D.P. Mohapatra, J.
1. One of the plaintiffs' in Title Suit No. 29 of 1978 in the court of the Subordinate Judge, Sonepur has filed this Revision Petition challenging the order of the learned court below dated 1. 5. 1980 holding the suit to have abated under Section 4(4) of the Orissa Consolidation of Holding and Prevention of Fragmentation of Lands Act 1972 ( hereinafter called the 'Act' ).
The plaintiffs filed the suit praying for the following reliefs.
(1) A degree for perpetual injunction be passed restraining the defendants from constructing any road or any portion of the suit land either personally or through any contractor.
(2) Mandatory injuction be issued against the defendants directing them to remove the materials used for the construction of the road over the suit lands and to level the lands so as to make the same fit for cultivation.
(3) Permission be granted to the plaintiffs for reserving their right to file a suit for damages against the defendants.
(4) The costs of the suit be granted to the plaintiffs.
The gist of the plaintiffs case as stated in the plaint was that the plaintiff No. 1 is the owner in possession of the lands bearing plot No. 701 under holding No. 188 of village Temamura. The said land was recorded in his name in the record of rights prepared during the current settlement. Similarly, the land bearing plot No. 706 out of holding No. 105 of village Tamamura of the 4th settlement belong to plaintiff No. 2 and she is the owner in possession of the said land. The land has also been recorded in her name in the record of rights prepared during the current settlement. The defendants without any right, title and possession over the suit lands and without acquiring any portion thereof, started constructing a road over the suit land without the consent or permission of the plaintiffs. By such action on the part of the defendants, the suit lands has been damaged and the plaintiffs have sustained heavy loss.
2. The defendants in the written statement, denied the assertions in the plaint relating to claim of right, title and possession of the plaintiffs. They denied to have made any construction on the plaintiffs land but only made improvements on the existing road.
While the suit was pending in the learned court below, a petition was filed on behalf of the defendants to the effect that the suit has abated under Section 4 (4) of the Act, since the suit lands are situated in village Temamura in respect of which a notification under Section 3(1) of the Orissa Consolidation of Holdings and prevention of Fragmentation of Lands Act has been published in the extraordinary Orissa Gazette and the consolidation work in the said village is in progress. The plaintiffs did not file any written objection but at the time of hearing on the petition made submissions to the effect that the provisions of Section 4 (4) of the Act are not applicable to the present suit and accordingly, the suit cannot be said to have abated.
The learned court below after hearing both the parties allowed the petition filed by the defendants holding that the suit has abated. Hence, this revision petition.
Sri N C. Pati the learned counsel appearing for the petitioner contended that since the suit is one for perpetual injunction and mandatory injunction, the learned court below, has erred in holding that the suit abates under Section 4(4) of the Act. He further submitted that since the relief of injunction is not available to be granted by the Authorities under the Act, the right of the plaintiffs to seek such a relief in the Civil Court cannot be said to have been taken away under the provisions of the said statute. He has placed reliance on a Division Bench decision of this Court in the case of Rahas Bewa v. Kandari Charan Suttar and Ors. reported in 54.(1982) C.L.T. 143 and also the Single Judge decision in the case of Chintamani Bhanja v. Gokula Chandra Bhanja and Ors. reported in A.I.R. 1992 Orissa 113 in support of this contention.
The contentions raised by the learnsed counsel for the petitioner have considerable force. In the Division Bench decision referred to above, the question whether a suit for permanent injunction can be said to have abated under the provisions of the Act specifically arose for decision. Their Lordships on a consideration of several Single Judge decisions of this Court taking views contrary to each other and referring to some decision of the Supreme Court took the view-
''It becomes difficult to accept the submission that a suit for permanent injunction pending at common law would stand abated as a result of the notification under the Orissa Act 21 of 1972 even though the relief of injunction is not available under the Act,-
Their Lordships further observed that the legislature should step in and confer the jurisdiction on consolidation authorities to grant injunction, both temporary and permanent in regard to lands which are the subject matter of consolidation proceedings and orders of permanent injunction should be deemed to be 'decrees' for purposes of execution so that the inconvenience which arises may not continue and the legislative intention may be effectively worked out. Similary, the Single Judge decision referred to above has also held that a suit for permanent injunction would not abate, as relief of permanent injunction is not possible to be granted by Consolidation Authorities, even though while dealing with a claim for interim injunction the question of title as also possession would be ancillarily gone into.
In the present case, it is also not seriously disputed by the learned counsel for the opp. parties that the relief sought in the suit is essentially for injunction. As such, the decision in the Division Bench case referred to above applies to this case. In these circumstances, it has to be held that the suit in question does not abate under Section. 4 (4) of the Act and the learned court below fell into an error in holding to the contrary.
3. In the result, the revision petition succeeds and the impugned order of the learned Subordinate Judge, Sonepur, is set aside. Title Suit No. 29 of 1979 shall proceed. Since the suit is an old one, it shall be disposed of expeditiously. In the circumstances of the case, there would be no order for costs.