SUKADEV JENA Vs. PADMALOCHAN DHAL

JUDGEMENT

(1.) BY the impugned order, the learned Subordinate Judge, Bhadrak, directed abatement of O.S. No. 63 of 1981 under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 ('Act') for short. The Plaintiff (Petitioner) has assailed that order in this Civil Revision.

(2.) IN order to appreciate the contentions raised by the parties, it is necessary to state the facts averred in the plaint in detail. Defendant -6 (opp. party 6) was the original recorded tenant in respect of C.S. Plot No. 1375 with an area of Ac.1.31 decimals appertaining to Khata No. 680 of mouza Banth, which corresponds to Hal Plot No. 1437. By virtue of a registered sale -deed dated 7 -5 -19691 Defendant 6 sold Ac. 0. 651/2 decimals out of the aforesaid plot from the northern side for consideration in favour of the Plaintiff. After purchase, the Plaintiff got his name mutated, paid rents and remained in physical possession thereof. By virtue of another registered sale -deed dated 17 -3 -1972, Defendant 6 sold Ac. 0. 25 decimals out of the balance Ac. 0. 651/2 decimals from the southern portion in favour of Defendants 4 and 5 (opposite parties 4 and 5) for consideration and since then the purchasers are in actual physical possession of the land. After the sales, Defendant 6 was in possession of only Ac. 0. 30 decimals of land. On 29 -9 -1972, by a registered sale deed, Defendant 6 sold Ac. 0. 16 decimals out of the balance land in his possession in favour of Defendants 1 and 2 (opposite parties 1 and 2). After the sale, the purchasers are in possession thereof. Having transferred specific areas of lands Gut of C.S. Plot No. 1375, Defendant 6 remained in possession of the balance Ac. 0. 14 decimals. Peculiarly enough, by fraudulent means, Defendant 1 obtained a sham and nominal sale deed from Defendant 6 on 4 -5 -1973 in respect of Ac. 0. 95 decimals out of the said plot. The sale deed was executed in favour of Defendant -3 (opposite party 3), wife of Defendant 1. Having divested himself of title and possession by alienating Ac. 1. 061/2 decimals and being in possession of only Ac. 0. 14 decimals out of the suit plot No. 1375, Defendant 6 had neither the title nor possession to alienate Ac. 0. 95 decimals therefrom in favour at Defendant 3 on 4 -5 -1973. On the basis of the sham and nominal sale deed, Defendant 1 created disturbance, trespassed into the suit land in Plaintiff's possession and reaped away standing paddy crops raised by the Plaintiff. Finding that his title and possession in respect of the suit land was clouded, the Plaintiff instituted the suit for declaration of his title in respect of the suit land, for further declaration that the sale deed dated 4 -5 -1973 is invalid and ineffective, for confirmation of possession for partition, delivery of possession through court and for damages.

(3.) THE learned Subordinate Judge, after hearing both parties, held that the main relief claimed by the Plaintiff is for declaration of his title, confirmation of possession and partition. As the Consolidation Officer has jurisdiction to grant the reliefs, the jurisdiction of the civil court is barred and so the suit must abate. Accordingly, he passed the impugned order of abatement.