Consolidation Officer shall, in addition to the powers vested in them under this Act, have powers to effect partition of joint holdings on application of any party interested notwithstanding anything to the contrary contained in any other law for the time being in force.'

Section 51 of the Act provides for bar of jurisdiction of Civil Courts in the following terms:--

'51. Bar of jurisdiction of Civil Courts--Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions contained in Clause (3) of Section 4 and Sub-section (1) of Section 7 (1) 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 (2) no Civil Court shall entertain any suit or proceedings in respect of any matter which an officer or authority empowered under this Act is competent to decide.'

5. From the aforesaid provisions, it is clear that the question of partition can be gone into by the Consolidation Authorities and the relief for partition can be granted by the said authorities. In the present suit, the relief sought being for partition of the suit properties by metes and bounds and allotment of due share to the plaintiffs and defendants, it squarely comes within thejurisdiction of the Consolidation Authorities and the suit abates under Section 4(4) of the Act, vide (1979) 47 Cut LT 494, (Punj Bewa v. Anania Sahu).

Even accepting the contention of the petitioners that it is the substance of the dispute involved in the suit that is to be takeninto consideration and not merely the reliefsought, considering the pleadings of the parties the question involved in the suit is onefor determination of the right, like andinterest of Sriya in the suit properties. Determination of this question also is withinthe competence of the Consolidation Authorities.

The only other aspect of the mutter, which, remains for consideration is the determination of the validity of the deed of gift executed by Shiba Prasad and the validity of the will executed by the late Sriya. It is pertinent to note that no specific prayer has been made in the suit for setting aside, these two documents. It is well settled that when a power is vested in an authority all matters incidental to or necessary for exercise of such power are also vested in the said authority by necessary implication, vide AIR 1973 SC 2451. (Gorakh Nath Dube v. Hari Narain Singh). Applying this principle to the present case, the question whether the deed of gift executed by Shiba Prasad and the will executed by Sriya are valid documents or they are void and inoperative is a matter incidental to the question of determination of right, title and interest of Sriya and the claim for partition by the plaintiffs.

6. In view of the discussion aforesaid, there is no error or infirmity in the impugned order of the Court below holding that the suit abates in part under Section 4(4) of the Act. As such, this Civil Revision is devoid of merit and the same is dismissed, but in the circumstances of the case, there will be no order for costs.


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