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2014 DIGILAW 98 (ORI)

Urmila Tripathy v. Charulata Kar

2014-02-11

B.R.SARANGI

body2014
JUDGMENT B.R. SARANGI, J. 1. The plaintiffs, being the petitioners, have filed this application assailing the order dated 08.10.2013 passed by the learned Civil Judge (Senior Division), Puri in C.S. No. 323 of 2011 rejecting the application filed under Section 151 Code of Civil Procedure (in short CPC) to stay the further proceedings of the suit till disposal of the Revision Case No. 770 of 2011 pending before the Commissioner Consolidation, Bhubaneswar. 2. The short fact of the case, in hand, is that the petitioners, as plaintiffs, filed a suit for declaration of their right, title, and interest, confirmation of possession and for permanent injunction. The plaintiffs claim is that one Ananta Charan Tripathy is the recorded owner of the suit land as per the record of right of 1927, who died in 1952 leaving behind his only daughter namely Fakiri Dei. Niranjan and Bhagaban are the two sons of Maheswar Kar through said Fakiri Dei. Ananta having no male issue, adopted Niranjan and accordingly Niranjan as the adopted son and legal heirs of Ananta, inherited his properties. But during the settlement operation in 1966, Bhagaban, the brother of Niranjan in connivance with Maheswar, his father, managed to record the suit land in their names in exclusion of the name of Niranjan who is the adopted son and successor of Ananta Charan Tripathy. As the dispute arose for the wrong recording between the parties. Maheswar and Bhagaban executed two registered sale deeds bearing No. 1577 and 1576 dated 29.03.1966 in respect of the land recorded in their names in favour of Niranjan to avoid the dispute and disruption between the parties. But during consolidation operation, Niranjan could not take any step and Maheswar and Bhagaban suppressing the aforesaid fact managed to record the suit land in their names although the possession of the suit land was with Niranjan till his death in 2003. After the, death of Niranjan in 2003, the plaintiff-petitioners and proforma defendants inherited the suit property as the legal heirs of late Niranjan and possessed the same in the same manner, but after the death of Niranjan, said Bhagaban in association with his two sons, i.e. present opposite parties 2 and 3 created disturbance in the possession of the plaintiffs. Hence, the suit. 3. Hence, the suit. 3. The defendant-opposite parties by filing written statement challenged the maintainability of the suit on the ground that the Consolidation Authorities being competent to decide right title and interest, and they having hold title in respect of the land in favour of Maheswar and Bhagaban, only legal heir and successor to the interest of Fakiri Dei and the said decision having been arrived at by the competent Authority under Special Act, the same is not open for challenge before the Civil Court after thirty years of final publication of the consolidation R.O.R. Apart from the same the defendant-opposite parties have disclosed the facts of execution of a gift deed by Ananta Charan Tripathy in 1942 in favour of the defendants. Therefore, it is stated that once the Consolidation Authorities decided the title during consolidation operation, the suit in question should be dismissed. 4. Assailing the order of the Consolidation Authorities, the plaintiffs-petitioners filed Consolidation Revision Petition under Section 37 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the OCH & PFL Act), registered as Consolidation Revision Petition No. 770 of 2011, which is pending before the Court of the Commissioner, Consolidation, Orissa, Bhubaneswar. The same having been admitted, notice has been issued to the defendants, who are the opposite parties therein, after filing of the suit for declaration of right, title, interest, confirmation of possession and permanent injunction before the Civil Judge (Senior Division), Puri in C.S. No. 323 of 2011. After the revision petition was entertained by the competent Court, the plaintiffs-petitioners filed an application under Section 151 of CPC with a prayer to stay further proceeding of the suit till disposal of the revision. 5. Learned trial Court rejected the application for stay of further proceedings of the suit in exercise of power under Section 151 CPC by impugned order dated 08.10.2013 stating that the Consolidation Revision being a subsequent proceeding to the suit, Section 10 of CPC cannot be attracted to stay the suit and the decision of the suit will be binding in all respect. Apart from the same, it is further held that since there is de-notification under Section 41 of the OCH & PFL Act and during pendency of the consolidation operation, there is no substantial ground to stay the proceeding of the suit till disposal of the revision. Apart from the same, it is further held that since there is de-notification under Section 41 of the OCH & PFL Act and during pendency of the consolidation operation, there is no substantial ground to stay the proceeding of the suit till disposal of the revision. Hence, the present writ petition. 6. Mr. S.P. Mishra, learned Senior Counsel appearing for the petitioners assailed the order of the learned Court below rejecting the application under Section 151 of the CPC to stay the further proceeding of the suit stating, inter alia, that the provisions contained under Section 10 of the CPC is not attracted since the revision application before the consolidation authority has been filed after institution of the suit and there is no consolidation operation continuing because of the de-notification issued by the authorities under Section 41 of the OCH & PFL Act. It is further contended that the allegation of fraud, as stated in the plaint, is only to the extent that the defendants have got the property recorded in the consolidation proceeding by suppressing the fact as regards the notice. Apart from the same, when the Consolidation Authorities have the power to decide the right, title and interest, in that case the proceeding of the suit should be stayed. The rights of the plaintiffs are based on two registered sale deeds of the year 1966 and any other plea challenging the, 1942 gift deed cannot have any substance for adjudication of the suit as those are incidental to the main relief which can be decided by the Consolidation Authorities. Mr. The rights of the plaintiffs are based on two registered sale deeds of the year 1966 and any other plea challenging the, 1942 gift deed cannot have any substance for adjudication of the suit as those are incidental to the main relief which can be decided by the Consolidation Authorities. Mr. Mishra, learned Senior Counsel for the plaintiffs-petitioners relied upon the decision of this Court reported in Gulzar Khan vs. Commissioner of Consolidation, 1993 (II) OLR 194 (FB), wherein this Court has held that even after closure of the consolidation proceeding, revision is maintainable and the same principle has already been followed in Krushna Chandra Barik vs. Nimai Charan Panda and others, 2003 (I) OLR 66 , Bansidhar Rana and others vs. Minati Bewa and others, 2000 (II) OLR 360, Rama Chandra Parida and others vs. Pramod Kumar Padhiary and another, 2010 (II) OLR 486 : 110 (2010) CLT 668, Netrananda Behera vs. Khetrabasi Behera, 2010 (II) OLR 379 , Budhi Dei vs. Kalu Muduli and others, 1991 (I) OLR 158 wherein it is held that the suit has to be stayed till final adjudication of right, title and interest simultaneously in two parallel proceedings since power has been vested with consolidation authorities to decide the same which is normally to be exercised by the Civil Court and therefore, the exercise of power under Section 151 CPC is warranted. While rejecting the application under Section 151 CPC, the learned trial Court has failed to consider these aspects and passed the impugned order. 7. Mr. A.P. Bose, learned counsel for the defendants-opposite parties urged with vehemence that at this stage this Court should not interfere with the impugned order passed by the learned Court below rejecting the application filed under Section 151 CPC and stated that the plaintiffs have filed the suit on 6.7.2011 challenging the consolidation R.O.R., Exhibit-6 and Exhibit-F from the side of the defendants, which was finally published in the year 1983 on the ground that fraud has been practiced against their predecessor and for declaration of their right, title and interest and has referred to the averments made in paragraphs 3, 4, 4(a) and 6 of the plaint wherein it is stated with regard to the allegation of fraud. He further urged that the consolidation revision under Annexure-4 was filed in November, 2011 much after the institution of the civil suit on 6.7.2011. He further urged that the consolidation revision under Annexure-4 was filed in November, 2011 much after the institution of the civil suit on 6.7.2011. Therefore, the proceeding should not be stayed and rightly the learned Court below has rejected the same. He further argued that even the plaint was amended in the year 2012 but filing of the consolidation revision has also not been pleaded in the averments of the plaint. After the closure of evidence, the petition under Annexure-5 was filed on 29.8.2013 seeking for stay of further proceeding of the suit, which is absolutely misconceived one. Relying upon the judgment of the apex Court in Surya Dev Rai vs. Ram Chander Rai and others, 2003 (II) OLR (SC) 361: AIR 2003 SC 3044 (paragraph 38) he submits that this Court should not interfere with the, impugned order because there is no violation of the parameters fixed in the case itself. 8. In Arnapurna Tripathy vs. Commissioner, Consolidation, 105 (2008) CLT 478, it is held that it is only within the domain of the civil court which can decide the same question of fraud as alleged not the Consolidation Authorities save and except declaration of right, title and interest which has been concluded due to de-notification made under Section 41 of the OCH & PFL Act long since. 9. In Pagal Das and others vs. Upendra Dutta and others, 1989 (II) OLR 347, it is held that if a suit is filed for declaration of title on the ground that the document was taken by practicing fraud then the suit does not abate. 10. In Jhumpamani Bewa and others vs. Khetrabasi Chhotaray, 1986 (II) OLR 9, it is held that even though consolidation operation is closed, yet in respect of cases or proceedings pending before the authority under OCH & PFL Act, it shall be deemed that the proceeding is alive, in the present case, after the notification was issued under Section 41 of the said Act 28 years ago and thereafter the suit was filed and during pendency of the suit, the application filed under Section 37 of the OCH and PFL Act, 1972, would not mean that it is a continuation of Consolidation Proceeding. Reliance has also been placed on the decision of this Court in Manas Ranjan Das and others vs. Consolidation Officer, Pipili and others, 1999 (I) OLR 649, where the distinction of powers under Section 36 and Section 37 of the OCH & PFL Act has been taken into consideration and this Court has held that Section'36(1) provides that if a person feels aggrieved by any decision of the Director of Consolidation, he may file a revision within the time stipulated therein against such decision before the Consolidation Commissioner, who may revise it after giving the parties concerned reasonable opportunity of being heard. Section 37 revision is different from Section 36 revision. A close and careful reading of Section 37(1) of the OCH & PFL Act would show that the Commissioner has the discretion to call for and examine the records of any case decided or proceedings taken by any subordinate authority. Such discretion should not be arbitrary but should be judicious. The purpose for calling for and examining the records is also indicated in the provision itself. It is for the purpose of satisfying himself as to the regularity of the proceedings or as to the correctness, legality or propriety of any order passed by the subordinate authority in the case or proceedings. The Commissioner thereafter may make such order as he thinks fit after giving the parties concerned reasonable opportunity of being heard. 11. In National Institute of Mental Health & Neuro Sciences v. C. Parameswara, AIR 2005 SC 242 referring to Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 it has been held that inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151, CPC, but that jurisdiction cannot be exercised so as to nullify the, provisions of the Code. Where the Code deals expressly with a particular matter, the provision should not normally be regarded as exhaustive. In that present case, as stared above, Section 10, CPC has no application and consequently, it was not open to the High Court to bye-pass Section 10, CPC by invoking Section 151, CPC. 12. Where the Code deals expressly with a particular matter, the provision should not normally be regarded as exhaustive. In that present case, as stared above, Section 10, CPC has no application and consequently, it was not open to the High Court to bye-pass Section 10, CPC by invoking Section 151, CPC. 12. Considering the above contention raised by the parties and perusing the pleadings and materials available on record, the admitted fact is that the consolidation proceeding has been over in respect of the village in question 28 years ago, and de-notification of the consolidation proceeding under Section 41 of the OCH & PFL Act had been made long since. The same having not been challenged by the aggrieved party on a subsequent disclosure of the fact, the suit has been filed by the plaintiffs-petitioners seeking for declaration of right, title, interest, confirmation of possession and for permanent injunction referring to pleadings made in paragraph 3, 4, 4(a) and 6 of the plaint. It is specifically stated that praying fraud in notifying the documents, which had never been challenged before the Consolidation Authorities at any point of time or before the present suit was filed but for the first time in the present suit, such pleadings have been raised by the plaintiff-petitioners. Admittedly after the suit was instituted on 06.07.2011 assailing the consolidation R.O.R in Ext. 6 and Ext. F, consolidation revision under Annexure-4 was filed in November, 2011 and after filing of the revision even though the plaint was amended in the year 2012, filing of such consolidation revision has not been pleaded in the amended plaint, but application was filed under Annexure-5 under Section 151, CPC to stay the suit on 29.08.2013 much after the institution of the suit as well as the consolidation revision filed by the plaintiffs-petitioners even 28 years after the de-notification made under Section 41 of the OCH & PFL Act. The question of jurisdiction of the Consolidation Authorities for consideration of revision under Section 37 of the OCH & PFL Act even after de-notification was made under Section 41 may not have any effect in the present context but it• has got its ramification when there is allegation of fraud in the plaint itself. The question of jurisdiction of the Consolidation Authorities for consideration of revision under Section 37 of the OCH & PFL Act even after de-notification was made under Section 41 may not have any effect in the present context but it• has got its ramification when there is allegation of fraud in the plaint itself. In the plaint itself, the plaintiff-petitioners have made the allegation that during the consolidation operation the defendants have suppressed the fact of execution of registered sale deed in 1963 and further during the consolidation proceeding no notice was served on the plaintiffs. As such, the defendants have played fraud on the plaintiffs and managed to record the suit land in their names in the consolidation operation. 13. The apex Court in Meghmala and others vs. G. Narasimha Reddy and others, 2010 (II) OLR (SC) 778: (2010) 8 SCC 383 , held in paragraphs 28 to 35 as follows:- "28. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of law. Fraud avoids all judicial acts, ecclesiastical or temporal (Vide S.P. Chengalvaraya Naidu vs. Jagannath) In Lazarus Estates Ltd. vs. Beasley the Court observed without equivocation that (QB p. 712) No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. 29. In A.P. State Financial Corp. vs. GAR Re-Rolling Mills and State of Maharashtra vs. Prabhu this Court observed that a writ Court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the Courts are obliged to do justice by promotion of good faith. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law. 30. In Shrisht Dhawan vs. Shaw Bros, it has been held as under (SCC p. 553, para 20) "20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct." 31. In United India Insurance Co. Ltd. vs. Rajendra Singh this Court observed that Fraud and justice never dwell together."