NAYANASUNDARI BEWA Vs. SUBASH CH. BEHERA AND ORS.
HIGH COURT OF ORISSA
Subash Ch. Behera And Ors.
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P.K.Mohanti, J. -
(1.) THIS civil revision is directed against an order for partial abatement of a final decree proceeding under the provisions of Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the "Act").
(2.) OPPOSITE parties 2 to 6 filed Title Suit No. 74 of 1962 for partition of the suit properties which are situated at different villages. On 28 -3 -1966 a preliminary decree for partition was passed on compromise, declaring 7 annas share of the Plaintiffs and 9 annas share of Defendants 1 and 2 in the suit properties. On 15 -9 -1969 the Plaintiffs applied for making the preliminary decree final. During the pendency of the final decree proceedings, Defendant No. 1 filed a petition stating therein that the lands in suit had come under consolidation operations and the suit stood abated by virtue of section (4) of the Act. Opposite party No. 1 who was Defendant No. 2 in the suit filed counter contending that the rights of the parties having already been declared by a preliminary decree there could be no abatement of the suit and that some of the suit properties being situated outside the consolidation area the entire suit could not abate. It was brought to the notice of the Court that on 10 -8 -1973 the State Government had issued a notification under Section 3(1) of the Act bringing the village Champati under Salipur Police Station in the district of Cuttack under consolidation operation. The learned Subordinate Judge after hearing the parties directed that the final decree proceedings so far as it relates to the lands in village Champati would stand abated and that the proceeding would continue so far as other properties are concerned. Aggrieved by this order Defendant No. 1 has come up in revision. The question raised is whether a final decree proceeding can abate under Section 4(4) of the Act upon publication of the notification issued under Section 3(1) of the Act, Section 4(4) of the Act reads as follows:
(3.) 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 in the publication of notification under Section 41 or Sub -section (1) of Section 5, as the case may be -
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(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.
Provided that no such order shall be passed without giving the parties concerned an opportunity of being heard:
Provided further that on the issue of a notification under Sub -section (1) of Section 5 in respect of the said area or part thereof, every such order in relation to the lands situate within such area or part thereof, as the case may be, shall stand vacated and all such suits and proceedings shall be proceeded with and disposed of in accordance with the law as if they had never abated:
Provided that such abatement shall be without prejudice to the right of the person affected to agitate the right or interest which formed the subject matter of the said suit or proceeding before the paper consolidation authority in accordance with the provisions of this Act or the rules made thereunder.
4. On a plain reading of the provisions it is obvious that the bar of Section 4(4) would apply on try to those proceedings which relates to 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 the Act. A proceeding pending before the Civil Court shall abate if it is a proceeding in respect of matters which can validly be decided or adjudicated upon by Consolidation Authorities.;
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