HARI PRIYA SAHOO Vs. JAGAR SAHOO

JUDGEMENT

(1.) The petitioner, who is the plaintiff in C.S. No. 118 of 2007 filed in the court of the learned Civil Judge (Junior Division), Kendrapara has called in question the order dated 16.8.2010 passed in the said suit by which the learned trial court has held that the suit abates under section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, 'the Act').

(2.) The suit was originally filed by the petitioner for a decree for permanent injunction restraining the defendants - opp. parties from interfering with her peaceful possession of her purchased plot No. 4097 constituting an area of Ac. 0. 17 decimals. Subsequently, the plaint was amended and a prayer for declaration of right, title, interest and possession over the boundary wall existing on a portion of the suit land was introduced. Admittedly, the area in which the suit schedule property is situated is under consolidation operation. The opp. parties filed an application under section 4 (4) of the Act, inter alia, making a prayer that necessary order regarding abatement of the suit under the said provision of the Act may be passed and the suit be abated. An objection was filed to the said petition by the petitioner - plaintiff not disputing that the area is under consolidation. The learned trial court after hearing the parties passed the impugned order of abatement of the suit holding that the plaintiff having prayed for declaration of right, title, interest and possession over the boundary wall, which situates on a portion of the suit land, it is necessary to decide the inter se right of the parties over the said wall for passing a declaratory right and as the consolidation operation is continuing, the civil court lacks jurisdiction to entertain the matter.

(3.) Mr. Das, learned counsel for the petitioner vehemently urged that the suit is basically for demarcation of the boundary between the purchased land of the plaintiff and the defendants. The purchase being disputed, the suit cannot be nomenclatured as a suit involving any dispute with regard to title of the parties over the property in question.