R.N.Misra, J. - (1.)PLAINTIFF is in appeal against the affirming judgment and decree of the learned Additional Subordinate Judge of Cuttack in a suit for partition of A and B schedules property and allotment of a share to the plaintiff out of it. The trial Court decreed the suit in part, but refused to grant relief in respect of 20 decimals of land appertaining to plot No. 644 title to which plaintiff claimed under a deed Ext. 9 dated 23-5-1963. The lower appellate Court has upheld the decree.
(2.)AT the hearing of the appeal, Counsel for the respondent claims that there has already been a notification under Section 3 (1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act of 1972 (Orissa Act 21 of 1972) (hereinafter to be referred to as the Act) in regard to properties located in village Manatir and, therefore, the appeal has to abate. There is no dispute that under Notification S. R. O. No. 749/73 dated 6th of August, 1973 issued by the Revenue Department of the State Government and published in the Gazette of August 10, 1973, the Notification in question has been made and at page 9 thereof under Item No. 91 village Manatir has been mentioned. Sections 3, 4 and 7 of the Act provide:
"3. (1) The State Government may, where they are of opinion that any area may be brought under consolidation operations, issue a notification to that effect whereupon it shall become lawful for the Consolidation Officer or his subordinate or other officer acting under his authority-- (a) xx xx xx (b) xx xx xx (c) xx xx xx (2) xx xx xx (3) xx xx xx 4. Upon the publication of the notification issued under Sub-section (1) of Section 3 in the Official Gazette, the consequences as hereinafter set forth, shall, subject to the provisions of this Act, ensue in the consolidation area fill the publication of notification under Sec. 41 or Sub-section (1) of Section 5, as the case may be- (1) xx xx xx (2) xx xx xx (3) xx xx xx (4) every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceedings could be or ought to be started under this Act; which is pending before any Civil Court, whether of the first instance or appeal, reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending, stand abated: xx xx xx xx xx xx xx xx xx Provided also that such abatement shall be without prejudice to the right of the person affected to agitate the right of interest which formed the subject-matter of the said suit or proceeding, before the proper consolidation authority in accordance with the provisions of this Act or the rules made thereunder. 7. (1) Upon the publication of the notification issued under Subsection (1) of Section 3, no partition of a holding lying in the consolidation area under Section 19 of the Orissa Land Reforms Act, 16 of 1960, shall be effected by the Revenue Officer till the publication of the notification under Section 41 or Sub-section (1) of Section 5, as the case may be, and the Assistant Consolidation Officer and the Consolidation Officer shall, in addition to the powers vested in them under this Act, have powers to effect partition of joint holdings on application of any party interested notwithstanding anything to the contrary contained in any other law for the time being in force: xx xx xx xx xx xx"
It is claimed that the process of partition is the antithesis of consolidation and in the teeth of the provisions contained in the statute to which reference has been made above and particularly in view of the fact that power has been vested specifically in the Consolidation Officer to effect partition the appeal arising out of a claim of partition must abate. I think, the argument is well founded and until notification is made under Section 5 (1) or Section 41 of the Act, the relief of partition is not available to be granted in the Civil Court. Accordingly, the objection raised on behalf of the respondent is upheld and the appeal is directed to have abated. After cancellation of the notification, it may be open to the plaintiff to revive his claim in accordance with law. I make no direction for costs.