RUSAVA HOTA Vs. STATE OF ORISSA

JUDGEMENT

(1.) ONE of the plaintiffs' in Title Suit No. 29 of 1978 in the court of the Subordinate Judge, Sonepur has filed this Revision Petition challenging the order of the learned court below dated 1. 5. 1980 holding the suit to have abated under Section 4(4) of the Orissa Consolidation of Holding and Prevention of Fragmentation of Lands Act 1972 ( hereinafter called the 'Act' ). The plaintiffs filed the suit praying for the following reliefs.

(2.) THE defendants in the written statement, denied the assertions in the plaint relating to claim of right, title and possession of the plaintiffs. They denied to have made any construction on the plaintiffs land but only made improvements on the existing road. While the suit was pending in the learned court below, a petition was filed on behalf of the defendants to the effect that the suit has abated under Section 4 (4) of the Act, since the suit lands are situated in village Temamura in respect of which a notification under Section 3(1) of the Orissa Consolidation of Holdings and prevention of Fragmentation of Lands Act has been published in the extraordinary Orissa Gazette and the consolidation work in the said village is in progress. The plaintiffs did not file any written objection but at the time of hearing on the petition made submissions to the effect that the provisions of Section 4 (4) of the Act are not applicable to the present suit and accordingly, the suit cannot be said to have abated. The learned court below after hearing both the parties allowed the petition filed by the defendants holding that the suit has abated. Hence, this revision petition. Sri N C. Pati the learned counsel appearing for the petitioner contended that since the suit is one for perpetual injunction and mandatory injunction, the learned court below, has erred in holding that the suit abates under Section 4(4) of the Act. He further submitted that since the relief of injunction is not available to be granted by the Authorities under the Act, the right of the plaintiffs to seek such a relief in the Civil Court cannot be said to have been taken away under the provisions of the said statute. He has placed reliance on a Division Bench decision of this Court in the case of Rahas Bewa v. Kandari Charan Suttar and Ors. reported in 54.(1982) C.L.T. 143 and also the Single Judge decision in the case of Chintamani Bhanja v. Gokula Chandra Bhanja and Ors. reported in A.I.R. 1992 Orissa 113 in support of this contention. The contentions raised by the learnsed counsel for the petitioner have considerable force. In the Division Bench decision referred to above, the question whether a suit for permanent injunction can be said to have abated under the provisions of the Act specifically arose for decision. Their Lordships on a consideration of several Single Judge decisions of this Court taking views contrary to each other and referring to some decision of the Supreme Court took the view -