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2019 DIGILAW 125 (ORI)

Sarat Pradhan v. Kailash Chandra Parida

2019-02-13

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. 1. This petition challenges the order dated 04.04.2018, passed by the learned Civil Judge (Senior Division), Nimapara in C.S. No. 451 of 2015, whereby and whereunder, the trial court rejected the application of the defendants-petitioners under Order-7 Rule-11 CPC to reject the plaint. 2. Plaintiffs-Opposite party nos. 1 to 46 instituted the suit for declaration of title, that the sale-deed dated 24.7.2010 is illegal and void, that the remand order dated 3.2.2004 passed by the Director, Consolidation, Orissa, Cuttack, in R.C. No. 1466 of 2000 is without jurisdiction and consequently the order passed by the C.O. Nimapara dated 31.12.2005 and the order dated 29.10.2007, passed by the Additional Tahasidlar, Pipili, in Mutation Case No. 3015 of 2007 are illegal and permanent injunction impleading the petitioners and opposite party no. 47 as defendant nos. 1 to 3. 3. The case of the plaintiffs is that Schedule-A to L property originally belonged to ancestors of Brajaballav Satapathy and others. To press their legal necessity, they sold the land on 31.1.1958 to the bhag tenants by means of different registered sale-deeds. Father of defendant no. 3 was an attesting witness to the sale-deeds along with other co-sharers. Possession was delivered to the vendees. The ROR has been published in the name of the vendees in the year 1966. During the consolidation operation, Record of Right has been published in the year 1994 in the name of the vendees or their legal heirs in case of death of any of the vendees. The plaintiffs are in possession of the land from the time of their ancestors. Long after publication of the consolidation ROR, defendant no. 3 filed Revision Case No. 1466 of 2000 before the Director, Consolidation, Orissa, Cuttack, under Section 37(2) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (OCH & PFL Act) without impleading all the plaintiffs. No notice was issued to the plaintiffs. By order dated 03.02.2004, the Director, Consolidation, Orissa, Cuttack, remanded the matter to the C.O. Nimapara. On the basis of a false report submitted by the process server, the defendant no. 3, by playing fraud on the court, had managed to set aside the consolidation ROR. Defendant no. 3 had also deliberately suppressed the sale-deeds as well as the settlement ROR of the year 1966. Pursuant to the order passed by the Consolidation Officer, defendant no. On the basis of a false report submitted by the process server, the defendant no. 3, by playing fraud on the court, had managed to set aside the consolidation ROR. Defendant no. 3 had also deliberately suppressed the sale-deeds as well as the settlement ROR of the year 1966. Pursuant to the order passed by the Consolidation Officer, defendant no. 3 filed Mutation Case No. 3115 of 2002 before the Additional Tahasildar, Pipili. The petition was allowed on 29.10.2007. Orders passed by the Director, C.O. as well as Additional Tahasildar are illegal and void. Thereafter, defendant no. 3 executed registered sale-deed in favour of the defendant nos. 1 and 2 on 26.7.2010. No consideration was passed, nor possession of the land has been delivered to the petitioners. The sale-deed has not been acted upon. Thereafter, defendant nos. 1 and 2 filed Mutation Case No. 2289 of 2011. The petition was allowed. Defendant nos. 1 and 2 along with other persons have threatened the plaintiffs to surrender possession. With the factual scenario, they instituted the suit seeking the reliefs mentioned supra. 4. Defendant nos. 1 and 2 filed an application under Order 7 Rule 11 CPC to reject the plaint stating inter alia that the subject matter of dispute was before the Consolidation Authority. The plaintiffs were aware of the order passed by the Consolidation Officer. Being aggrieved, they preferred Consolidation Appeal No. 52 of 2006 before the Deputy Director, Consolidation, to set aside the order of the Consolidation Officer in Remand Revision Petition No. 1466 of 2000. During pendency of the appeal, the defendant no. 3 sold the suit land to them by means of registered sale-deeds dated 24.7.2010. Thereafter, they filed mutation case. The Consolidation Authority has been vested with ample power to set aside the order of the Consolidation Officer. Civil Court has no jurisdiction to decide the issue. The jurisdiction of the Civil Court is outsted. During pendency of the appeal before the Deputy Director, Consolidation, they filed the suit. It is further stated that they have filed CMP No. 118 of 2017 before this Court assailing the institution of the suit. A Bench of this Court granted them liberty to file application under Order 7 Rule 11 CPC. During pendency of the appeal before the Deputy Director, Consolidation, they filed the suit. It is further stated that they have filed CMP No. 118 of 2017 before this Court assailing the institution of the suit. A Bench of this Court granted them liberty to file application under Order 7 Rule 11 CPC. Plaintiffs filed objection stating that when consolidation operation is closed and the parties challenged the illegalities committed by the Consolidation Authorities before the Civil Court, the suit may be kept in abeyance, till disposal of the consolidation case. They have filed RC Case No. 85 of 2016 before the Commissioner, Consolidation under Section 37(1) of the Act, which is sub-judice. 5. Learned Trial Court dismissed the petition and assigned the following reasons: "There is no doubt about fact that Sec. 51 of OCH and PLF Act bars entertainment of a suit when right, title and interest has been decided by the consolidation authorities. It is the settled position of law that while dealing with an application U/o. 7, Rule-11 of C.P.C. the Court is to see whether the plaint reveals any cause of action or not. A plain reading of the plaint reveals that the plaintiffs have rested their claims in the suit, on the allegations of fraud played by the defendant no. 3. In the aforesaid full bench decision in the case of Guljar Khan vs. Commissioner of Consolidation and Others, it has been held by the Hon'ble High Court that the jurisdiction of a Civil Court is available when an order is obtain from the hands of consolidation authorities by playing fraud on the party who seeks to approach the Civil Court. It is already discussed above that while dealing with such kind of application, the Court is only required to see the pleading of the plaint and nothing more. If that be so, then the plaintiffs have conspicuously pleaded fraud in their plaint which is an aspect, to be decided by a Civil Court only. At this stage, the Court is not required to probe further into the litigation then to simply decide whether the suit is barred by any law or not. Hence, in the above circumstances a plain reading of the plaint reveals sufficient cause of action for filing the suit and it does not appear to be barred by any Law as such, the prayer of defendant nos. Hence, in the above circumstances a plain reading of the plaint reveals sufficient cause of action for filing the suit and it does not appear to be barred by any Law as such, the prayer of defendant nos. 1 and 2 for rejection of the plaint stands rejected." 6. Heard Mr. Subash Ch. Satapathy learned counsel for the petitioners. 7. Learned counsel for the petitioners submits that during consolidation operation, the suit land has been illegally recorded in the Consolidation ROR in favour of the plaintiffs. Defendant no. 3 filed R.C. No. 1466 of 2000 before the Director, Consolidation, Orissa, Cuttack. The same was remanded back to C.O. Nimapada. The ROR was set aside. Thereafter, the land was mutated in favour of petitioner no. 3 under Section 51 of OCH & PFL Act. The suit is barred. He further submits that sufficient opportunity was provided to the plaintiffs int he consolidation proceeding. The decision of the Consolidation Authority shall operate as res-judicata. 8. Section 51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 reads as under: "51. Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions contained in sub-section (3) of section 4 and sub-section (1) of section 7:- (1) all questions relating to right, title, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction of Revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of this Act by the appropriate authority during the consolidation operations. (2) no Civil Court shall entertain any suit or proceeding in respect of any matter which an officer or authority empowered under this Act is competent to decide." 9. Section 51 of the OCH & PFL Act was the subject matter of consideration before the Full Bench of this Court in the case of Guljar Khan vs. Commissioner of Consolidation and Others, (1993) 2 OLR 194 . The Full Bench summarised the principle as under: "36. We may conclude our views relating to Civil Court's jurisdiction by stating that the same would be available after closure of consolidation operations only in any one of the following circumstances: (i) The cause of action accruing after the closure of the consolidation operations, a/a Suba Sing. The Full Bench summarised the principle as under: "36. We may conclude our views relating to Civil Court's jurisdiction by stating that the same would be available after closure of consolidation operations only in any one of the following circumstances: (i) The cause of action accruing after the closure of the consolidation operations, a/a Suba Sing. (ii) If the consolidation authorities had taken the decision without complying with the provisions of the Act or had not acted in conformity with the fundamental principle of judicial procedure (which would take within its fold the case of violation of natural justice) vide principle No. (ii) of Magulu. (iii) Obtaining of order from the bands of consolidation authorities by playing fraud on the party who seeks to approach the Civil Court, as per Karbalai Begum's case." 10. The plaintiffs assert that in R.C. No. 1466 of 2000 filed before the Director, Consolidation, Orissa, Cuttack, no notice was issued to them. The same is violative of principal of natural justice. Defendant no. 1 had played fraud with the Consolidation Officer, Nimapara, whereafter ROR was set aside. 11. In view of the authoritative pronouncement of the Full Bench decision of this Court in Guljar Khan (supra), the irresistible conclusion is that the Civil Court has jurisdiction to entertain the suit. The suit is not barred. The impugned order does not suffer any illegality or infirmity, warranting interference by this Court under Article 227 of the Constitution. The petition is dismissed. No costs.