RADHASYAM JENA Vs. JAGANNATH JENA

JUDGEMENT

(1.) THIS revision is directed against the order of the Munsif, Kendra -para, dated 23rd July, 1981, in Misc. Case No. 408 of 1979 whereunder the learned Munsif has held that the pending proceeding before him does not abate under section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the 'Act').

(2.) THE miscellaneous case arose out of an application under section 22(2) of the Hindu Succession Act. The prayer of the petitioner in the said application was to direct the opposite party no. 1 to sell the suit land to him for a consideration to be determined by the court. The suit land originally belonged to one Netrananda who died in 1967 leaving behind his widow Madhavi and sons Jagannath, Hadibandhu and Gajendra. Madhavi died in the year 1971. Hadibandhu and Gajendra executed a sale deed conveying their share in the property to a stranger Radhesyam without offering the same to Jagannath who had a preferential right of purchase under section 22 of the Hindu Succession Act. In the premises Jagannath had filed the application with the prayer that Radhesyam should be directed to sell the suit land to him for a consideration to be determined by the court with the ancillary relief of an injunction against Radhesyam not to construct any house or not to change the nature of the land in question. The opposite parties in their objection averred that there was an amicable partition amongst the members of Netra -nanda's family in the year 1964 and the suit land fell to the share of Hadibandhu and Gajendra who were possessing the same till the date of execution of the sale deed in favour of Radhesyam. It was also further averred that Hadibandhu and Gajendra offered the land to Jagannath but since Jagannath did not agree to purchase the same, the land was sold to Radhesyam and, therefore, the application under section 22 of the Hindu Succession Act would not be maintainable. The opposite parties filed an application before the learned Munsif to the effect that the land in question has been brought under consolidation operation by issue of a notification under section 3 of the Act and, therefore, the proceeding abates under sub section (4) of section 4 of the Act. After hearing the parties, the learned Munsif by the impugned order has held that the proceeding does not abate. The opposite parries 1 to 3 before the learned Munsif have preferred this revision against the aforesaid order.