MADAN MOHAN SAMANTRAY Vs. UNION OF INDIA

JUDGEMENT

(1.) THE plaintiff is the appellant against the judgment and decree of the Subordinate Judge, Bhubaneswar, dismissing the plaintiff's suit on a finding that the suit is not maintainable.

(2.) THE plaintiff alleged that the plaintiff had purchased the disputed property from one Ushamani Mahapatra and, thereafter, constructed a building on the said land with his own money. On November 16, 1973, he had executed a sale deed in favour of defendant No. 3 who is his daughter, but the said document was a sham one and was never intended to be acted upon. According to the plaintiff, no title in respect of the disputed property had passed on to defendant No. 3 on the basis of the sale deed dated November 16, 1973, and there had been no transfer of ownership, but defendant No. 2 initiated a proceeding under Chapter XXA of the Income-tax Act against defendant No. 3. THE plaintiff also appeared in the said proceeding and submitted before defendant No. 2 that the proceeding was not main tainable as there had been no transfer in favour of defendant No. 3. Defendant No. 2, however, rejected the objection of the plaintiff and passed final orders under the said Chapter XXA of the Income-tax Act. THE plaintiff, thereafter, filed the present suit after serving due notice under Section 80, Code of Civil Procedure, praying for a declaration that the disputed property belongs to the plaintiff and is not liable to be proceeded against in acquisition proceedings under Chapter XXA of the Income-tax Act.

(3.) IN the case of Sashibhushan Rath v. State of Orissa [1973] 39 Cut LT 530, a Bench of this court was examining certain provisions of the Orissa Municipal Act, and, in that connection, it also examined the question whether jurisdiction of the civil court is barred or not. It was observed by their Lordships that though the civil court's jurisdiction had not been expressly barred under the Municipal Act, yet the question whether it had been impliedly barred had to be decided by applying the third test laid down by Willes J. in the case of Wolverhampton New Waterworks Co. v. Hawkesford [ 1859] 6 CBNS 336, the third test being ;