Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 427 (ORI)

Radhu Swain v. Nitei @ Nityananda Jena @ Swain

2014-07-17

B.K.NAYAK

body2014
Judgment B.K.NAYAK, J. In this writ petition the petitioners challenge the legality and propriety of order dated 30.07.2005 (Annexure-3) passed by the Commissioner, Consolidation, Orissa, Bhubaneswar-opposite party no.3 in Revision Case No.59 of 2004 under Section 36 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act,1972 (in short ‘Consolidation Act’) 2. The undisputed facts are that the disputed landed property was recorded jointly in the name of Bidya Swain and Jogi Jena in 192728 record of rights. Jogi Jena’s son was Sadhu, who died leaving no natural heir and successor. Baidya had two sons, namely, Chema and Gopal. The relationship of the parties inter se is as per the following Genealogy : Bidya Chema Gopal Padan =Tara(wife) (petitioner no.3) Nityananda Gouranga (opp.party no.1) (opp.party no.2) Radhu Govinda Bishnu (Petitioner no.1) (Petitioner no.2) (Petitioner no.4) 3. It may be mentioned here that Original Suit No.99/486 of 1983/1980 had been filed by Padan, the father of petitioner nos.1, 2 and 4 for partition of the disputed lands and allotment of 50% share in his favour. In the suit, Nityananda had taken the plea that he was the adopted son of Sadhu and was therefore alone entitled to 50% share. The learned Sub-Judge, Puri had passed the decree with a finding that Nityananda was the adopted son of Sadhu and that Padan was entitled to only 1/4th share. Challenging the decree passed in the suit, Padan had filed Title Appeal No.37/111 of 1986/84 before the District Judge, Puri. During the pendency of the Title Appeal, the consolidation operation in the village where the disputed properties situate, having been started, the title appeal as well as the suit were ordered to be abated under Section 4 (4) of the Consolidation Act. 4. Thereafter, Nityananda (opposite party no.1), son of Gopal filed Objection Case No.2287 of 1996 under Section 9(3) of the Consolidation Act praying to record his name in respect of 50% share of Sadhu in the disputed property claiming himself to be Sadhu’s adopted son. Gouranga, the other son of Gopal filed Objection Case No.2312 of 1996 under Section 9(3) of the Act for partition. The Consolidation Officer, Puri by his order dated 30.08.1997 accepted Nityananda as the adopted son of Sadhu and allowed him 8 annas share. He allowed 1/4th share to the writ petitioners, who are the successors of Padan. Gouranga, the other son of Gopal filed Objection Case No.2312 of 1996 under Section 9(3) of the Act for partition. The Consolidation Officer, Puri by his order dated 30.08.1997 accepted Nityananda as the adopted son of Sadhu and allowed him 8 annas share. He allowed 1/4th share to the writ petitioners, who are the successors of Padan. The petitioners filed R.P. No.2155 of 1999 under Section 37(2) of the Act challenging the order of Consolidation Officer, Puri and claimed 8 annas share in the property. They also disputed the adoption of Nityananda by Sadhu. The Director, Consolidation remanded the case to the Consolidation Officer, Puri for partition of the joint holding as per the entitlement of the parties. On remand, the Consolidation Officer allowed the case of the petitioners ignoring the adoption of Nityananda vide order dated 12.10.2000 (Annexure-1). Against that order Nityananda filed Appeal Case No.67 of 2002 before the Deputy Director, Consolidation, Puri. By his order dated 05.01.2004 (Annexure-2) the Deputy Director upheld the order of the Consolidation Officer and dismissed the appeal. Challenging the appellate order, Nityananda-opposite party no.1 filed Revision no.59 of 2004 before the Commissioner, Consolidation, Orissa, Bhubaneswar and the said revision has been allowed by the Commissioner by the impugned order dated 30.07.2005 (Annexure-3) holding that Nityananda is the adopted son of Sadhu. For giving such finding the Commissioner, Consolidation mainly relied upon the decision of the Hon’ble Supreme Court reported in AIR 1994 SC 2733 : Ram Prasad (dead) LRs. and others v. Assistant Director of Consolidation and others and took into consideration the previous finding of the civil court with regard to the adoption of Nityananda by Sadhu given by Sub-Judge, Puri in Original Suit No.99/486 of 83/1980. 5. and others v. Assistant Director of Consolidation and others and took into consideration the previous finding of the civil court with regard to the adoption of Nityananda by Sadhu given by Sub-Judge, Puri in Original Suit No.99/486 of 83/1980. 5. In assailing the revisional order of the Commissioner, Consolidation, the learned counsel for the petitioners submits that the order of the Commissioner, Consolidation that the finding of the learned Sub-Judge in the original suit that Nityananda is the adopted son of Sadhu has to be taken into consideration in view of the principle decided in the case of Ram Prasad (supra) is not sustainable inasmuch as the principle decided in Ram Prasad (supra) has lost its force in view of the subsequent decision of the Hon’ble Supreme Court reported in (2012) 12 SCC 642 : Paras Nath Rai and others v. State of Bihar and others, in which it has been laid down that where the suit as well as the appeal abated, the result is that the very commencement of the civil proceeding came to a naught and, therefore, findings recorded in the said proceeding became extinct. The learned counsel for opposite party no.1, on the other hand, submits that the Commissioner, Consolidation has rightly relied upon the decision of the apex Court in the case of Ram Prasad (supra) and, therefore, the impugned order warrants no interference. 6. Admittedly opposite party no.1 did not choose to lead any oral evidence except relying upon the finding of the trial court in the civil suit which abated and registered deed of acknowledgement of his adoption. The Commissioner of Consolidation in his impugned order has accepted the civil court’s findings with regard to adoption of opposite party no.1, though the suit in which the finding was recorded got abated, at the appellate stage under Section 4 (4) of the Consolidation Act. It is, therefore, necessary to see the principle decided by the apex Court in the case of Ram Prasad (supra).The fact of that case was that a suit was filed for a declaration that a previous decree granted under Section 59 of the U.P. Tenancy Act holding the defendant as a co-tenant with a widow, who was a limited owner, was obtained by fraud and collusion. The suit having been decreed, while the matter was pending at the second appellate stage, the appeal as well as the suit abated because of notification published under Section 5 of the U.P. Consolidation Act bringing the suit village under Consolidation operation. The authorities under U.P. Consolidation Act taking into consideration the finding recorded by the civil court in civil proceeding, which stood abated, held that the previous decree obtained by the respondent was collusive and fraudulent decree and the respondent cannot be said to be a co-tenant with the limited owner. The order of the Consolidation authorities was challenged before the High Court in a writ petition which ended in favour of the respondents. The matter thereafter came before the Hon’ble Supreme Court in Civil Appeal where the court held as follows : “8. Undoubtedly no fresh evidence was adduced in the proceedings before Consolidation Officer except the judgments and decrees of the Civil Court and the appellate Court. The authorities under the Act held that though the civil suit stood abated, the evidence considered by the civil court and the findings recorded therein would be available for consideration and can be relied upon. We find that the view taken by the authorities is well justified. Though the suit stood abated yet the evidence recorded in the suit or appeal and the findings recorded by civil courts do not get wiped out; are entitled to be considered and that, therefore, it being the relevant evidence the authorities under the Consolidation Act, unless contrary evidence is established, could go into the evidence and were entitled to rely upon the findings recorded by the Civil Court in support of its conclusions. … …. …” 7. A similar question came up before the Hon’ble Supreme Court in the context of the Bihar Consolidation Act in the case of Paras Nath Rai and others (supra), where taking into consideration a large number of decisions with regard to the effect of abatement of civil proceeding before the civil court, the Supreme Court came to hold as follows : “30. From the aforesaid enunciation of law it is crystal clear that once a notification has been published under Section 3 of the Act, every suit and proceeding in respect of declaration of rights or interest in any land lying in areas or for declaration or adjudication of any other rights in regard to which proceeding can or ought to be taken under the Act pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on order being passed in that behalf by the court or authority before whom such suit or proceeding is pending shall stand abated with a view to ensure the jurisdiction of the authorities under the Consolidation Act remains unhampered and the said authorities are not obstructed by the proceedings in civil courts and their decisions are not impeded by the decisions of the civil courts. It is also vivid that the purpose of the scheme of consolidation is to avoid conflict of jurisdiction in order to confer jurisdiction on the consolidation authorities who are required to exclusively examine the rival claims of the parties. Apart from that there is conceptual difference between statutory abatement and abatement under the Code of Civil Procedure. On the basis of a statutory abatement, the whole proceeding from its inception stands abated because the local law has provided an effective alternative remedy to be pursued before an exclusive forum to remedy the grievance raised before the court. It has been further pronounced by this Court that nothing remains to be adjudicated before the civil court and it is apt to note that in Satyanarayan Prasad Sah this Court had held that the High Court should not have nullified the decree of the trial court but should have declared that the proceedings stood abated which meant that civil proceedings came to a naught, that is to say, the proceedings from its commencement stood abated.” After formulating the question in paragraph-35 of the judgment that ‘if the appeal which is a continuation of the suit had abated whether findings recorded therein could have been relied upon?’, the Hon’ble Court went to hold as follows : “39. … ... Hence, the suit as well as the appeal abated and resultantly the very commencement of the civil proceeding came to a naught and, therefore, findings recorded in the said proceeding became extinct. … ... Hence, the suit as well as the appeal abated and resultantly the very commencement of the civil proceeding came to a naught and, therefore, findings recorded in the said proceeding became extinct. The learned Judge dealing with the writ petition as well as the learned Judges deciding the intra-court appeal did not appreciate the lis in proper perspective and opined that the reliance on the findings recorded by the civil court by the revisional authority under the 1956 Act could not be faulted. The said conclusion is wholly erroneous and deserves to be overturned and we do so.” 8. It is apparent that the principle laid down in the case of Ram Prasad (supra) and & Paras Nath Rai and others (supra) are inconsistent with each other and that both the decisions were rendered by co-ordinate Benches (two Judge Benches). The latter decision has not noticed the decision in Ram Prasad (supra). Now, therefore, the question is which of the two decisions is to be followed. 9. This court in the case of Dutta Pradhan and others v. The State of Orissa : 1985(I) OLR 631 relying on a Division Bench decision of the Bombay High Court reported in AIR 1980 Bombay 341 : Vasant Tatoba Hargude and others v. Dikkaya Muttaya Pujari has held that in the case of conflict between earlier and later decisions of two benches of the Supreme Court each consisting of equal number of Judges, the latter decision prevails. 10. It is also clear from Ram Prasad (supra) that the question whether the finding of a civil court in a civil proceeding which stood abated making the proceeding wholly nonexistent from its very inception, can be taken into consideration by the Consolidation authorities was not directly raised nor argued though the apex Court gave the decision as aforesaid whereas in the latter decision of Paras Nath Rai (supra) the question was directly involved. 11. 11. For the reasons aforesaid, following the decision of the Supreme Court in Paras Nath Rai (supra) it has to be held that the decision with regard to the finding of the civil court (Sub-Judge) with regard to adoption of opposite party no.1 – (which question arises incidentally while considering the question of right, title and interest by the Consolidation authorities)-could not have been taken into consideration by the Commissioner, Consolidation to come to the conclusion that opposite party no.1-Nityananda is the adopted son of Sadhu and hence entitled to 50% share in the disputed property. The impugned revisional order, therefore, cannot be sustained and I set aside the same. The revision is remitted back to the Commissioner, Consolidation to decide the same afresh on the basis of evidence already led by the parties before the Consolidation Officer other than the finding of the civil court in the abated civil suit with regard to the adoption of opposite party no.1 by Sadhu. The revision shall be disposed of within a period of four months from the date of communication of this order. The writ petition is accordingly disposed of. No costs.