HARISH CHANDRA HABUDA Vs. KANAKAMANI MOHAPATRA

JUDGEMENT

(1.) Defendant No. 1 is the appellant in this appeal.

(2.) IN view of the final order which I propose to make, minimal facts necessary for it need to be capsulised. Respondent No. 1 fried the suit for declaration of her title and ownership over the suit lands and for recovery of its possession from the appellant. Appellant and respondent No. 4 (defendant No. 4) only contested the suit by filing written statements. Defendant No. 5 being the husband of respondent No. 1 filed written statement supporting his wife's case. Other defendants did not contest the suit. Although 9 (nine) issues were framed, the trial Court took up issue No. 3 first for consideration which relates to the Civil Court's jurisdiction to try the suit. The said issue reads as follows : 'Whether defendant No. 5 is a ceiling surplus -holder and whether the sale deed made by defendant No. 5 in favour of the plaintiff is nominal, collusive and fraudulent in order to defraud the provisions of the O.L.R. Act and whether the suit is barred under the O.L.R. Act ?' The aforesaid preliminary issue had to be taken up because the appellant urged that the suit lands form the subject -matter of proceeding under Chapter IV of the Orissa Land Reforms Act (hereinafter referred to as 'the Act') with respect to which, defendant No. 5 was the ceiling surplus -holder and the O.L.R. Court held that the suit lands are the surplus lands at the hands of defendant No. 5 notwithstanding transfer of the same in favour of his wife. The trial Court upheld the preliminary objection and held that it is the authorities under the Act who are exclusively competent to decide if the suitlands are to be excluded from operation of the Act or to vest with the Government. It accordingly dismissed the suit holding that the Civil Court has no jurisdiction to decide such dispute. Against the said judgment and decree of the trial Court, respondent No. 1 (plaintiff) appealed to the Court of the District Judge. The learned District Judge while setting aside the judgment of the trial Court modified it to the extent that the proceedings of the suit shall remain stayed till disposal of the ceiling proceedings under the Act.

(3.) THERE is no dispute at the Bar that the impugned decree passed by the learned District Judge is liable to be set aside as it is against a dead person. Respondent No. 1 who was the appellant in the Court of the District Judge has, however, filed applications in this Court on 5 -5 -1994 on which decision is now called for. Those applications are : (i) Misc. Case No. 249 of 1994 under Order 22, Rule 4 read with Section 151, CPC praying for substitution of the legal representatives of the deceased defendant No. 3 and (ii) Misc. Case Nos. 250 and 251 of 1994 respectively for condonation of delay and for setting aside abatement. Another application has been filed on 2 -8 -1994 vide Misc. Case No. 337 of 1994 praying that the applications for substitution, condonation of delay and setting aside abatement may be sent to the lower appellate Court for the disposal as per the provision contained in Order 22, Rule 4 (4),CPC. Another application has also been filed on 2 -8 -1994 vide Misc. Case No. 338 of 1994 under Order 22, Rule 4 (4), GPC praying to exempt the respondent No. 1 from the necessity of substituting the legal representatives of the deceased defendant No. 3. - - - -