SANTIPRIYA JENA Vs. REBATI NAIK

JUDGEMENT

(1.) The plaintiffs in Title Suit No. 78 of 1986 of the Court of Munsif, jagatsinghpur are the petitioners in this revision challenging the legality of the order passed by the learned Munsif on 10 -5 -1989 holding that the said suit has abated Under Section 4(4) of the Consolidation of Holdings and Prevention of Fragmentation of Land Act (hereinafter called the 'Consolidation Act').

(2.) THE simple question for consideration in this revision is that whether in the facts and circumstances of the case a suit for partition would abate as has been held in this case by the learned Munsif. The plaintiff prayed for partition claiming interest in the suit properties as daughters of one H'whikesh Jena. Their case is that the property in respect of which patition sought for, belonged to their father, and they being the only legal representatives, left behind after his death, they are entitled to succeed to their father's interest. It has been alleged in the plaint that the husband of defendant No. 1 obtained a registered deed on 19 -1 -1976 which Hrushikesh Jena executed with the bona fide belief that it is a deed of mortgage whereas the said document has now been found to be a deed of sale. The plaint allegations are that the said document was obtained by the husband of: defendant No. 1 by exercising fraud and undue influence on Hrushfkesh and the contents of the said document were never read over and explained to him nor did Hrushikesh understand the import and contents thereof. On the basis that the said document has not conveyed any title in favour of the transferee, the plaintiffs have prayed for partition of the said property claiming that they still have interest therein unaffected by the alleged sale deed dated 19 -1 -1976.The case of the defendants in the trial Court is that the sale deed was executed by Hrushikesh fully understanding the contents and import thereof and there was no fraud or undue influence exercised in the matter of execution of the said document. Thus, their case is that Hrushikesh having transferred the property during his life lime under valid deed of conveyance, the plaintiffs have no title and hence no locus standi to claim for partition.

(3.) THE pleadings of the plaintiffs are to the effect that the sale deed in question would not bind the plaintiffs as it was fraudulently obtained from Hrushikesh by misrepresentation without reading over the contents thereof. It has also been stated that the executant of the docu - ment,nameiy Sri Hrushikesh Jena was not aware of the import and contents of the document. The question, therefore, arises as to whether the document dated 19 -1 -1976 is necessary to be declared void by the Court having jurisdiction. If such a declaration is necessary, the Consolidation authority would have no jurisdiction to give such declaration which the Civil Court alone can give. This Court has emphasised time and again that. for the pupose of determining the nature and character of a suit for the purpose of considering whether if would abate under Sec 4(4) of the Consolidation Act, it is always necessary to look to the substance of the pleadings and not merely the forms of the pleadings of the plaintiff alone or the prayer made by him, vida 57 (1984) C L. T. 417 Sridhar Mohanty v. Kamal Kumar Aagarwalla).