RATNAMANJARI SWAIN Vs. RITANJALI PATTANAIK & ANR.

JUDGEMENT

(1.) THIS Writ Petition is directed against the order dated 31.03.2010 passed by learned Civil Judge (Sr. Division), Kendrapara in Civil Suit No. 75 of 2005 allowing an application filed by defendant No. 1 under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 ('Consolidation Act' for short). Facts relevant for disposal of this writ petition are as follows : -

(2.) PLAINTIFF 's case, in short, is that the plaintiff and defendant nos.2 to 6 are successors -in -interest of Late Ram Swain and Laxmidhar Swain. The suit land in the Sabik Khata was recorded jointly in the names of the cosharers. In the Major Settlement, Sabik Plot No. 1076 was recorded as Hal Plot No. 1087/1667 under Hal Khata No. 390 in Mouza Talagaon jointly in the names of the plaintiff and defendant nos.2 to 6. On initiation of the Consolidation Proceeding, the suit plot has again been recorded jointly in the names of the plaintiff and defendant nos.2 to 6. Plaintiff and defendant nos.2 to 6 being in joint possession of the suit land, are enjoying the same by exercising their joint right and title. Defendant nos.2 and 3, without any consultation with and consent of the plaintiff and defendant nos.4 to 6, executed Sale Deed No. 150, dated 02.02.2005 in favour of defendant No. 1 (opp. party No. 1 in this writ petition) in excess to their share, though they had no locus -standi to execute the impugned sale deed. Defendant No. 1 (present opp. Party No. 1) being a stranger to the family, may encroach upon privacy of the joint enjoyment of the suit land by the plaintiff and defendant nos.4 to 6. Therefore the suit for the reliefs, as delineated supra. Defendant No. 1 filed written statement denying the plaint averments and took the plea of previous partition among the parties though the record is joint. In course of hearing of the suit, defendant No. 1 filed a petition under Section 4 (4) of the Consolidation Act. The plaintiff (present petitioner) resisted the petition on the following grounds : -

(3.) DEFENDANT No. 1 (present opp. Party No. 1) on the other hand stressed on the following points :