Decided on March 02,1978

Niranjan Panigrahi And Ors. Appellant
Shyamsundar Pratihari Respondents


P.K. Mohanti, J. - (1.) THIS Second Appeal was preferred by the Plaintiffs on 18 -11 -1974 against a decree of affirmance. The suit was for declaration of title and permanent injunction in respect of plot No. 1118 measuring 0.60 acre in village Biswanathpur and plot No. 1119 measuring 0.32 acre in village Biswanathpur Kharida.
(2.) ON 22 -11 -1977 the learned Counsel for the Respondent filed a memo stating therein that the suit out of which this second appeal arises has abated under the provisions of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 on the publication of a Notification under Sub -section (1) of Section 3 of the Act in the Official Gazette dated 9 -4 -1976. The Plaintiffs -Appellants filed an affidavit on 9 -12 -1977 stating therein that the Notification under Section 3(1) of the Act applies only to village Biswanathpur and not to village Biswanathpur Kharida and moreover, the suit land being an arch ad consisting of 45 to 50 cocoanut trees it is not at all consolidable and the consolidation authorities have no jurisdiction over the same. The Respondent filed a counter affidavit on 14 -12 -1977 stating therein that Biswanathpur and Biswanathpur Kharida are included in one revenue village, namely. Biswanathpur and that there is no separate revenue village as Biswanathpur Kharida. It was also stated that the suit land is not an orchid, but it is an agricultural land with some cocoanut trees existing thereon. The relevant portion of Section 4 of the Act runs thus:
(3.) EFFECT of notification - Upon the publication of the notification issued under Sub -section (1) of Section 3 in the Official Gazette, the consequences as hereinafter setforth, shall, subject to the provisions of this Act, ensue in the consolidation area till the publication of notification under Section 41 or Sub -section (1) of Section 5, as the case may be xxx xxx xxx (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. 4. The expression "land" used in Sub -section (4) of Section 4 has been defined under Section 2(0) to mean land of whatever description. "Agricultural land" as defined under Section 2(b) of the Act means land held or occupied for agriculture or for purposes connected with agriculture and includes trees existing on such land. The expression "consolidation area" has been defined under Section 2(g) to mean the area in respect of which a notification under Sub -section (J) of Section 3 has been issued.;

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