BRUNDABAN PATRA Vs. PRIYANATH ACHARYA

JUDGEMENT

(1.) THIS revisional application is directed against an order refusing the defendant's prayer for abatement of the suit under section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972.

(2.) THE opposite party brought O.S. No. 340/59 of 1980/83(I) in the Court of the Munsif, Puri for recovery of passession of the suit lands alleging that though he had executed a usufructuary mortgage in favour of the petitioner, yet in order to avoid the provisions of the Orissa Money Lenders Act the document was scribed in the garb of a 'Kant Kabala' and that although the mortgage stood statutorily discharged the defendant did not deliver possession of the mortgaged lands.

(3.) DURING the pendency of the suit the village where the lands are situated came under the consolidation operation on the publication of a notification under section 3 of the Act. Thereafter the petitioner filed an application on 31 -1 -83 for an order of abatement of the suit under the provisions of section 4(4) of the Act. The learned Munsif by his order dated 21 -6 -83 dismissed the application observing that the suit was not for declaration of any right or interest in land and that the main issue in the suit was whether the document referred to in the plaint was a mortgage deed or a sale deed and if it is a mortgage deed, whether the mortgage had been discharged. Aggrieved by this order, the defendant has come up in revision. It is urged on behalf of the petitioner thateven assuming that the document in suit is a deed of mortgage haying been statutorily discharged, the only remedy of the opposite party was to ask for recovery of possession of the mortgaged property and the opposite party having sought for that relief, the suit is liable to be abated under the provisions of section 4(4) of the, Act.