BHARAT JENA Vs. NARAYAN JENA

JUDGEMENT

(1.) THIS second appeal has been admitted on the following substantial question of law:

(2.) THE respondent nos. 1, 3 and 4 and the predecessors in interest of the respondent nos. 2(a) to 2(f) filed O.S. No. 72 of 1977 before the Munsif, Puri, at present, the Civil Judge (Junior Division), Puri against the State of Orissa and the present appellants as defendants, for declaration of the plaintiffs' title over the suit property and confirmation of their possession over the same along with a prayer for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs either by themselves or through their agents. The plaintiffs' case is that the disputed property was recorded in the joint names of one Bancha Jena (father of plaintiff nos. 1 to 3) and the husband of plaintiff no. 4 and one Artra Jena in stitiban status. The kissam of the land was recorded as "Puratan Patita". Subsequently, at the instance of the recorded tenants, it was converted to homestead and a house was constructed thereon. In an amicable partition, Ac. 0.09 decimals of land fell to the share of the plaintiffs from the southern side and Ac. 0.04 decimals of land fell to the share of Arta Jena from northern side. While constructing the house, the plaintiffs amalgamated Ac. 0.04 decimals of land from the eastern side of adjoining Plot No. 311 and made the entire Ac. 0.13 decimals of land into a compact block which was assigned in Plot No. 337 in the settlement of the year, 1977. Bancha Jena possessed the land during his life time and thereafter the plaintiffs are in possession over the same openly and peacefully without interruption from any quarter. The original defendant no. 2, who is the predecessor of defendant nos. 2 to 6, never possessed any part of the said land. The plaintiffs while in possession received a notice in a proceeding under Section 144 Cr.P.C. prohibiting their entry into the suit land. On enquiry, they learnt that the original defendant no. 2 obtained an illegal order from the Addl. Tahasildar, Puri on 12.2.1975 in OLR Case No. 2153 of 1974 in an application under Section 4(2) of the O.L.R. Act without impleading the plaintiffs. The plaintiffs challenged the said order to be without jurisdiction since the matter did not fall within the purview of Clause (h) of Section 4 of the O.L.R. Act. However, despite such order, the original defendant no. 2 could not possess the land but the local police locked the house over the suit land acting under the order under Section 144 Cr.P.C. The original defendant no. 2 threatened to dispossess the plaintiffs on the strength of the said illegal order passed in the O.L.R. case for which the plaintiffs filed the suit.

(3.) WITH regard to the substantial questions of law on which the second appeal has been admitted, this Court finds that the lower appellate court having found that Section 4 of the O.L.R. Act could not have been made applicable to the facts of the present case, section 61 of the O.L.R. Act cannot be considered to be a bar for the civil court to exercise its jurisdiction in such situation. Hence, finding of the lower appellate court cannot be construed to be illegal on the ground that the order passed by the revenue authority having attained the finality cannot be questioned in a civil suit. In addition to the above, it is well settled in law that even if a statute bars the jurisdiction of the civil court, any order passed under the provisions of such statute is always open to be questioned in a civil suit on the ground of none following the procedure laid down in the Act or passing of orders which are not contemplated under the Act. Answering the aforesaid question of law in the manner indicated above, this Court finds no reason to interfere with the impugned judgment and decree passed by the lower appellate court.