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1990 DIGILAW 372 (ORI)

BUDHI DEI v. KALU MUDULI

1990-10-10

K.C.JAGADEB ROY

body1990
JUDGMENT : K.C. Jagadeb Roy, J. - The present petitioner who is the plaintiff filed a Title Suit bearing No. 152 of 1986 in the Court of the Munsif, Jagatsinghpur for permanent injunction restraining the defendants-' opp. parties from making any construction over the suit land measuring Ac. 0. 53 decimals as detailed in the plaint and from changing the nature and character of the suit Sand and also from encroaching and/or' removing any. portion of the common passage as shown in biack colour in the sketch map appended to the plaint, and also from filling the tank as shown in yellow colour in the said map and from interfering with the peaceful possession of the petitioner in respect of the suit land which is in his separate possession. The suit was filed on 14-7-1986. The defendants are the members of the joint family, some of them being the co-sharers. The consolidation operation started in that area on 2-5-1985 prior to . the filing of the suit. At the time of filing of the suit the land was under consolidation operation for which the present petitioner did not seek to effect partition in the same suit and preferred to effect partition in the consolidation proceeding itself. Before the consolidation authorities, the suit properties were partitioned and the petitioner was shown to have 8 annas interest in the suit property. Since the interest of the petitioner was not specified in the joint suit house, he preferred an appeal to the Deputy Director of Consolidation wherein he wanted specific portion of the suit house to be allotted to him in the partition. That having been dismissed, the petitioner preferred a revision before the Consolidation Commissioner which was numbered as Consolidation Revision No. 1122 of 1987. in the meanwhile the Full Bench of this Court considered about the homestead land and in the case of Sundarmani Bewa and Anr. v. Dasarath Parida (dead) and after him Labanya Del & others) reported in 65(1988) CLT 449 (F B.) held that the homestead lands are non- consoiidable. In view of this finding of this Court in Full Bench, the Commissioner of Consolidation dismissed the consolidation revision filed by the petitioner as not maintainable on the ground that since the land is not consolidable, he did not have any Jurisdiction to pass orders in this case. In view of this finding of this Court in Full Bench, the Commissioner of Consolidation dismissed the consolidation revision filed by the petitioner as not maintainable on the ground that since the land is not consolidable, he did not have any Jurisdiction to pass orders in this case. Subsequent to the decision of this Court in the Full Bench as referred to above, the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act was amended by the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land (Amendment) Act, 1989 which came into force on 16-3-1989. The purport of the amendment made in the year 1989 was to declare, notwithstanding the decision of the Court thereof, that the homestead lands are treated to be consolidable. 2. In the meanwhile the petitioner had filed an application for amendment of the suit (T. S. 152 of 1986) and desired to treat the suit as a suit for partition apart from the suit for permanent injunction. That amendment having been rejected, the petitioner preferred a civil revision in this Court which was numbered as Civil Revision. 922 of 1989. By the order dated 7-8-1989, the said revision was allowed and it was not brought to the notice of the Court at that time that the Orissa Consolidation (Amendment) Act came into force with effect from 16-3-1989 and the Court having hot taken into consideration this amended provision of the Orissa Con consolidation Act, allowed the revision directing the plaintiff-petitioner to seek amendment in the suit for treating the suit as a suit for partition on payment of costs Of Rs. 100/- to Mr. Jena, the advocate for the other side. 3. In view of the Orissa Consolidation (Amendment) Act which Came Into force on 16-3-1989, the trial Court treated the suit for partition as not maintainable as the land being consolidable, the right, title and Interest In reject of the suit land is to be decided by the consolidation authorities and the jurisdiction of the Civil Court was ousted and passed the Order ousting the suit relating to partition by his order dated 9-3-1990 pissed in Title Suit No. 152 of 1986. The Court further passed the order that even the suit for permanent injunction is not maintainable and the entire. suit for partition and permanent injunction abated u/s 51 of the Consolidation Act 4. The Court further passed the order that even the suit for permanent injunction is not maintainable and the entire. suit for partition and permanent injunction abated u/s 51 of the Consolidation Act 4. The learned counsel for the petitioner challenges this order of the learned Munsif, Jagatsinghpur on the sole ground that in view of the amended provision of the Consolidation Act brought in 1989, the suit relating to partition of the property may not be maintainable, but the plaintiff could not be unsuited in respect of his payer for permanent injunction. There Is sufficient force in the contention of the learned counsel appearing for the petitioner. In the event he succeeds in any of the forums provided under the Consolidation Act relating to his right, title and interest In respect of the suit property, he is to bring a,' fresh suit once again for permanent injuction against opp. parties. That apart, under the scheme of .the Consolidation Act, the plaintiff cannot obtain 'an order for permanent injunction which can only be received from the Civil Court in a suit for permanent injunction, in view of this, justice will be done to both the parties if the suit confined to the prayer of permanent injunction will be stayed while the parties-decide their matter of partition before 'the consolidation authorities, When the right, title and interest of 'the petitioner is finally determined on partition, the suit for permanent injunction will be ultimately disposed of taking into consideration the finding of the consolidation authorities regarding the right, title and interest of the plaintiff in respect of the suit property. 5. Mr. Jena, the learned counsel for the opp. parties does not dispute this. In a case of (prafulla Kumar Behera v. Mangalu Samai) reported in 32 (1990) OJD 288 (Civil), this Court has held that in a suit for declaration of title and recovery of possession, relief of declaration of title cm be given under the Scheme of the consolidation Act and not recovery of possession. The entire suit was not to abate The suit regarding the permanent injunction does not abate and is stayed till the title of the plaintiff in respect of the suit Sand is decided by the Consolidation Court. For the reasons stated above, the impugned order of the learned Munsif therefore, cannot stand in its entirety. The entire suit was not to abate The suit regarding the permanent injunction does not abate and is stayed till the title of the plaintiff in respect of the suit Sand is decided by the Consolidation Court. For the reasons stated above, the impugned order of the learned Munsif therefore, cannot stand in its entirety. The order regarding the abatement of the suit for permanent injunction is set aside while holding that the suit for partition be abated as held by the Munsif. 6. In the result, the Civil Revision is allowed in part. The parties to bear their own costs of this revision.