BUDHI DEI Vs. KALU MUDULI

JUDGEMENT

(1.) THE present petitioner who is the plaintiff filed a Title Suit bearing No. 152 of 1986 in the Court of the Munsif, Jagatsinghpur for permanent injunction restraining the defendants -' opp. parties from making any construction over the suit land measuring Ac. 0. 53 decimals as detailed in the plaint and from changing the nature and character of the suit Sand and also from encroaching and/or' removing any. portion of the common passage as shown in biack colour in the sketch map appended to the plaint, and also from filling the tank as shown in yellow colour in the said map and from interfering with the peaceful possession of the petitioner in respect of the suit land which is in his separate possession. The suit was filed on 14 -7 -1986. The defendants are the members of the joint family, some of them being the co -sharers. The consolidation operation started in that area on 2 -5 -1985 prior to . the filing of the suit. At the time of filing of the suit the land was under consolidation operation for which the present petitioner did not seek to effect partition in the same suit and preferred to effect partition in the consolidation proceeding itself. Before the consolidation authorities, the suit properties were partitioned and the petitioner was shown to have 8 annas interest in the suit property. Since the interest of the petitioner was not specified in the joint suit house, he preferred an appeal to the Deputy Director of Consolidation wherein he wanted specific portion of the suit house to be allotted to him in the partition. That having been dismissed, the petitioner preferred a revision before the Consolidation Commissioner which was numbered as Consolidation Revision No. 1122 of 1987. in the meanwhile the Full Bench of this Court considered about the homestead land and in the case of Sundarmani Bewa and Anr. v. Dasarath Parida (dead) and after him Labanya Del and others) reported in 65(1988) CLT 449 (F B.) held that the homestead lands are non - consoiidable. In view of this finding of this Court in Full Bench, the Commissioner of Consolidation dismissed the consolidation revision filed by the petitioner as not maintainable on the ground that since the land is not consolidable, he did not have any Jurisdiction to pass orders in this case. Subsequent to the decision of this Court in the Full Bench as referred to above, the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act was amended by the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land (Amendment) Act, 1989 which came into force on 16 -3 -1989. The purport of the amendment made in the year 1989 was to declare, notwithstanding the decision of the Court thereof, that the homestead lands are treated to be consolidable.

(2.) IN the meanwhile the petitioner had filed an application for amendment of the suit (T. S. 152 of 1986) and desired to treat the suit as a suit for partition apart from the suit for permanent injunction. That amendment having been rejected, the petitioner preferred a civil revision in this Court which was numbered as Civil Revision. 922 of 1989. By the order dated 7 -8 -1989, the said revision was allowed and it was not brought to the notice of the Court at that time that the Orissa Consolidation (Amendment) Act came into force with effect from 16 -3 -1989 and the Court having hot taken into consideration this amended provision of the Orissa Con consolidation Act, allowed the revision directing the plaintiff -petitioner to seek amendment in the suit for treating the suit as a suit for partition on payment of costs Of Rs. 100/ - to Mr. Jena, the advocate for the other side.

(3.) THE learned counsel for the petitioner challenges this order of the learned Munsif, Jagatsinghpur on the sole ground that in view of the amended provision of the Consolidation Act brought in 1989, the suit relating to partition of the property may not be maintainable, but the plaintiff could not be unsuited in respect of his payer for permanent injunction. There Is sufficient force in the contention of the learned counsel appearing for the petitioner. In the event he succeeds in any of the forums provided under the Consolidation Act relating to his right, title and interest In respect of the suit property, he is to bring a,' fresh suit once again for permanent injunction against opp. parties. That apart, under the scheme of .the Consolidation Act, the plaintiff cannot obtain 'an order for permanent injunction which can only be received from the Civil Court in a suit for permanent injunction, in view of this, justice will be done to both the parties if the suit confined to the prayer of permanent injunction will be stayed while the parties -decide their matter of partition before 'the consolidation authorities, When the right, title and interest of 'the petitioner is finally determined on partition, the suit for permanent injunction will be ultimately disposed of taking into consideration the finding of the consolidation authorities regarding the right, title and interest of the plaintiff in respect of the suit property.