BAI BEWA Vs. JAYAKRISHNA RAUTRAY AND ANR.

JUDGEMENT

(1.) THE Plaintiff -Petitioner sued for declaration of title, confirmation, alternately recovery of possession and for permanent injunction against future interference with possession.

(2.) IN the plaint, allegations made that a document had been taken from the Plaintiff under fraudulant miss representation. Even in paragraph 12 of the plaint where cause of action was referred to, it was stated that the cause of action arose in 1974 when the Plaintiff came to know of fraud having been practised by Defendant No. 1. The Plaintiff obtained a decree from the trial Court where it was categorically held that the sale deeds were invalid and the Plaintiff had not lost title to the property on account of the alienation. When the Title Appeal at the instance of the Defendants was pending a notification under Section 4(4) of Orissa Act 21 of 1972 was made and it was represented to the appellate Court that the appeal as also the suit out of which it arose must be taken to have abated. The learned Appellate Judge accepted the plea and set aside the decree of the trial Court and held that the litigation had abated. The Plaintiff assails the appellate order in this revision application.

(3.) AT one point of time even the Plaintiff -Petitioner had joined in the prayer that the appeal should be taken to have abated. In the facts of the case, that, however, seems to be the outcome of a clear misconception of the legal position. I do not think, on account of the fact that the Plaintiff -Petitioner as Respondent had joined in asking for a declaration that the appeal has abated, the present revision petition should be dismissed. On the other hand, interests of justice would be appropriately secured if the appellate order is vacated and the Title Appeal is directed to be re -heard. A decision of the Consolidation Authorities on the validity of the document may not be ultimately binding being an act without jurisdiction. It is, therefore, appropriate that the revision should be allowed and the impugned appellate order should be vacated with a direction that the appeal be re heard and disposed of in accordance with law. The position has been brought about on account of the unfortunate conduct of the Petitioner herself. I would accordingly, while allowing the revision direct that the Petitioner shall pay costs of Rs. 100/ - to the counsel for the opposite party for her own conduct.