SAKHI BEWA AND ANR. Vs. HEMA DEI AND 23 ORS.
LAWS(ORI)-1978-2-15
HIGH COURT OF ORISSA
Decided on February 20,1978

Sakhi Bewa And Anr. Appellant
VERSUS
Hema Dei And 23 Ors. Respondents

JUDGEMENT

B.K. Ray, J. - (1.) THE Plaintiffs who are Petitioners in this case instituted the suit out of which this civil revision arises against as many as 24 Defendants for the following main reliefs viz, (a) a preliminary decree for partition in respect of Plaintiffs' one -fifth share in the properties described in Schedules Band C of the plaint, (b) a declaration that Defendant No. 8 is not the son of Plaintiff No. 1, natural or adopted, (c) a declaration that the entry of the name of Defendant No. 8 in the finally published record -of -rights of the present settlement is wrong and (d) correction of the settlement record by deleting the name of Defendant No. 8 and recording the names of the Plaintiffs in its place. White the suit was pending, the village in which the suit properties are situate came under the consolidation proceedings under Orissa Act 21 of 1972 (hereinafter called the 'Act') as a result whereof a notification under Section 3 of the Act was published. There after, the Defendants filed an application in the trial Court with a prayer that the whole suit might be declared to have abated under Section 4(4) of the Act. The application was opposed by the present Plaintiffs. The trial Court allowed the application in part saying that the entire suit abated except in respect of the reliefs for a declaration that Defendant No. 8 is not the son of Plaintiff No. 1 either natural or adopted and for partition of the homestead land which was the subject -matter of the suit. In other words, with regard to those two reliefs the trial Court said that the suit had not abated as a consequence of the notification under the Act. It is against that part of the impugned order which is against the Plaintiffs the present revision has been filed. According to the Plaintiff -Petitioners, the Court below should not have held that the suit abated in respect of the relief for partition of agricultural lands in the suit, the relief for a declaration that the entry of the name of Defendant No 8 in the finally published record -of -rights of the present settlement is wrong - and the relief for deletion of the name of Defendant No. 8 from the settlement records and recording the names of the Plaintiffs in its place.
(2.) THE relevant portion of Sub -section (4) of Section 4 of the Act may be quoted below: Every suit and proceedings for declaration of any right or interest in any land situate with in 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. Section 7(1) of the Act runs thus: Upon the publication of the notification issued under Sub -section (1) of Section 3, no partition of a holding lying in the consolidation are 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. These two provisions clearly indicate that so far as the relief for partition of agricultural land is concerned, the authorities under the Act are fully empowered to grant the relief in any case notwithstanding anything to the contrary contained in any other law for the time being in force. No civil Court shall entertain any suit or proceeding in respect of any matter which an officer or authority empowered under this Act is competent to decide. This being the position of law, there can be no escape from the conclusion that the Plaintiffs suit for relief of petition of agricultural lands must stand abated after the publication of the notification under the Act as held by the Court below. So far as the Plaintiffs' claim for the relief for correction of the record -of -rights as mentioned above is concerned. it is contended by Mr. S K Dey, learned Counsel for the Petitioners, that the aforesaid provisions of the Act referred to above do not being within their fold a suit for correction of a record -of -rights on the ground of fraud. The relief relating to the correction of the record -of -rights in the present case is based on the allegations made in paragraphs 5 and 6 of the plaint wherein it has been clearly stated that Plaintiff No. 1 being a helpless and purdanashin Hindu widow had to depend on Indramoni and Defendant No. 7 for looking after the settlement affairs relating to her lands and that Indramoni and Defendant No, 7 taking advantage of the confidence thus reposed in them by Plaintiff No. 1 practised fraud and fraudulently got the name of Defendant No. 8 recorded in the settlement papers. Mr. Dey, therefore, rightly contends that there is no provision under the Act which empowers the officers under that Act to decide and dispose of the question as to whether fraud has been committed while preparing the settlement records. This contention of Mr. Dey is supported to certain extent by a decision of this Court Gangadhar Saku v. Chintamani Sahu : 42 (1976) C.L.T. 1218. In that case a suit for setting aside a compromise decree in a previous title suit on the ground of fraud was held not to have abated under the provisions of the Act.
(3.) FOR the reasons given above I allow the revision in part, hold that the Plaintiffs' suit in respect of relief (c) in paragraph 14 of their plaint does not abate as held by the trial Court and set aside the order of the trial Court to that extent. Parties are to bear their own costs. Revision partly allowed.;


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