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2012 DIGILAW 52 (ORI)

Annapurna Tripathy v. Sri Prafulla Ku. Panigrahi

2012-01-30

B.K.MISRA

body2012
JUDGMENT B.K. MISRA, J. - In this writ petition, the petitioner has assailed the order of the learned Civil Judge (Sr. Divn.), Bhadrak in C.S. No.102 of 2003-I dated 16.5.2011 (Annexure-3) wherein the learned Court disallowed the prayer of the petitioner for stay of further proceedings in the aforesaid Civil Suit. 2. I may mention here that the present petitioner was the defendant in a suit i.e. C.S. No.102 of 2003-I instituted by her brother, the present opposite party No.1 Prafulla Kumar Panigrahi for declaration that the name of the petitioner i.e. defendant recorded in the Major Settlement as well as Consolidation Record of Rights in respect of 'A' Schedule land to be illegal and void and also for permanent injunction restraining the petitioner from advancing any claim whatsoever over the suit property and from entering into the suit property. The sole defendant, namely, the present petitioner entered appearance in the said suit and contested the same. During pendency of the said suit in the Court below, a petition was filed by the present petitioner (as the defendant) that in view of the pendency of Consolidation Appeals i.e. D.D. Appeal Nos.6, 7, 8 and 9 of 2006, further proceedings in C.S. No.102 of 2003-I should be stayed. Serious objection was raised to such prayer of the defendant by the plaintiff on the ground that the appeals which have been filed have not yet been admitted even after lapse of four years and besides that in view of disposal of W.P.(C) No.8016 of 2006 the prayer of the Defendant to stay further proceedings of the Civil Suit should be rejected. 3. The certified copy of the orders sheets in C.S. No.102 of 2003-I at Annexure-3 shows that the learned Civil Judge (Sr. Divn.), Bhadrak took up the prayer of the defendant, namely, the present petitioner for stay of further proceedings of the suit on 10.12.2010 and passed interim stay for 15 days directing the defendant to produce documents in support of filing of Consolidation Appeal Nos.6 to 9 of 2006 before the Consolidation Authorities. However, the matter was finally heard and disposed of on 16.5.2011 where the prayer to stay further proceedings of the suit was disallowed. 4. I have heard learned counsel for both parties in the matter and perused the impugned order at Annexure-3. However, the matter was finally heard and disposed of on 16.5.2011 where the prayer to stay further proceedings of the suit was disallowed. 4. I have heard learned counsel for both parties in the matter and perused the impugned order at Annexure-3. Perused the order of the Director of Consolidation, Orissa, Cuttack in Consolidation Revision No.3533 of 2003 which was filed by the plaintiff impleading the present petitioner as opposite party challenging the recording of the present petitioner along with him in the finally published Consolidation Record of Right. The said revision was disposed of by the Director, Consolidation and the matter was remanded back to the Consolidation Officer, Tihidi to hear the matter afresh with regard to the correction of records as it needs verification of records along with the documents. When the matter was remanded back to the Consolidation Officer, Tihidi the said Consolidation Officer, Tihidi disposed of the Remand Revision Case nos.3531, 3532 and 3536 of 2003 on 28.9.2005 directing the name of the present petitioner to be deleted from the record of right i.e. in respect of Hal Khata No.823, 684, 254 and 683. Challenging such order of the learned Consolidation Officer, Tihidi the present petitioner has filed appeals before the Deputy Director, Consolidation, Bhadrak which have been registered as D.D. Appeal Nos.6, 7, 8 & 9 of 2006 on 20.2.2006 and those were directed to be put up before the Deputy Director for perusal and orders. 5. There is no dispute about the aforesaid facts. Learned counsel appearing for the opposite parties also very fairly conceded to the fact that the challenging the entries in the record of right published by the Consolidation Authorities the matter is sub-judice before the Consolidation Authorities. But the only grievance of the learned counsel for the opposite parties is that the post of Deputy Director, Bhadrak is lying vacant and there is no certainty as to when the said appeals would be disposed of and if the said Civil Suit would be stayed, great harassment would be caused to the plaintiff. 6. But the only grievance of the learned counsel for the opposite parties is that the post of Deputy Director, Bhadrak is lying vacant and there is no certainty as to when the said appeals would be disposed of and if the said Civil Suit would be stayed, great harassment would be caused to the plaintiff. 6. Admittedly, there is no controversy over the fact that with the order of remand passed by the Director of Consolidation in Consolidation Revision No.3533 of 2003, the controversy which centers around with regard to joint recording of the name of the petitioner as well as opposite party in respect of the suit Schedule property the matter has been reopened and it can safely be held that in respect of the suit Schedule property the matter has been reopened and it can safely be held that in respect of the suit properties the consolidation operation has not attained its finality as the appeals are pending before the appropriate authority against the orders of the Consolidation Officer, Tihidi. 7. There is no dispute regarding the settled position of law that the question of title can be decided by the Consolidation Authorities but the Consolidation Authorities have no power to grant relief of permanent injunction and in that context we can profitably refer to the decisions of this Court as reported in 2010 (II) OLR 379 Netrananda Behera v. Khetrabasi Behera, 1990 (I) OLR 511 Prafulla Kumar Behera v. Mangalu Samal, 1991 (II) OLR 158 Budhi Dei v. Kalu Muduli and others. The position with regard to stay of the suit where consolidation proceeding in respect of the suit land is pending has been succinctly stated in another decision of this Court as reported in 1987 (I) OLR 403 Sadhu Charan Das v. Sri Raghaba Mallik and others that is as to what the Court should do with regard to abetment of the suit under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 and also where stay of the suit would be considered. This Court has observed that the stay of the suit must be understood in the background of the facts and circumstances of a case. 8. This Court has observed that the stay of the suit must be understood in the background of the facts and circumstances of a case. 8. Attention of the Court was drawn to the order of this Court in W.P.(C) No.8016 of 2006 dated 13.9.2007 where liberty was given to the petitioner to approach the Civil court regarding the allegation of fraud alleged to have been played on her in filing a compromise petition before the Deputy Director Consolidation, Bhadrak. I have gone though the said order in detail and found that the facts of that case are different from the facts of the Civil Suit i.e. C.S. No.102 of 2003-1. Thus the decision in W.P.(C) No.8016 of 2006 has no application to this case and the learned Civil Court have gone wrong in applying that case to the facts of this case. 9. In the instant case, the suit is filed for declaration that the entries made in the finally published consolidation record of right in respect of 'A' Schedule properties to be illegal and void and also for permanent injunction restraining the present petitioner of coming over the suit land and laying any claim over the same and when challenging the recording of the name of the present petitioner along with opposite parties in the consolidation record the appeal is still pending in the Court of Deputy Director of Consolidation, Bhadrak which has been registered and when admittedly the prayer for permanent injunction cannot be granted by the Consolidation Authorities and it can only be considered by the Civil Court, it would have been proper on the part of the learned Trial Court to stay further proceedings in C.S. No.1 02 of 2003-1 and could have awaited till disposal of the Consolidation Appeals by the Deputy Director where those are pending. In situation like this, since the Consolidation Authorities have exclusive jurisdiction in the matters of title, the trial Court should await till adjudication of title by the authorities under the Act. 10. Accordingly, the impugned order dated 16.5.2011 in C.S. No.102 of 2003-1 passed by the learned Civil Judge (Sr. Divn.), Bhadrak is set aside. Let further proceedings of the suit as has been referred to above be stayed till disposal of the Consolidation Appeal Nos.6 to 9 of 2006. 11. 10. Accordingly, the impugned order dated 16.5.2011 in C.S. No.102 of 2003-1 passed by the learned Civil Judge (Sr. Divn.), Bhadrak is set aside. Let further proceedings of the suit as has been referred to above be stayed till disposal of the Consolidation Appeal Nos.6 to 9 of 2006. 11. The appropriate authorities i.e. the Commissioner, Consolidation and Director of Consolidation, Orissa should make arrangement for immediate disposal of D.D. Appeal Nos.6 to 9 of 2006 which are pending in the Court of Deputy Director of Consolidation, Bhadrak if not already disposed of. If the Presiding Officer i.e. Deputy Director, Consolidation, Bhadrak has not yet joined, the matters may be assigned to any other competent authority for taking up the appeals as parties cannot suffer for the inaction of the State in such matters. With the aforesaid observation and direction, the writ petition stands disposed of. Let copy of the order be furnished to the Commissioner-cum-Secretary, Revenue & Disaster Management Department, Government of Orissa, Bhubaneswar, Commissioner of Consolidation and Settlement Bhubaneswar, Director Land Records and Surveys, Director of Consolidation, Cuttack and Commissioner of Consolidation, Cuttack for necessary compliance. Petition disposed of.