TRILOCHAN NAIK Vs. SUKURU SETHI

JUDGEMENT

(1.) The short question that arises in this revision from an order passed by the learned Munsif, Sonepur, holding that the suit was not maintainable having regard to the provision contained in Section 51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, is if having regard to the nature of the suit, the relief sought, Section 51 of the Consolidation Act would operate as a bar to the maintainability of the suit.

(2.) ONE Sankirtan, the common ancestor, died leaving behind three sons, Judhistira, Nila and Gokul, was died in a state of jointness. The plaintiffs and defendants 1 and 6 are the descendants. For convenience, as the parties did not pull on well, the properties were enjoyed in separate parcels and separate notes of possession were entered in the record -of -rights prepared in the 4th settlement. Some lands were also recorded as joint Khata No. 51 of the 4th settlement was acquired by Gokula out of the joint family nucleus. He was afflicted by leprosy and left the village relinquishing his right and title orally in favour of the plaintiffs and defendant No. 6. During the consolidation operation, defendant No. 1 claimed the disputed property on the strength of a deed of gift alleged to have been executed by Gokula on 24 -4 -1970 and his plea was accepted. The plaintiffs instituted the suit for a declaration that the schedule property was the joint property of the plaintiffs and defendant No. 6 and holding the alleged gift to be a nullity and to correct the record -of -rights by deleting the names of defendants 1 to 5 and substituting the names of the plaintiffs and defendant No. 6 instead and for permanent injunction.

(3.) HAVING regard to the aforesaid pleadings, the defendants filed an application for hearing of the question of maintainability as a preliminary issue under Order 14, Rule 2 of the Code of Civil Procedure and the impugned order holding that the suit was not maintainable was passed by the learned Munsif. He held that having regard to the pleadings and the relief sought, Section 51 operated as a bar.