PRAMOD KUMAR DASH Vs. PRADYUMNA KUMAR DASH

JUDGEMENT

(1.) The plaintiffs in Title Suit No. 5 of 1982 of the court of Subordinate Judge, Kendrapara are the petitioners in this revision. The order passed by the learned trial court allowing an application u/S. 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (hereinafter referred to as the 'Act') has been impugned in this revision.

(2.) The suit is one for declaration that the registered sale deed dated 27-2-1984 executed in favour of defendants 1 and 2 in respect of the suit land is fraudulent, invalid, without any consideration and inoperative in law and that no title can pass thereunder. The plaintiffs have also prayed for permanent injunction restraining defendants 1 to 4 not to enter upon the suit land and dispossess the plaintiffs therefrom. The case of the plaintiffs in short is as follows : The suit land which comprises of homestead, orchards, tanks and agricultural lands, are ancestral properties of the plaintiffs and defendant No. 5. According to the plaintiff's, they have got 3/4th share and defendant No. 5 has got 1/2th share. They have alleged that the properties have not been partitioned by metes and bounds and they are being jointly enjoyed by all the co-sharers. Defendant No. 3 is the wife of defendant No. 4 and defendants 1 and 2 are their sons. It has been alleged in the plaint that even though there was no legal necessity for sale of the suit lands, defendant No. 5 has executed a registered sale deed on 27-2-1974 in favour of defendants 1 and 2 the legality of which has been challenged on various grounds. The plaintiffs have alleged that the sale deed was fraudulent backed by no consideration and without any legal necessity. According to them, defendants 3 and 4 have somehow managed to obtain the aforesaid sale deed in favour of their sons to defraud the plaintiffs.

(3.) The defendants have filed different sets of written statements in each of which the plaint allegations have been denied. Their defence is substantially the same. They have alleged that the sale deed executed by defendant No. 5 in favour of defendants 1 and 2 was for legal necessity and is valid in law. They have denied the allegation that it was obtained fraudulently. According to them, the purchasers under the said sale deed have got their names recorded in the consolidation proceeding and, therefore, the plaintiffs have no right, title and interest in respect of the same. Several issues have been framed which arise out of the pleadings. One of the issues, namely, issue No. 6 is to the following effect : "Is the suit hit u/s. 4 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act ?" On the date of hearing the present opp. parties 1, 2 and 3 filed an application u/S. 4(4) of the Act and prayed for deciding issue No. 6 at the first instance. This prayer was made as per the provisions contained in Order 14, Rule 2, C.P.C. The plaintiffs filed their objection to the said application. According to the plaintiffs, the said application was misconceived and was intended to delay disposal of the suit. The learned trial court by the impugned order has allowed the said application holding that the suit has abated u/S. 4(4) of the Act.