Research › Search › Judgment

Orissa High Court · body

2013 DIGILAW 461 (ORI)

Prafulla Behera v. Sudhamani Behera

2013-10-30

S.K.MISHRA

body2013
Judgment : S.K. Mishra, J. : The defendant no. 2 of Civil Suit No.158 of 2012 of the court of Civil Judge (S.D.), Puri has assailed the order dated 05.07.2013 passed by the said court rejecting an application for stay of further proceeding of the suit on the ground that a revision is pending before the Commissioner, Consolidation, Orissa, Bhubaneswar relating to the subject matter involved in the suit. 2. The defendant no.2-petitioner states that in respect of properties situated in mouza Inchal, Bairipur and Beherana, he has filed consolidation revision nos. 262, 263 and 264 of 2013 before the Commissioner, Consolidation, Orissa, Bhubaneswar, The defendant no.2 claims that the decision of the consolidation authority has bearing on the suit and, therefore, he prayed that till disposal of the consolidation revision, the hearing of the suit be stayed. 3. The plaintiffs-opposite parties had filed objection to the petition wherein they stated that the petition has been filed in a careless manner, when opposite party no.2, who is an old lady, has come to the court to give evidence. They stated that the petition has been filed with an intention to stop the recording of evidence of opposite party no.2. They further stated that when the date was fixed for giving evidence and plaintiff no.2 came to the court for such purpose, at that time the petition for stay has been filed, which is an after thought. It is further stated that the defendants have filed the petition to harass the opposite party no.2, who is aged about 80 years. They further claimed that the said revision cases pending before the consolidation commissioner do not relate to the suit land and the petition does not show for whose property the present cases are filed and the same is not clear from the petition. It is also stated that the petition for stay does not reveal whether the revision case has been admitted or not and whether the delay has been condoned or not. It also does not reflect whether notice has been issued or not. The certified copy of the order-sheet has also not been filed for appreciation of the court. It is further stated that the revision has been filed in the year, 2013 which is much after filing of the suit in 2012. It also does not reflect whether notice has been issued or not. The certified copy of the order-sheet has also not been filed for appreciation of the court. It is further stated that the revision has been filed in the year, 2013 which is much after filing of the suit in 2012. However, the defendant no.2 slept over the matter and all of a sudden, has filed the revision to frustrate the issues involved in the suit, i.e. defendant no.2 is adopted son of plaintiff no.2 and her husband. Such issues cannot be decided by the consolidation commissioner as he has no jurisdiction in that regard and during consolidation the status of defendant no.2 was not raised and the consolidation ROR has been published and that the consolidation authority has no jurisdiction to decided the fraud, alleged against defendant nos. 2 and 3, who have obtained the alleged deed of adoption along with the husband of defendant no.3 on false representation. The plaintiffs, therefore, claimed that there is no reason to stay further proceeding of the suit. It is further case of the plaintiffs-opposite parties that the revision has been filed after notification under Section 41 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short ‘the OCH & PFL Act’) and, therefore, it cannot be a ground for stay of the civil suit. Accordingly, the opposite parties prayed to reject the petition. 4. After hearing the parties and perusal of the records and materials available on record, the learned Civil Judge (S.D.) has come to the conclusion that the petition is not only misconceived but also the same is devoid of any merit and accordingly, the same was rejected. 5. In course of hearing, learned counsel for the petitioner has relied upon a number of cases and has contended that the question of status of a person can be adjudicated by the consolidation authority. In this regard, he relied upon the reported case of Jairam Samantray vs. Baikuntha Samantaray and others, 1991 (I) OLR 29, wherein the Division Bench has held that the questions relating to right, title, interest and liability in any land are to be decided by the consolidation authorities except those which can be decided by the Civil Court and are, therefore, out of bounds to them. The Court further held that in deciding questions of right, title, interest and liability in land, questions and issues relatable thereto arise for decision. The Court also held that the decisions on the question of right, title, interest and liability depend and hinge on the decision on the connected questions, which have to be decided ancillary and incidentally. Sometimes, in order to secure the relief, the suitor has to clear hurdle and impediment standing on the way. It was further held that those hurdles may be judgment or order of the court or a document. It was also held that so long as the hurdle stands on the way, grant of relief is not possible and permissible. It has to be removed. The Court further held that the Civil Court alone has the jurisdiction to set aside judgment or order or a document of transfer. A distinction has been drawn between the documents of transfer which are void and those are voidable. Void documents or transactions being ab initio void, they are non est and, therefore can be ignored. The Court further ruled that they being non-existent are not really hurdles on the way, but documents, transactions, judgments and orders, which are not void ab initio, are to be avoided. Until avoided, they bind the party and are impediments. The Court further ruled that the jurisdiction to set aside such document, transaction, judgment or decree, which is voidable and needs avoidance, vests in the court but not in the consolidation authority. The questions, which do not necessitate interpretation of the Civil Court for the removal of the obstacle and can be ancillary and incidentally decided and on the resolution of which would depend the decision as to right, title, interest and liability in land, are within the jurisdiction of the consolidation authority. Seeking a declaration simpliciter as to legal character as contemplated by Section 34 of the Specific Relief Act is exclusively within the jurisdiction of the Court and not within the competence of the consolidation authority. Therefore, it further held that except in case where title is claimed on the basis of transaction inter vivos in most cases title is claimed on the basis of relationship, say as son, father, mother, husband or wife etc. It was further held that in each such question of relationship is a question pertaining to legal character or status. Therefore, it further held that except in case where title is claimed on the basis of transaction inter vivos in most cases title is claimed on the basis of relationship, say as son, father, mother, husband or wife etc. It was further held that in each such question of relationship is a question pertaining to legal character or status. It was held that the consolidation authorities decide such question of legal character in cases after cases day in and day out. So, the consolidation authority has jurisdiction to decide the question as to whether a person is son by birth, by what logic or law are they denied jurisdiction to decide if a person is son by way of adoption ? The Division Bench in the afore-stated case has taken note of the case of Puni Bewa and another vs. Ananta Sahoo and others, 47(1979) CLT 494 and held that the consolidation authority has the jurisdiction to decide status of a person even if the same is based on assertion of adoption, if such question is ancillary and incidental to the determination of right, title, interest and liability over the land in question. Similar view has been expressed by this Court in Sadasiba Palei & others vs. Sabitri Patra and others, 2010 (II) CLR 203, 2010 (Supp. II OLR (NOC) 1110. 6. There is no dispute regarding the proposition of law but the question, which is to be adjudicated in this matter, is whether the ratio decided in the aforementioned cases are applicable to the present case. It is admitted that the notification under Section 41 of the OCH & PFL Act has been issued long since and, in the meantime, 15 to 20 years have elapsed. After filing of the suit, the petitioner has filed the revision application and thereafter he filed application for stay of the suit in question. It is not borne out from the records that whether delay in filing the consolidation revision has been condoned or not and if the revision petitions have been admitted. It is also not borne out from the records that notice has been issued to the opposite parties. 7. Thus, in that view of the matter, this Court comes to the conclusion that the petition filed by the present petitioner is an abuse of process of law. It is also not borne out from the records that notice has been issued to the opposite parties. 7. Thus, in that view of the matter, this Court comes to the conclusion that the petition filed by the present petitioner is an abuse of process of law. It is evident from the fact that the consolidation revision has been filed after long lapse of time, i.e. after filing of the suit. Therefore, the view taken by the learned Civil Judge (S.D.), Puri is correct and it requires no interference. The writ petition is, therefore, devoid of merit and the same is dismissed. The interim order dated 22.07.2013 passed in M.C. No.14698 of 2013 stands vacated. Petition dismissed.