BISWANATH JENA Vs. RAMESH CHANDRA JENA

JUDGEMENT

(1.) Three inter -related questions arise for determination in this revision application, i. e. (a) whether a suit for partition of homestead land abates in terms of Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act. 1972 (in short, the 'Consolidation Act') (b) if the suit abates, have the consolidation authorities jurisdiction to grant relief Under Section 4 of the Partition Act while effecting partition Under Section 7 of the Consolidation Act, and (c) whether relief of permanent injunction, if sought for in a suit for partition, can be granted by the consolidation authorities.

(2.) THE matter was placed before us on being referred by a learned Single Judge considering importance of questions involved. Delineation of factual position is unnecessary, because resolution of the controversy revolves round adjudication of various provisions of the Consolidation Act and the Partition Act. At this juncture, it is relevant to refer to relevant provisions of Section 7 of the Consolidation Act, and Section 4 of the Partition Act which read as follows : Section 7 of the Consolidation Act : '7. Powers relating to portion of joint holding, amalgamation of holdings and to determine rent and cess and effect change in the village boundaries. (1) After the publication of the notification issued under Sub -sec,(1)'of Section 3. no partition of a holding lying in the consolidation area Under Section 19 of the Orissa Land Reforms Act, 1960 (Orissa Act 16 of 1960) shall be effected by the Revenue Officer till the publication of the notification Under Section 41 or Sub -sec (1) of Section 5, as the case may be, and the Assistant Consolidation Officer and the Consolidation Officer shall, in addition to the powers vested in them under this Act, have powers to effect partition of joint holdings on application of any party interested notwithstanding anything to the contrary contained in any other law for the time being in force ; Provided that a partition on the basis of the specific parcels of land may, on an application made in that behalf, be effected - (a) where all the concerned land -owners agree, by the Assistant Consolidation Officer or the Consolidation Officer; and (b) where all the concerned land -owners do not agree, by Consolidation Officer; Provided further that except where all the concerned land -owners agree, a partition on the basis of specific parcels of land shall not be effected without giving the parties concerned a reasonable opportunity of being heard.' Section 4 of the Partition Act : '4. Partition suit by a transferee of share in dwelling -house. (1) Where a share of a dwelling -house belonging to an undivided family has been transferred to a person who is not a member of such family, and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit, and direct the sale of such share to such shareholder and may give all necessary and proper directions in that behalf. (2) If in any case described in Sub -section (1) to or more members of the family, being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed in Sub -section (2) of the last foregoing section.'

(3.) SECTION 4. of the Partition Act provides a choice to a member or members of an undivided family to purchase share in a dwelling - house, which has been transferred to a stranger to the family. Such an option is given when the stranger -transferee sues for partition. A suit for partition cannot be continued in a Civil Court and only the consolidation authorities are to decide the dispute relating to partition. [See Siba Prasad Dashson v. Kali Charon Dash, 57(1984) CLT 560]. Under Section 7 of the Consolidation Act, the consolidation authorities have, in addition to the powers vested in them under the said Act, powers to effect partition of joint holdings on application of any party interested, notwithstanding anything to the contrary contained in any other law for the time being in force.