SAKHI SAHU Vs. RAMBHA BEWA

JUDGEMENT

(1.) PLAINTIFFS are in appeal against the affirming judgment and decree of the learned District Judge, Cuttack, in a suit for declaration of right, title and interest, permanent injunction, and for eviction of the defendants from the 'B' Schedule property and also for grant of damages. After stating the pleadings and the evidence, the Hon'ble Court found : 6. Both the Courts below have concurrently found that the plaintiffs' suit is devoid of merit as Sanei did not possess the land as a licensee, but as a lessee; the plaintiffs' suit is vague and there is actually no cause of action for filing of such a suit. The Courts below have also recorded a finding that the defendants are in possession of the suit land since 1930 and they have the right over the entire C.S. Plot No. 148. 7. Before I proceed to address myself with regard to the merits of the second appeal, it is appropriate to deal with the contention of Shri B. Routray,the learned Counsel for the plaintiffs -appellant, who has contended that the suit should abate in view of the notification under Section 3 of the Orissa Consolidation of Holdings and Prevention of Fragmantation of Land Act, 1972 (hereinafter referred to as 'the Act'). To substantiate this aspect, he has filed an application under Order 41, Rule 27 read with Section 151 of the Code of Civil Procedure. These documents are : the notification dated 15 -7 -1978, order passed in Remand Appeal Case No. 5/86 by the Deputy Director, Consotitution Range No. 4, Cuttack, copy of the the report submitted by the Amin along with the petition filed by the appellants and the copy of the judgment passed by the Consolidation Officer in Remand Appeal Case No.3/88. The appellate authority under the Act had taken into consideration the decision of this Court in relation to the home -stead Iand and has observed that the consolidation authorities had no jurisdiction to decide in respect of the homestead land. So observing, he has drooped the case. The documents have been filed only to indicate th3t ths suit would abate because of the notification and the various orders passed by the consolidation authorities. The effort of the learned Counsel for the respondents is that the suit would not abate and for that reason he has also filed the judgment of the Deouty Director. Though the petitions by both sides have been styled to be under Order 41, Rule 27, they, in effect, have nothing to do with the merits of the Second Appeal and at all essential for the just and clear decision of appeal. In fact, they are only relevant for the purpose of deciding the controversy relating to abatement of the suit. I do not admit them as additional evidence for the purpose of decision in appeal, but I take them into consideration as documents brought on record for deciding whether the suit would abate or not. 8. Sri B. Routray, the learned counsel for the appellants has strenuously urged before this Court that the suit would abate. Shri B.C. Swain, the learned counsel for the respondents has emphatically submitted that the question of abatement of the suit does not arise in the present case. He has also brought to my notice that doting the pendency of the suit before the trial Court, the' -point was raised with regard to the abatement of the suit, but the same was rejected and parties thereafter have participated in the trial. 9. The main thrust of submission of Shri Routray is that the suit was filed in the year 1982 whereas the Notification under Sub -Section (1) of Section 3 of the Act had come into existence on 15 -7 -1978 and; therefore, the suit could not have been entertained by the Civil Court. To substantiate this submission of his, he has referred to Section 51 of the Act. He has also contended that recently the plaintiffs have filed a revision before the Consolidation Authorities challenging the order passed by the Deputy Director dropping the proceeding and therefore, the suit has to abate. He has also convassed that the reliefs sought for in th8 suit should be read harmoniously with the averments in the plaint and the contents of the pleadings have to prevail and not the form. To buttress his submission, he has placed reliance on the decisions rendered in the cases of Sridhar Mohanty v. Kamal Kumar Agarwala, reported in 57(1984) CLT 417, and Duruju Malik alias Duryodhan Swain v. Krupasindhu Swain, reported in 58 (1984) CLT 359 (FB). 10. Sri Swain, in his turn has submitted that the suit of present nature would not abate as the prayers are different. He has also canvassed that as the decree has been passed. rejecting the petition for abatement, it is a valid decree and the question of abatement at this juncture cannot be raised. He has placed reliance on the decisions rendered in cases of Duruju Malik (supra), and Sadhu Charan Des v. Sri Raghava Malik and Ors., reported in 64 (1987) CLT 414, 55(1983) CLT SN 164, and Prabhakar Dixit and Ors. v. Bhagaban Prasad Das, 60(1985) CLT short -note 67. 11. To appreciate the rival contentions in this regard, it is essential to scrutinise the plaint in detail and scan it in proper perspective. I find the plaintiffs after making certain averments in support of their right, title and interest in paragraphs 16 and 17 of the plaint have pleaded as follows:

(2.) IN the written statement, these aspects have been disputed. True it is, the plaint has to be read as a whole,' but if the reliefs prayed for are in consonance with the averments of the plaint and the same cannot be granted by the authorities under the Act, the suit cannot be allowed to abate. . Ordinarily, the Civil Court does not -lose jurisdiction to try a suit unless it is shown from the special statute that the forums prescribed hereunder have the power to grant reliefs sought for in the suit. In the instant case, the prayers are manifold and there is no reason to doubt the genuineness of the prayers. The prayers include permanent injunction. eviction of the defendants, recovery of possession and grant of damages. Definitely these prayers cannot be adjudicated by the Consolidation Authorities. May be trie plaintiffs in the present case. for some reason or other, pray for abatement of the suit but their desire cannot over -ride the mandate of law. Considering the plaint as a whole, 1 am of the firm view that the present suit would not abate. 13. I may also observe that there has been no adjudication by the Consolidation Authorities and rightly so. By the time the matter was before them, they had no jurisdiction to do so as the homestead land was not covered under the Consolidation Scheme. They rightly refused to exercise jurisdiction and the Civil Court rightly entertained the same. This Court in the case of Palau Bag and Ors. v. Adhikari Patra and Anr., reported in 77(1994) CLT 533, has held as follows :

(3.) IN the result, the Second Appeal is dismissed. However, the parties shall bear their respective costs for this appeal.