SOMANATH BHATARIA Vs. PUNANANDA BHATARIA

JUDGEMENT

(1.) THIS revision is directed against an order dated 4 -5 -1W passed by the learned Subordinate Judge, Jagatsinghpur in title Suit No. 111 of 1984 holding, that the suit has abated Under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1872 (hereinafter referred to as the 'Act').

(2.) THE plaintiff in the aforesaid suit is the petitioner in this revision. The suit is one for partition wherein the plaintiff has claimed 1/6th share in A Schedule, 1/4th share in '8' Schedule and 1/2 share in C Schedule properties. The plaintiff is the son of opp. party No .According to him, his Mther (O.P. No. 7) was adopted by opp. party No. 1 and, therefore, he has interest in the joint family properties. He also relied upon a document acknowledging adoption of present opp. party No 7. The defendants in the. suit filed different sets of written statements and they have disputed the factum of adoption as alleged by the plaintiff. According to there in plaintiff has no locus stand to file the suit as he is not the grand -son of opp. party No. 1. An application was filed in the trill Court to the effect that the suit involves the question of determination of status and, therefore, the Civil Court has no jurisdiction to decide the suit as the area comprising the suit properties is under consolidation operation. They prayed for abatement of the suit Under Section 4(4) of the Act. The learned trial Court after hearing the parties came to a conclusion that the essential relief sought for in the suit being for partition, it would abate as the consolidation authorities have been empowered to effect partition.

(3.) MR . Patnaik, learned counsel for the petitioner, has invited my attention to the issues settled in the suit some of which relate to the validity of the adoption and the validity of the document which the plaintiff relies upon namely, the deed acknowledging the adoption. His argument is that the consolidation authorities will have no jurisdiction to decide the validity of the deed acknowledging adoption as the genuineness and validity of the same has been seriously challenged by the defendant, ft is for that reason the suit should continue in the Civil Court as the Civil Court will have jurisdiction to entertain all questions as to the genuineness, validity or enforceability of the said document. This argument is presumably based on the decision of the Supreme Court reported in A. I. R. 1973 S. C. 2451 (Gorakh Math Dube v. Hari Narain Singh and others) where their Lordships have held that the consolidation authorities will have no jurisdiction to declare a document void in a void able transaction. I heir Lordships in the said decision have said that the consolidation authorities can ignore a void document which does not require to be set aside by a Court The aforesaid theory is inapplicable to the facts of the present case. Neither party to the suit has prayed for setting aside the deed of acknowledgement of adoption. The raw as it stands does not require a document to prove or disprove an adoption. Validity of adoption depends upon proof of various facts. Hundreds of documents would not substitute the proof of the formalities by which an adoption is established. Therefore, the question of setting aside the deed of acknowledgement of adoption does not arise in this case.