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2015 DIGILAW 546 (ORI)

Chitrasen Mirdha @ Chitra Bag v. Kunti Mirdha

2015-09-16

D.DASH

body2015
JUDGMENT The appellant is the unsuccessful defendant. The suit has been filed by the respondent as the plaintiff for declaration of the right, title and interest over the land described in the schedule of the plaint and confirmation of possession and also for injunction restraining the defendant-appellant from entering upon the suit land. The same having been dismissed on appeal had been filed. The lower appellate Court has allowed the appeal by passing a decree for permanent injunction restraining the defendant-appellant from entering into the suit land and from creating any disturbance over the peaceful possession of the plaintiff-respondent. 2.For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the Court below. 3.The case of the plaintiff’s is that one Nabin Karmi being owner was in possession of the suit land and he has transferred the same to the defendants for valuable consideration followed by delivery of possession .The sale was evidenced by way of execution and registration of sale-deed on 16.12.2008.The plaintiff claims to be the in possession of the same since then. It is alleged there arose the defendant created disturbance in her peaceful possession and thus there arose the occasion for the plaintiff to lodge a report at the concerned police station which has led to the filing of the suit. 4.The defendants appearing in the suit, contested the same, taking a specific plea that suit land is a piece of Government land and has been acquired by the Irrigation Department for the purpose of Canal. But after that and construction of the canal, the defendant claims to be in possession of the suit land with other contiguous land for last 40 years. He further states that encroachment cases have been initiated against him for the same. He also denied the allegation as regard creation of any disturbance in the possession of suit land by the plaintiff. According to him, no such occasion had arisen in fact The trial Court framing relevant issues has taken up issue no.3 and 4 first for decision. Those are as to whether the plaintiff has right, title and interest over the suit land and if the suit land is a piece of Government land in possession of the defendant. The trial Court in view of Ext. Those are as to whether the plaintiff has right, title and interest over the suit land and if the suit land is a piece of Government land in possession of the defendant. The trial Court in view of Ext. J, a notice issued by Joint Commissioner, Consolidation in the matter of a consolidation revision no.627 of 2009 as well as Ext. H, a letter of consolidation Officer as regards non-publication of notification under Section 41 (1) of the OCH & PFL Act, held the jurisdiction of Civil Court to be barred under Section 51 of the Act so far as the reliefs claimed in the suit other than the relief of permanent injunction is concerned. The trial Court then has held that the plaintiff is not in possession of the suit land and in view of that the suit has been dismissed. The lower appellate Court accepted that legal position that the jurisdiction of the Civil Court is barred under Section 51 of the Act to decide the question of right, title and interest over the suit land since there has been no notification under Section 41 (1) of the Act and particularly when the revisions are pending before the Joint Commissioner Consolidation. However, going to other issues as regards the possession, the lower appellate Court having taken the evidence on record into consideration and basing upon that consolidation ROR and also being carried away by the presumption flowing therefrom as also taking other documents into consideration, has gone to hold that the plaintiff has well proved his possession over the suit land and that the defendant is creating disturbance in the peaceful possession of the plaintiff over suit land. So saying it has held the plaintiff to be entitled to get a decree for permanent injunction in reversal to the finding of the trial Court that it is defendant who is in possession of the suit land. So saying it has held the plaintiff to be entitled to get a decree for permanent injunction in reversal to the finding of the trial Court that it is defendant who is in possession of the suit land. 5.The appeal has been admitted on the following substantial questions of law :- (i)Whether the lower appellate Court in view of the pendency of Consolidation Revision No.627 of 2009 and 07 of 2010 ought to have stayed his hand in further going to decide grant or refusal of the prayer for permanent injunction on the basis of the claim of competing title over the suit land which is also the subject matter of adjudication by the revisional authority under the OCH & PFL Act, 1972 ? (ii)Whether the lower appellate Court has erred in law by passing the decree for permanent injunction during pendency of the Consolidation Revision No.672 of 2009 and 07 of 2010 in view of his own finding that for the said pendency, the civil Court’s jurisdiction to go into the question of right, title and interest of the parties over the suit land is not exercisable? (iii)Whether the lower appellate Court has granted the decree for permanent injunction without keeping in view that if the decree for permanent injunction is granted, ultimately the plaintiff becomes unsuccessful in the revision would this decree still be enforceable and then how would be the remedy worked out them ? 6.Learned counsel for the appellant submits that when it came to the notice of the Courts below that the Joint Commissioner Consolidation, Sambalpur is in seisin of those revisional proceedings concerning the subject matter of the suit in order to decide the right, title and interest of the parties, the Courts below ought to have stayed the suit awaiting decision of the Joint Commissioner and thereafter would have gone to dispose of the same accordingly, since in the suit there remains not only with the prayer for declaration of right, title and interest, but also the prayer for issuance of permanent injunction. In support of a submission, he has placed reliance on the decisions of this Court in case of Prafulla Kumar Behera v. Mangalu Samal, 1990 (I) OLR 511 Budhi Dei v. Kalu Muduli & Others; 1991 (I) OLR 158 and Smt. Annapurna Tripathy v.Prafulla Ku. Panigrahi & Others; 2012 (I) OLR 661. In support of a submission, he has placed reliance on the decisions of this Court in case of Prafulla Kumar Behera v. Mangalu Samal, 1990 (I) OLR 511 Budhi Dei v. Kalu Muduli & Others; 1991 (I) OLR 158 and Smt. Annapurna Tripathy v.Prafulla Ku. Panigrahi & Others; 2012 (I) OLR 661. Learned counsel for the respondent submits that even in the situation that the Joint Commissioner, Consolidation ultimately decides the right, title and interest of the defendant in respect of the suit land then in that event, the decree for permanent injunction would automatically stand nullified and loose its legal force. Therefore, according to him, at this stage, there is no need to further keep the suit alive as the Commissioner’s finding would ultimately prevail upon to see as to who has the right to possess and then in the changed situation, the successful party can very well take recourse to the appropriate legal proceeding as per law. 7.It is the settled position of law that the consolidation authority has no power to grant the relief of permanent injunction and therefore, such a suit is well maintainable in the civil Court during the consolidation operation beginning with the notification under Section 3 of the Act, even when the publication of the notification under Section 41 (1) of the Act is awaited. In this suit the plaintiff has sought for declaration of his right, title, interest as well as confirmation of possession and over and above there is a prayer for grant of permanent injunction. It goes without saying that such grant of relief of permanent injunction in the suit of this nature with the pleadings as its stands is dependent upon the finding on the question of right, title and interest of the plaintiffs, so far as the suit land is concerned. In such suit only in case where the Court is unable to decide the right, title and interest of the plaintiff, or the defendant, as asserted them, in that event simply rendering the finding as regards possession, it may accordingly pass the decree for permanent injunction or refuse to pass it. In such suit only in case where the Court is unable to decide the right, title and interest of the plaintiff, or the defendant, as asserted them, in that event simply rendering the finding as regards possession, it may accordingly pass the decree for permanent injunction or refuse to pass it. 8.In the case in hand, the fact remains that the matter concerning right, title and interest of the parties over the suit land is pending before the Joint Commissioner, Consolidation one filed by defendant i.e., Consolidation Revision no.672 of 2009 and another filed by plaintiff i.e., Consolidation Revision no.07 of 2010 and so far as the grant of said reliefs as prayed for are concerned in view of the provision of Section 51 of the Act, the power of civil Court does no more remain upon deciding the issues relating to those. So also the civil Court has no power to judge the legality and propriety of the order of the revisional authority under the Act, on those aspects of right, title and interest of the parties over the suit land at any later point of time. 9.It has been held in the case of Sadhu Charan Das vrs. Sri Raghaba Mallik and others 1987 (I) OLR 403 that when all the reliefs are outside the purview of the Consolidation Authorities the suit could not be held to have abated under Section 4 (4) of the Act. So the civil Court has the jurisdiction to try and dispose of the suit in all respects and there is no question for the Court to feel any constraint in proceeding with the suit. The suit was for permanent injunction and damage. In the case of Srinibas Jena and others vrs. Janardan Jena and others AIR 1981 Orissa-I (F.B.) it was a suit for declaration of title, for possession and claim of damage.The Court held that ancillary relief of claim for damage could appropriately be considered after the question of title and possession were decided in the consolidation operation. In case of Mangalu (supra), it was a suit for declaration of title and recovery of possession. The view taken is that if title of the plaintiff is decided by the authorities under the Act, he would have to file another suit for recovery of possession since possession cannot be given under the Act. In case of Mangalu (supra), it was a suit for declaration of title and recovery of possession. The view taken is that if title of the plaintiff is decided by the authorities under the Act, he would have to file another suit for recovery of possession since possession cannot be given under the Act. So it was felt that complications may arise in view of Section 26 read with Article 64 and 65 of the Limitation Act. The Court therefore held that while passing the order of abatement, civil Court is to keep in mind that the object of the Act is not defeated and parties are not prejudiced. So it was held that ideal order in that given situation was to stay trial of the suit which depends upon adjudication of title by the authorities under the Act since these authorities have the exclusive jurisdiction in the matter of title. Thus setting aside the order of abatement as passed, the hearing of the appeal was directed to be stayed pending finalization of the consolidation proceeding. In case of Budhu Dei (supra), the suit was filed on 14.07.1986.The consolidation operation started in the area prior to that and thus the suit was filed during the consolidation operation. There the plaintiffs instead of seeking partition in the suit preferred to effect the same in the consolidation proceeding and the suit properties were partitioned, shares were allotted. As no interest of the plaintiffs was specified in that suit house, he had carried an appeal and the same having been dismissed, the matter was pending before the Commissioner, Consolidation. So, this Court relying in the case of Prafulla (supra) having held that the suit regarding the permanent injunction does not abate, however stayed further proceeding of the suit till the title of the plaintiff in respect of the suit land was decided by the consolidation authority since said declaration of title and recovery of possession and the relief of title can only be given by the consolidation authorities, but not the recovery of possession. 10.New adverting to the present case, it is seen that the lower appellate Court has given much stress on the sale deed, Ext.1, the record of right prepared by the consolidation authorities, Ext.2 in arriving at a finding with regard to the possession of the suit land and mainly those have been held as the trimuph cards for the plaintiff. In many a places it has been said that for such documents, there remains the right of the plaintiffs to possess the suit land. Moreover, it has drawn presumptions there from. The lower appellate Court at this juncture has fallen into error by going to hold as above by completely ignoring the fact that the record of right being under challenge in two consolidation revisions wherein the right, title and interest of the parties, awaits for decision. In that view of the matter, the lower appellate Court at that point of time ought to have directed its attention as to if instead of going to judge the sustainability of the finding of the trial Court on the issue of possession in order to grant or refuse the permanent injunction to the plaintiffs, the ideal course if would have been to stay further proceeding of the appeal awaiting the decision in the consolidation revisions taking into consideration the ratio of the decisions of this Court as referred to in the foregoing para and thereafter to decide the next course of action accordingly. The above path having not been followed, the judgment and decree passed by the lower appellate Court are held unsustainable in the eye of law. The substantial question of law thus receive their answers accordingly. 11.In view of the aforesaid discussions and reasons, the appeal stands allowed and in the facts and circumstances without cost. The matter is remitted to the lower appellate Court to first of all consider as regards the stay of further proceeding of the appeal till disposal of the Consolidation Revision no.927 of 2009 and 7 of 2010 by the Joint Commissioner, Consolidation and only after deciding the said matter, it would have to further proceed with the appeal accordingly. Appeal allowed.