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Sri Paramananda Panda and ors. Vs. Punananda Das and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 671 of 1981
Judge
Reported in1985(I)OLR143
ActsOrissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 - Sections 3, 4(4) and 5(1)
AppellantSri Paramananda Panda and ors.
RespondentPunananda Das and anr.
Appellant AdvocateS.C. Misra, Adv.
Respondent AdvocateS.P. Misra, Adv. in C.R. 671/81 and ;S.P. Misra, Adv. and ;Addl. Standing Counsel in C.R. 673/81
DispositionRevision allowed
Cases ReferredDuruju Mailik v. Krupasindhu Swain
Excerpt:
.....or part thereof two consequences are to follow :(a) every order passed by the court under clause (4) in relation to the lands situate in such area or part thereof as the case may be shall stand vacated; it is now well settled that the suit for permanent injunction does not abate under section 4(4) of the act since the act makes no provision enabling the consolidation authorities to grant the relief of injunction......1 bringing to. the notice of the court the said notifications and praying for an order whether the suit abated, the trial court by its order dated 17.11.1978 held that the suit abates partially, that is, so far as the prayer for declaration of right title and interest, but does not abate so far as the relief of injunction is concerned. subsequently, the defendant-opposite party no. 1 again filed an application praying that the suit may be held to have abated into under section 4 of the act. in their objection to the said petition the plaintiffs petitioners contended that the consolidation officer has already submitted a report of cancellation of the notifications under section 3(1) so far as the suit village is concerned. they also brought to the notice of the court that the revenue.....
Judgment:

D.P. Mohapatra, J.

1. These two civil revision arise from the same suit (Title Suit No. 242 of 1977) and involve the common question, whether the trial Court had jurisdiction to restore the suit which had been earlier held to have abated under Section 4 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of. Land Act, 1972 ('the Act' for short) after the notification under Section 3 of the Act was cancelled in respect of the village in which the suit properties are situated The trial Court has rejected the petitioners' application to restore the suit and Misc. Case No. 262 of 1977 arising out of the application for injunction in the said suit holding that he has no jurisdiction to do so

2. The petitioners filed the suit praying for the following reliefs:

(a) the plaintiffs' right, title and interest be declared in respect of 'S' and 'C schedule properties.

(b) if it is found that the. plaintiffs have been dispossessed of 'S' and 'C schedule properties by the defendant Note in the meanwhile, the possession be given through the process of this Court.

(c) the defendant No. 1 be permanently restrained to come over 'B' and 'C' schedule properties.

(d) that defendant No. 2 be directed to correct R. O. R. and the map finally published on 2nd April. 1977, so far the 'B' schedule property is concerned and the same, be directed to be included in lease hold property of plaintiffs as given

(e) any other relief or reliefs to which the plaintiffs are entitled be given; and

(f) cost of the suit be decreed against defendent No.1.

The properties described in schedule 'B' and 'C' of the plaint are situated in village Suklesuar, Tahasil Salepur, District Cuttack. In the said suit, the plaintiffs-petitioners filed an application under Order 39, Rules 1 and 2, Civil Procedure Code (Misc. Case No. 262 of 1977) for issued of interim injunction against opp. party No. 2 restraining him not to come upon the suit land. By order dated 5. 1.1978, the trial Court passed ad interim order of injunction restraining the defendant from coming upon the suit land. The said order of injunction was made absolute by order dated 23. 10. 1978. The order was confirmed by the District Judge, Cuttack, in appeal (Misc. Appeal No. 128 of 1978).

During the pendency of the suit, notifications were issued by the State Government in the Revenue Department on 29th of December, 1977 and 2lst of October, 1978 under Section 3(1) of the Act and the said notifications were published in extra-ordinary issue of Orissa Gazette dated 5th January, 1978 initiating the scheme of consolidation in the area notified which included the village Sukleswar. On an application filed by opposite party No. 1 bringing to. the notice of the Court the said notifications and praying for an order whether the suit abated, the trial Court by its order dated 17.11.1978 held that the suit abates partially, that is, so far as the prayer for declaration of right title and interest, but does not abate so far as the relief of injunction is concerned. Subsequently, the defendant-opposite party No. 1 again filed an application praying that the suit may be held to have abated into under Section 4 of the Act. In their objection to the said petition the plaintiffs petitioners contended that the Consolidation Officer has already submitted a report of cancellation of the notifications under Section 3(1) so far as the suit village is concerned. They also brought to the notice of the Court that the Revenue Department has already 'issued cancellation of notifications in respect of the suit village and prayed for time to produce, a copy of the Official Gazette. But the Court by its order dated 26. 2. 1981 rejected their objection and held that the suit abates in its entirety. The notification under Section 5(1) of the Act canceling the earlier notifications dated 29.12.1977 and 21.10.1978 issued under Section 3(1) of the Act in respect of the villages mentioned in the notifications including village Sukleswar was issued on 24th February, 1981 ana published in the Official Gazette dated 3rd March, 1981. Thereafter, the petitioners filed two applications, one in the suit and the otherin the miscellaneous case under Order 9, Rule 4 read with Section 151, C. P. C., praying for restoring the proceeding status quo ants These petitions were numbered as Misc. Case Nos. 49 and 50 of 1981 respectively. The petitions were rejected by separate but similar orders passed by the Court below on 25. 8. 1981. The said orders are impugned in these revision petitions. The factual position stated above is accepted by both the parties.

3. The question than arises for consideration is whether the Court below was right in holding that he had no jurisdiction to restore the proceedings in view of his earlier orders to the effect that the suit has abated. Consideration of the statutory provisions which I shall presently deal with would clearly show that the impugned orders are unsupportable. Section 4(4) of the Act which deals with the effect of the notification regarding consolidation reads as follows :

'4(4) : 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 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;

Provided that no such order shall be passed without giving the parties concerned being an opportunity of being heard ;

Provided further that on the issue of a notification under Sub-Section (1) of Section 5 in respect of the said area or part thereof ;

(a) every order passed by the Court under clause (4) in relation to the lands situate in such area or part thereof as the case may be shall stand vacated ; and

(b) all such suits and proceedings as are referred in clause (3) or clause (4) which relate to lands situate in such area or part thereof, as the case may be shall be proceeded with and disposed of in accordance with the law as if they had never abated;

Provided also that such abatement shall be without prejudice to the right of the person affected to agitate the right of interest which formed the subject matter of the said suit or proceedings before the proper consolidation authority in accordance with the provisions of this Act or the rules made thereunder.'

The question of abatement of suit and proceeding is dealt with in Sub-Section (4) of Section 4 of the Act. The second proviso to Section 4(4) clearly stipulates that on the issue of the notification under Section 5(1) of the Act in respect of the area involved in the suit for proceeding or part thereof two consequences are to follow :

(a) every order passed by the Court under clause (4) in relation to the lands situate in such area or part thereof as the case may be shall stand vacated; and

(b) all such suits and proceedings as are referred to in clause (3) or clause (4) which relate to lands situate in such area or part thereof, as the case may be shall be proceeded with and disposed of in accordance with the law as if they had never abated.

From this it is clear that the scheme contempleted under the statute in that so long as the notification regarding consolidation operation issued under Section 3 of the Act is in force, the bar to jurisdiction of the Civil Court to entertain suits or proceedings and in respect of the lands within the said area shall stand ousted. This has been done with the purpose of avoiding two parallel enquiries to be conducted by two authorities, i.e., the Civil Court and the authorities under the Act in respect of the same subject matter. But as soon as the notification is withdrawn or cancelled in respect of the area in question the order of abatement of suits and proceedings in relation to the lands situated in such area or part thereof shall stand vacated and all such suits and proceedings shall be proceeded with and disposed of as if they have never abated.

In view of the specific statutory provision indicated above, the Court below was not right in saying that the order holding that the suit abates under Section 4(4) of the Act permanently destroys the suit and the same could not be revived by the Court in any circumstances.

4. The impugned order becomes unsaustainable on another ground also. As already noted above, one of the reliefs sought in the suit was to permanently injunct the defendant No. 1 to enter upon lands described in Schedule 'S' and 'C of the plaint. It is now well settled that the suit for permanent injunction does not abate under Section 4(4) of the Act since the Act makes no provision enabling the consolidation authorities to grant the relief of injunction. [See 54 (1982) C. L. T. 143 : Rahas Bewa v. Kanduri Charan Sutar and Ors. and 58(1984) C.L.T. 359 : (1984 (I) OLR 887); Duruju Mailik v. Krupasindhu Swain]. As such the present suit wherein one of the reliefs sought was for permanent injunction and wherein an application under Order 39, Rule 1, C.P.C., had been made and order of injunction had been passed could not be held to have abated under Section 4(4) of the Act. The legal position on both the grounds enunciated above is fairly accepted by the learned counsel for the opposite parties.

5. In the result, Civil Revision No. 673 of 1981 is allowed and the impugned order is set aside. Title Suit No. 242 of 1977 shall stand restored in terms of the second proviso to Section 4(4) of the Act and it shall be disposed of in accordance with land as if the suit has never abated. Civil Revision No. 671 of 1977 relates to Misc. Case No. 262 of 1977 which had been disposed of by 29. 12. 1977 when the first notification under Section 3(1) of the Act was issued. Hence, the question of restoring the said Misc. Case does not arise. But the order of injunction passed by the trial Court and confirmed in appeal shall remain operative on restoration of the suit. Civil Revision No. 671 of 1981 is disposed of accordingly Both the parties shall bear their respective costs in these proceedings.


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