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2013 DIGILAW 21 (ORI)

Hari Priya Sahoo v. Jagar Sahoo

2013-01-16

M.M.DAS

body2013
JUDGMENT M.M. DAS, J. : The petitioner, who is the plaintiff in C.S. No.118 of 2007 filed in the Court of the learned Civil Judge (Junior Division), Kendrapara has called in question the order dated 16.8.2010 passed in the said suit by which the learned trial Court has held that the suit abates under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, ‘the Act’). 2.The suit was originally filed by the petitioner for a decree for permanent injunction restraining the defendants - opp.parties from interfering with her peaceful possession of her purchased plot No.4097 constituting an area of Ac.0.17 decimals. Subsequently, the plaint was amended and a prayer for declaration of right, title, interest and possession over the boundary wall existing on a portion of the suit land was introduced. Admittedly, the area in which the suit schedule property is situated is under consolidation operation. The opp.parties filed an application under Section 4(4) of the Act, inter alia, making a prayer that necessary order regarding abatement of the suit under the said provision of the Act may be passed and the suit be abated. An objection was filed to the said petition by the petitioner-plaintiff not disputing that the area is under consolidation. The learned trial Court after hearing the parties passed the impugned order of abatement of the suit holding that the plaintiff having prayed for declaration of right, title, interest and possession over the boundary wall, which situates on a portion of the suit land, it is necessary to decide the inter se right of the parties over the said wall for passing a declaratory right and as the consolidation operation is continuing, the civil Court lacks jurisdiction to entertain the matter. 3.Mr. Das, learned counsel for the petitioner vehemently urged that the suit is basically for demarcation of the boundary between the purchased land of the plaintiff and the defendants. The purchase being disputed, the suit cannot be nomenclatured as a suit involving any dispute with regard to title of the parties over the property in question. 3.Mr. Das, learned counsel for the petitioner vehemently urged that the suit is basically for demarcation of the boundary between the purchased land of the plaintiff and the defendants. The purchase being disputed, the suit cannot be nomenclatured as a suit involving any dispute with regard to title of the parties over the property in question. 4.Learned counsel for the opposite parties, on the other hand, contended that this Court, in the case of Bhagaban Prasad Das v. Narayan Das, 9 (1980) CLT 132 in a suit for permanent injunction held that though the suit is in the garb of a simple suit for permanent injunction, yet it involves questions relating to right and interest and the plaintiff has to get rid of the cloud. Hence, though a suit for permanent injunction, as such, has not been expressly referred to in Section 4(4) of the Act, the Court necessarily would have to adjudicate upon the right or interest of the plaintiff having regard to the claim of the defendants before granting a decree for permanent injunction. Such a suit, by virtue of Section 4(4) of the Act shall stand abated. He further contended that the ratio of the said decision will be squarely applicable to the facts of the present case and no infirmity can be found in the impugned order. 5.Considering the facts of the present case, this Court is of the view that the analogy of the decision in the case of Bhagaban Prasad Das (supra) can be drawn to the facts of the present case where in the garb of boundary dispute, the plaintiff seeks to claim declaration of his right, title and interest over a portion of the boundary wall existing on the suit land. Since admittedly the consolidation operation is in force, such a relief cannot be granted by the civil Court involving disputed question with regard to title and interest over the boundary wall. Hence, the provision of Section 4(4) of the Act will be squarely applicable and the trial Court has rightly held that the suit abates. 6.In the result, this Court finds no merit in the writ application, which is accordingly dismissed. There shall be no order as to cost. All pending Misc. Cases stand disposed of. The order of status quo passed on 23.09.2010 stands vacated. Ordered accordingly.