UAMASH CHANDRA Vs. DINABANDHU

JUDGEMENT

(1.) Defendants 2 to 2(h) in Title Suit No. 69 of 1972 pending in final decree proceeding before the Subordinate Judge, Bargarh are the petitioners in this revision petition, challenging the order dt. 11-8-1980 rejecting their prayer to drop the final decree proceeding.

(2.) The opposite party No. 1 filed the above mentioned suit for partition of the suit properties. The said suit by judgment dt. 4-1-1977 was decreed preliminarily, ex parte against defendants 1, 2 and 4 and on contest against defendant No. 3. Under the preliminary decree, the plaintiff was to get 1/5th share and defendants 1,2,3 and 4 were to get 1/5th each in the suit schedule properties. The total extent of land involved in the suit is above 27.50 acres. Admittedly no appeal was carried against the preliminary decree. The parties having failed to demarcate the lands by mutual arrangement the opposite party No. 1 (plaintiff) filed a petition for making the decree final and to appoint a Commissioner for effecting partition by metes and bounds in accordance with the directions contained in the preliminary decree. In course of the said proceeding while steps were being taken by the Civil Court Commissioner to demarcate the properties and objection was filed on behalf of the petitioners that the final decree proceeding cannot proceed in view of the provisions of Sec.40 of the Orissa Land Reforms Act (hereinafter referred to as 'the Land Reforms Act') and Sec.4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as 'the Consolidation Act'). The said objection was rejected by the court below by the impugned order holding that the same was not maintainable at such a belated stage.

(3.) At the outset Mr. C. A. Rao, the learned counsel for the petitioner concedes that there is no merit in the objection raised by the petitioner that the final decree proceeding abates under Sec.4(4) of the Consolidation Act, in view of the decision of the Full Bench of this Court in the case of Srinibas Jena v. Janardan Jena reported in (1980) 50 Cut LT. 337. Thus there remains only the question whether Sec.40 of the Land Reforms Act affects the maintainability of the final decree proceeding. Reliance has been placed for this purpose on Sec.40(3) of the Act which reads as follows : -