UMA ROUT Vs. AJAYA BHATTA AND OTHERS

JUDGEMENT

(1.) This petition challenges the order dated 16.2.2018 passed by the learned District Judge, Cuttack in C.R. No.08 of 2017. By the said order, learned District Judge dismissed the revision and confirmed the order dated 22.06.2017 passed by learned Civil Judge (Sr. Divn.), 1st Court, Cuttack in C.S. No.888 of 2016, whereby and whereunder learned trial court has rejected the application of the defendant no.1 to reject the plaint under Order 7 Rule 11 CPC.

(2.) Plaintiff-Opposite party no.1 instituted the suit for partition, repurchase of schedule 'B' property and permanent injunction. Briefly stated, case of the plaintiff is that the suit property is the ancestral residential house, homestead and cultivable land of the plaintiff. The dispute arose first time on 15.8.2016 when he came to know that Ratha Bhatta, predecessorin-interest of defendant nos.5 and 6, had executed a registered sale deed on 01.01.1974 in favour of Labanya, husband of defendant no.1, in respect of schedule 'B' property. Ratha Bhatta had no exclusive right to sell the same in favour of a stranger. No consideration was passed. Notwithstanding the transfer by Ratha Bhatta, the suit property is the joint family property of the parties. Defendant no.1 attempted to forcibly occupy schedule 'B' property on 15.8.2016. The sale is in contravention of Sec.44 of the Transfer of Property Act, Sec.22 of the Hindu Succession Act and Secs.34 and 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act ("OCH & PFL Act"). The sale deed is void abinitio. He demanded for exercise of his right of repurchase. But then, the defendant no.1 did not agree. With this factual scenario, he instituted the suit. The suit is valued at Rs.5,00,100/- for the purpose of court fees and jurisdiction, out of which, Rs.5,00,000/- is the value of partition and Rs.100/- is the relief of injunction.

(3.) Defendant no.1 entered appearance and filed a petition under Order 7 Rule 11 (a), (b) and (d) CPC to reject the plaint stating inter alia that plaintiff has no cause of action to institute the suit against her. The consolidation authorities have recorded schedule 'B' property in the name of her husband in the year 1981. After death of her husband, her name has been mutated in the ROR of the suit property. The suit is barred under Sec.51 of the OCH & PFL Act. The plaintiff in the guise of seeking repurchase of schedule 'B' land challenges the registered sale deed dated 01.01.1974. The suit is also barred by limitation. Plaintiff was 4 years old in 1974. At that time, his father and other co-sharers were alive. Thus, the question of obtaining the consent by her vendor Ratha Bhatta before execution of the sale deed did not arise. Plaintiff has not valued the relief of repurchase.