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iswar Dehury Vs. Suchi Dei and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 573 of 1981
Judge
Reported inAIR1986Ori131; 58(1984)CLT481
ActsOrissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 - Sections 4 and 51(2)
Appellantiswar Dehury
RespondentSuchi Dei and ors.
Appellant AdvocateB.B. Rath and ;J.K. Misra, Advs.
Respondent AdvocateS.S. Swain, Amicus Curiae
DispositionRevision allowed
Cases ReferredJadumani Biswal v. Narayan Chandra Biswal (dead
Excerpt:
.....mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - where some preconditions are to be satisfied for exclusion of the jurisdiction, civil court is to examine whether the precondition provided under the statute is satisfied......where the plaintiff prayed for declaration of his title and possession in respect of 1 decimal of homestead land in village kumari singha within angul police station. this village has been notified on 6-8-1973 to come within the consolidation area under section 3(1) of the orissa consolidation of holdings and prevention of fragmentation of land act, 1972 (hereinafter referred to as the 'act'). by the impugned order passed, the suit has stood abated under section 4(4) of the act. 2. as the defendants who are opposite parties in this civil revision did not enter appearance in this court in spite of valid service of notice, 1 requested mr. s. s. swain, advocate to present the case on their behalf amicus curiae. 3. both mr. j. k. misra, the learned counsel for the petitioner and mr. s. s......
Judgment:
ORDER

S.C. Mohapatra, J.

1. This Civil Revision arises outof an order of the learned Munsif of Angul in Title Suit No. 3 of 1979 where the plaintiff prayed for declaration of his title and possession in respect of 1 decimal of homestead land in village Kumari Singha within Angul Police Station. This village has been notified on 6-8-1973 to come within the consolidation area under Section 3(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the 'Act'). By the impugned order passed, the suit has stood abated under Section 4(4) of the Act.

2. As the defendants who are opposite parties in this Civil Revision did not enter appearance in this Court in spite of valid service of notice, 1 requested Mr. S. S. Swain, Advocate to present the case on their behalf amicus curiae.

3. Both Mr. J. K. Misra, the learned counsel for the petitioner and Mr. S. S. Swain, appearing amicus curiae for the opposite parties at my request made their respective submissions based on Section 4 (4) of the Act. However, Section 4(4) has no application as the suit was instituted on 30-7-1979 after the notification under Section 3(1) of the Act. This is clear from the observation of the Division Bench of this Court in the case reported in (1982) 54 Cut LT 584 : (AIR 1983 Orissa 114) : Jadumani Biswal v. Narayan Chandra Biswal (dead) to the following effect :

'Section 4(4) and Section 51 are integral parts of the same scheme, namely, that during the consolidation operation, declaration of any right or interest in land has to be done by the consolidation authorities and not by the Civil Court. Section 4(4) covers pending suits while Section 51 forbids future suits to that end.'

Hence, the proper consideration would be bar of suit under Section 51(2) of the Act and not abatement of the suit under Section 4(4).

4. Normally, the suit is to be tried and judgment is to be pronounced on all issues of fact and law as is provided under Order 14, Rule 2 Civil P. C. Section 4(4) of the Act is a departure from the normal procedure where without trial of the suit, the Court is to consider whether the suit has abated and on the passing of an order to that effect the suit shall stand abated. Section 51(2) of the Act, however, does not provide for an order to be passed as is the case under Section 4(4). This is a provision relating to exclusionof jurisdiction of Civil Court. Exclusion of jurisdiction of a Civil Court is not to be readily inferred. Where some preconditions are to be satisfied for exclusion of the jurisdiction, Civil Court is to examine whether the precondition provided under the statute is satisfied.

5. Section 51(2) of the Act does not bar all suits relating to land in a consolidation area. It bars the suits in respect of any matter which an officer or authority empowered under the Act can decide. In other words, suits for reliefs in respect of any land in a consolidation area would be barred in case, relief prayed for in the suit can be granted by the officers or authorities under the Act. As the bar of suits under Section 51 (2) depends upon the relief to be granted, attempt might be made ingeniously in drafting the plaint in a manner which would cover the real relief claimed. Courts are to guard against such camouflage. Merely because the suit relates to homestead and relief for possession is prayed for, it cannot be said that the suit is barred. The provisions of the Act and the nature of the homestead are to be carefully scrutinised to examine if the relief of recovery of possession of homestead in question can be granted by an officer or authority under the Act. It is only in cases where the Court comes to the conclusion that such relief can be granted by the officers or authorities under the Act, it would answer the issue against the plaintiff. Each case would depend on its own facts. In case the Civil Court comes to the conclusion that there is no provision under the Act which authorises the officers or authorities to grant the relief, there would be no scope for bar of the suit under Section 51(2) of the Act. Where a special statute does not authorise an officer or authority created under the Act to exercise any power or to grant any relief, judicial pronouncement cannot authorise such officer or authority to exercise such power or grant such relief unless in exercise of the powers specifically vested on such creatures of the statute it becomes incidental to grant the relief.

6. As I have already indicated, the suit would not abate under Section 4(4) of the Act. Whether the suit is barred under Section 51(2) of the Act is an issue to be tried. The Trial of suit would be governed under Order 14, Rule 2 Civil P. C.

7. Accordingly, the impugned order is setaside and the Civil Revision is allowed. As the Opposite parties have not appeared in the Civil Revision, there shall be no order as to costs.


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