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2002 DIGILAW 589 (ORI)

Krushna Chandra Barik v. Nimai Charan Panda

2002-09-11

B.P.DAS

body2002
JUDGMENT B. P. DAS, J. — This Civil Revision is directed against the order dated 21.8.2001 passed by the Addl. District Judge, Jajpur, in T. A. No. 10 of 1998, rejecting petitioner’s application pray¬ing for abatement of the appeal. 2. The short facts necessary for disposal of this revision application may be stated thus : The father of O.P. No.1 Batakrushna Panda, and O. P. No. 2, Nilakantha Panda, filed T. S. No. 183 of 1992 in the Court of the Civil Judge (Senior Division), Jajpur, impleading the present petitioner as defendant No. 1 and O. P. Nos. 3 to 5 as defendant Nos. 2 to 4, for declaration of their right, title, interest and possession over the suit land and further for a declaration that the suit land was part and parcel of the plaintiffs' R. S. plot No. 4948 and not of defendants' C.S.plot No. 2133. The plaintiffs also prayed for confirmation of their possession over the suit land and alternatively for recovery of possession with a decree of permanent injunction against defendant No. 1 and damages and cost of the suit. The aforesaid suit was ultimately decreed declaring the right, title and interest of the plaintiffs over the suit land and confirming their possession over the same. The trial Court further declared that the land was a part and parcel of R. S. plot No. 4948 and permanently restrained defendant No. 1 i.e, the present petitioner, from disturbing the possession of O. P. Nos. 1 and 2, the plaintiffs. Against the aforesaid judgment and decree, an appeal was carried before the Addl. District Judge, Jajpur, being T. A. No. 10 of 1998. During the pendency of the said appeal, a petition was filed by the present petitioner to the effect that the village Malikapur in which the suit land situated was brought under consolidation operations as per the notification dated 28.10.1998 and a prayer was made for passing an order declaring that there was abatement of the suit as well as the appeal. The appellate Court considering rival contentions of the parties ultimately held that the appeal is maintainable because, though the suit village was brought under the consoli¬dation operations as per the notification dated 28.10.1988 made under Section 3 of the Orissa Consolidation of Holdings and Pre¬vention of Fragmentation of Land Act, 1972, at no stage of hear¬ing of the suit till the judgment and decree dated 29.1.1998 and 13.2.1998 respectively in T. S. No. 183 of 1992 were made, the matter of abatement was not pressed into service by either party and there¬by both the parties allowed the Civil Court to hear the suit on merit and pass the judgment and decree as aforesaid. The appel¬late Court further held that having allowed the suit to be heard on merits and attained its finality by judgment and decree with¬out seeking abatement at its later stage seeking a moratorium to the entire proceedings,i.e., the suit and appeal both, by way of abatement of the appeal cannot be held to be permissible. 3. From the submission of the learned counsel for the parties, it appears that there is no dispute that during the pendency of the suit, the factum of notification issued under Section 3 of the Act was not brought to the notice of the trial Court. According to the learned counsel for the petitioner, abatement under the scheme of the Act is to an automatic one but if it is pressed into service, the Civil Courts should keep their hands off in the proceedings, be it at the stage of trial of the suit, revision or appeal. Here in this case, according to the petitioner, at the appellate stage when the fact of the issuance of notification was brought to the notice of the appellate Court, there was no other alternative for the appellate Court than to declare abatement of the appeal as well as the suit. Learned counsel for the opposite party Nos. 1 and 2 vehemently resisting the aforesaid contention submits that the suit being one for permanent injunction, the consolidation authorities are not competent enough to deal with the injunction for which filing of suit was necessary and accordingly a decree was passed which is in all practical purposes executable and the said decree cannot be said to be abated. 4. 1 and 2 vehemently resisting the aforesaid contention submits that the suit being one for permanent injunction, the consolidation authorities are not competent enough to deal with the injunction for which filing of suit was necessary and accordingly a decree was passed which is in all practical purposes executable and the said decree cannot be said to be abated. 4. In this regard my attention is drawn to a Full Bench decision of this Court reported in 58 (1984) C.L.T. 359; Duruju Mallik alias Duryodhan Swain v. Krupasindhu Swain, wherein it was held thus : “It is well known that a party cannot be non-suited when under the law he does not have any alternative forum for the redressal of his grievances. When his rights are of civil nature, the reliefs which flow from such rights and which he is entitled to get should be available from the Civil Court where the officer or authority has not been empowered to grant the same.” A Division Bench of this Court in the case of Biswanath Jena v. Ramesh Chandra Jena, 1992 (II) O. L. R. 58, while holding that the Civil Court alone has competence to grant relief of permanent injunction, relied upon a decision in the case of Sirdhar Mohanty v. Kamal Kumar Agarwalla, 57 (1984) C.L.T. 417, wherein it was held that notwithstanding non-prescription of and express power in the statute enabling the consolidation authorities to grant relief of permanent injunction, the substance of the pleadings has to be looked into and not merely the form thereof. If on evaluation of the respective stands it is noticed that disputed question of title has to be determined, and permanent injunction can only be granted as a consequence of such determination, the suit would abate. 5. In the context of the above legal position, it is necessary to have a look at the plaint wherein the following reliefs were sought for - “(a) Let the right, title, interest and possession of the plain¬tiffs over the suit land be declared. (b) Let it be declared that the suit land is the part and parcel of the plaintiffs R.S. Plot No. 4948 and not under defendants C. S. Plot No. 2133 after due demarcation by an Amin Commissioner. (b) Let it be declared that the suit land is the part and parcel of the plaintiffs R.S. Plot No. 4948 and not under defendants C. S. Plot No. 2133 after due demarcation by an Amin Commissioner. (c) Let the possession of the plaintiffs over the suit land be confirmed and if alternatively it is found that the plaintiffs are dispossessed in the meanwhile, the possession of the suit land be delivered to the plaintiffs. (d) Let the defendant No. 1 be permanently injuncted not to disturb the possession of the plaintiffs over the suit land,cut the valuable trees over it, construct new house over it, pluck out the fruits from the trees standing over it and change the status quo of the suit land in any manner. xxx xxx xxx" The trial Court in the judgment and decree so passed also declared the right, title and interest of the plaintiffs. There¬fore, it is not a suit solely for permanent injunction but it involves some ancillary reliefs like declaration of right, title and interest. In this regard learned counsel for the petitioner draws my attention to a decision of the Apex Court in the case of Mst. Bibi Rahmani Khatoon v. Harkoo Gope, AIR 1981 S.C. 1450 , which, while deciding a similar question, referred to two of its earlier decisions in Ram Adhar Singh v. Ramroop Singh, AIR 1968 S.C. 714 , and Chattar Singh v. Thakur Prassad Singh, AIR 1975 S.C. 1499 , and held as follows : “12. Accordingly, both on principle and precedent it is crystal clear that where a notification is issued bringing the land involved in a dispute in the civil proceeding under a scheme of consolidation, the proceedings pending in the Civil Court either in the trial Court, appeal or revision, shall abate as a consequence ensuing upon the issue of a notification and the effect of abatement would be that the civil proceeding as a whole would come to a naught.......” The points of law involved in the aforesaid decision are almost the same as in the present case where the reliefs claimed in the suit are not only for permanent injunction simpliciter but also for a declaration of right, title and interest of the plain¬tiffs. In the case at hand the relief of permanent injunction can only be granted as a consequence of determination of right, title and interest. 6. In the case at hand the relief of permanent injunction can only be granted as a consequence of determination of right, title and interest. 6. In view of the above, the appellate Court has fallen into an error in holding that the appeal would not abate. It is not a case where not only the appeal would abate but also the suit. However, relying on the decision of this Court rendered by brother Justice P.K. Misra, reported in 2000 (II) O.L.R. 360 : Bansidhar Rana v. Minati Bewa, I set aside the judgment and decree passed by the Civil Judge (Senior Division), Jajpur, in T.S. No. 183 of 1992 and direct that the hearing of the suit shall remain stayed till finalisation of the consolidation pro¬ceedings. However, it is open to the trial Court consider any interim application for injunction or receivership for protection of the property in dispute. 7. Subject to the aforesaid observations and direction, the Civil Revision is allowed. No cost. Revision allowed.