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Chintamani Bhanja (Deceased by L.R.) Vs. Gokula Chandra Bhanja and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 195 of 1979
Judge
Reported inAIR1982Ori113
ActsOrissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 - Sections 4(4)
AppellantChintamani Bhanja (Deceased by L.R.)
RespondentGokula Chandra Bhanja and ors.
Appellant AdvocateG.S. Sahoo and ;K.C. Satapathy, Advs.
Respondent AdvocateS. Misra, Adv. No. 2, ;B. Das and ;S. Mantry, Advs.
DispositionRevision dismissed
Cases ReferredBhagaban Prasad Das v. Narayan Prasad Das
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........to deal with prayers for interim injunction. the ratio of the decision supports the two single judge view earlierindicated and there is no warrant for the position that the jurisdiction of the civil court would be unaffected so far as interim injunction is concerned and there would be no scope for granting permanent injunction. 4. notwithstanding these three single judge decisions holding the field, mr. justice p. k. mohanti changed his view in the case of bhagaban prasad das v. narayan prasad das (air 1980 orissa 33) unfortunately without referring to any of the reported decisions including his own. a learned single judge is not entitled to take a different view from reported decisions of the court even though they may be single judges, and in case he is inclined to have a view of.....
Judgment:
ORDER

R.N. Misra, C.J.

1. This application by defendant No. 1 in a suit for permanent injunction calls in question the order dated 12-2-79 passed by the Munsif, Banki, by which he has rejected an application of the defendant that the suit has abated In view of Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972.

2. The plaintiff claimed a decree for permanent injunction against the defen-dants by claiming title in himself Defendant No. 1 alone entered contest by filing a written statement on 13th April, 1973 wherein challenge to the title claimed by the appellant was raised, An application was made by defendant No. 1 that the suit has abated in view of the fact that the lands come within the village covered by the consolidation notification. The learned Munsif did not accept the assertion of defendant and held that the suit does not abate,

3. Section 4 (4) of the Act provides:--

'Every suit and proceedings 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 of 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.'

In Civil Revn. No. 277 of 1974 disposed of on 15th June, 1976 a single Judge of this Court held that injunction was not a matter within the purview of the powers of the Consolidation Officer and, therefore, Section 51 (2) of that Act had no application and a suit would not abate. That view was adopted by Mr, Justice P. K. Mohanti in Civil Revn. No. 374 of 1973: ((1979) 47 Cut LT 494) (Puni Bewa v. Ananta Sahoo) where the learned Judge observed:--

'..... 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 They have also no power to grant the relief of permanent injunction. The Civil Court's jurisdiction to grant such reliefs is not expressly or impliedly barred under the provisions of the Act,'

Another learned single Judge in Civil Revn. No. 65 of 1978 : ((1979) 48 Cut LT 93) : (AIR 1979 Orissa 159) (Adhikari Gopinath Day v. Nirmal Chandra Mo-hanty) while agreeing with the position that the Consolidation Authorities had no right to grant injunction took the view that the Civil Court would be in a position to deal with prayers for interim injunction. The ratio of the decision supports the two single Judge view earlierindicated and there is no warrant for the position that the jurisdiction of the Civil Court would be unaffected so far as interim injunction is concerned and there would be no scope for granting permanent injunction.

4. Notwithstanding these three single Judge decisions holding the field, Mr. Justice P. K. Mohanti changed his view in the case of Bhagaban Prasad Das v. Narayan Prasad Das (AIR 1980 Orissa 33) unfortunately without referring to any of the reported decisions including his own. A learned single Judge is not entitled to take a different view from reported decisions of the court even though they may be single Judges, and in case he is inclined to have a view of the legal position it is open to him to refer the matter to a larger Bench. In view of the fact that the situation had been completely answered by three earlier decisions, I am not inclined to follow the principle indicated in AIR 1980 Orissa 33 (supra) and would choose to prefer the learned Judge's earlier view which is in accord with the decisions of the two other single Judges. The position, therefore, would be, a suit for permanent injunction would not abate in view of the fact that such a relief is not possible to be granted by the Consolidation Authorities. It may be, as has been pointed out occasionally, that while dealing with a claim for interim injunction, the question of title as also possession would be ancillarily gone into- That, however, does not give rise to a situation where the logic, that declaration of title is within the ambit of the Consolidation Authorities' authority, would operate so as to make a suit for permanent injunction not maintainable in the Civil Court.

5. The Civil Revision is dismissed. No costs.


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