Allowed

Aparti Patra v. Paramananda Patra

Orissa HC13 Sept 2017SA/136/1988

Case brief

AI extract

What is this about?

The Orissa High Court held that civil courts retain jurisdiction under Section 51 of the Consolidation of Holdings Act when a cause of action arises post-consolidation closure or if authorities failed to comply with the Act. The appeal allowed, impugned judgments set aside, and matter remanded for de novo hearing.

What did the court decide?

Impugned judgments set aside; appeal allowed; matter remitted to trial court for de novo hearing.

Aparti Patra Vs Paramananda Patra — Land Acquisition | Orissa HC (2017)

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HIGH COURT OF ORISSA: CUTTACK

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S.A. No.136 of 1988

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From the judgment and decree dated 12.1.1988 and 28.1.1988 respectively passed by Sri S.K. Pradhan, learned Subordinate Judge, Bhubaneswar in T.A.16 of 1986 confirming the judgment and decree dated 17.5.1986 and 3.7.1986 respectively passed by Sri B.D. Tripathy, learned Munsif, Bhubaneswar in O.S. No.119 of 1985.

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Aparti Patra ……….……… Appellant ---versus— Paramananda Patra and others …………..…… Respondents

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For Appellant : Mr. Dwarika Prasad Mohanty, Advocate

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For Respondents : None

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J U D G M E N T

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P R E S E N T:

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THE HON’BLE DR. JUSTICE A.K. RATH

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----------------------------------------------------------------------------------Date of Hearing :01.09.2017 │ Date of Judgment:13.09.2017 -----------------------------------------------------------------------------------

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Dr. A.K. Rath, J. Plaintiff is the appellant against an affirming judgment.

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2. The case of the plaintiff is that he is owner of Ac.0.13 dec. of land appertaining to sabak settlement plot nos.790, 830 and 831 of mouza-Bhanragada, Dist.-Puri, which corresponds to hal plot no.1717. In the consolidation record of right, the aforesaid area was reduced to Ac.0.03 dec. The defendants’ plot no.1567 area Ac.0.18 dec. situates to the east side of his plot. He claimed that the reduced area had been amalgamated in the defendants’ plot. In the year 1984, he filed Demarcation Case No.762/1984 before the Tahasildar, Bhubaneswar. The case is pending due to noncooperation of the defendants. With this factual scenario, he

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instituted O.S. No.119 of 1985 in the court of the learned Munsif, Bhubaneswar for confirmation of possession, correction of settlement ROR and permanent injunction.

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3. The defendant nos.1 and 2 filed written statement denying the assertions made in the plaint. The case of the defendant nos.1 and 2 is that the consolidation ROR in respect of the suit plot was published on 20.7.1981. The plaintiff did not raise any objection before the consolidation authority. It was further pleaded that the suit is barred under Sec.51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as “OCH & PFL Act”). The suit property was donated to the father of the plaintiff by the original owner Krushna Chandra Ray. The plaintiff remained in possession of Ac.0.10 dec. of land. They are in possession of Ac.0.18 dec. Thus the consolidation record of right was correctly prepared.

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4. Stemming on the pleadings of the parties, learned trial court struck seven issues. Both the parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that the plaintiff had no semblance right, title and interest over the property. The suit is barred on the principles of res judicata. Held so, it dismissed the suit. The unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned Sub-Judge, Bhubaneswar in T.A. No.16 of 1986, which was eventually dismissed.

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5. The second appeal was admitted on the substantial question of law enumerated in ground no.2 of the appeal memo. The same is:

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“2. For that in view of the decisions reported in 1988 (65) C.L.T. 440 (F.B.) and 1988 (I) O.L.R. 524 the courts below should have no jurisdiction

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to pass any order relating to right, title and interest in respect of non consolidable land. Hence the decision passed by the consolidation authorities in respect of homestead land of the parties will not bar the civil court to decide the same dispute afresh and the claim of plaintiff will not be barred by the principles of res judicata.”

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6. Heard Mr. Dwarika Prasad Mohanty, learned counsel for the appellant. None appeared for the respondents.

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7. Mr. Mohanty, learned counsel for the appellant submitted that while answering issue no.6, learned trial court came to a conclusion that except the exhibited documents, the plaintiff had not filed any other documents to show that the suit plot corresponds to his sabik plot nos.790, 830 and 831 area Ac.0.13 dec. Due to lack of identity and lack of specification of correct area in possession of the plaintiff, no relief of confirmation of possession can be allowed. But then, the plaintiff had exhibited the draft record of right of the settlement, which was suspended due to intervention of the consolidation operation. The draft ROR stands in the name of Abhinna Patra, the father of the plaintiff. The draft ROR also discloses the hal not-final settlement plot no.1717 corresponds to sabak plot no.790. The same is in conformity with the pleadings made in the plaint. After the consolidation operation started, draft record of right was published at different stages. In not-final settlement, plot no.1717 has been reflected. But the area of the plot has been reflected as Ac.0.10 dec. There is no basis to reduce the area from Ac.0.13 dec. to Ac.0.10 dec. The final consolidation ROR had been exhibited as Ext.4. On a comparison of sabak settlement plot with that of the hal settlement as well as the consolidation plots, it is apparent that the area of Ac.0.13 dec. had been reduced to Ac.0.10 dec. Both the consolidation as well settlement map had been exhibited as Exts.5 and 6 for identification. Thus the findings of

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the learned trial court are not correct and liable to be set aside. He further contended that the findings of the court below that the ownership of the land having been finally decided by the consolidation authority, the decision of the consolidation authority would operate as res judicata is not sustainable in the eye of law in view of the decision of the Full Bench of this Court in the case of Gulzar Khan vs. Commissioner of Consolidation and others, 1993 (II) OLR-194. The present suit has been filed for correction of the consolidation ROR with other reliefs. The cause of action for filing the suit having arisen after final publication of the consolidation record of right, the suit is maintainable.

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8. The civil court has plenary jurisdiction. Seventy-five years ago, the Privy Council in the case of Secretary of State vs. Mask & Co., AIR 1940 PC 105 held that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if the jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

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9. In Gulzar Khan (supra), question arose whether the power conferred by Sec.37 of the OCH & PFL Act would be available for exercise after a notification has been issued as contemplated by Sec.41(1) of the OCH & PFL Act on the subject that consolidation operations have been closed in the unit, the result of which is that the village or villages forming part of the unit cease to be under consolidation operations. The Full Bench of this Court summarised the following principles.

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“36. We may conclude our views relating to Civil Court’s jurisdiction by stating that the same would be available after closure of consolidation operations only in any one of the following circumstances;

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(i) The cause of action accruing after the closure of the consolidation operations, a/a Suba Singh.

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(ii) If the consolidation authorities had taken the decision without complying with the provisions of the Act or had not acted in conformity with the fundamental principle of judicial procedure (which would take within its fold the case of violation of natural justice), vide principle No.(ii) of Magulu.

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(iii) Obtaining of order from the hand(s) of consolidation authorities by playing fraud on the party who seeks to approach the Civil Court, as per Karbalai Begum’s case.”

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10. In view of the authoritative pronouncement of the decisions cited supra, the irresistible conclusion is that the civil court has the jurisdiction to entertain the suit in spite of the bar contained in Section 51 of the OCH & PFL Act. Both the courts below fell into patent error in holding that the suit is barred by res judicata and the civil court has no jurisdiction to decide the question. The inescapable conclusion is that the impugned judgments are not sustainable in the eye of law. The substantial question of law is answered accordingly.

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11. Resultantly, the impugned judgments are set aside. The appeal is allowed. The matter is remitted back to the learned trial court for de novo hearing.

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………………………………. Dr. A.K. Rath,J.

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Orissa High Court, Cuttack

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The 13^th September, 2017/Basanta

Aparti Patra v. Paramananda Patra

Case brief

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Aparti Patra v. Paramananda Patra

Case brief

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