Prahallad Behera Vs State of Orissa

IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.219 of 1990

[From the judgment and decree dated 27.3.1990 and 11.4.1990 respectively passed by learned Addl. District Judge, Bhadrak in T.A. No.75/227 of 1986/87 reversing the judgment and decree dated 12.11.1986 and 20.11.1986 respectively passed by learned Munsif, Bhadrak in 0.S. No.136/85-1]

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AFR

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Prahallad Behera (dead) Ramamani Behera & Others …. Appellants

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-Versus-

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State of Odisha and others

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…. Respondents

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Advocate(s) appeared in this case:

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For the Appellants :M/s. Maheswar Mohanty & Nirakar Behera, Advocates For Respondents : Mrs. Jyotsnamayee Sahoo, Addl. Standing Counsel

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CORAM:

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT

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12^th February, 2026

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SASHIKANTA MISHRA, J.

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The legal heirs of the original plaintiff in OS

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No.136/85-I of the Court of learned Munsif, Bhadrak are

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before this Court questioning the correctness of the judgment passed by learned Additional District Judge, Bhadrak in Title Appeal No.75/227 of 1986/87 on 27.03.1990 followed by decree, whereby the judgment dated 12.11.1986 passed by the Trial Court in the aforementioned suit followed by decree, was reversed.

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For convenience, the parties are referred to as per their respective status before the Trial Court.

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The original plaintiff’s case is that the suit land originally belonged to the ex-landlord Habibur Reheman, who executed an unregistered lease deed in his favour on 13.06.1943 and delivered possession. Since then, the plaintiff paid rent to the ex-landlord and reclaimed the suit land. He grew paddy and other vegetables over the vacant land and also excavated a tank on a portion for pisciculture. He also constructed a farm house over the suit land. Being in possession for more than 40 years, he claims to have acquired occupancy right. After vesting of estates, the plaintiff paid rent to the State. Consolidation operation

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started in the year in the year 1979, wherein ROR was issued in his favour. In the meantime, the Tahasildar, Bhadrak (defendant No.2) being influenced by some persons, initiated OEA Case No. 1 of 1976 under Section 5(i) of the OEA Act. The legal heirs of the ex-landlord were not made parties. No opportunity of hearing was granted to him. In the final ROR, the lease was set aside and the right, title and interest of the plaintiff was extinguished. According to the plaintiff, said order is void, having been passed behind his back and therefore, not binding on him. On such facts, the plaintiff instituted the aforementioned suit for a declaration that the order dated 05.04.1984 passed by the Tahasildar in the OEA Case is void and without jurisdiction.

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The defendants contested the suit claiming that the nature of the land is communal and belonged to the exintermediary, Md. Habibur Reheman being recorded under Anabadi Khata. The status of the land was Bajyapti Madhya Satwadhikari. The land vested in the State free from all encumbrances after coming into force of the OEA Act. It was

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further stated that the plaintiff appeared in the OEA case but failed to produce the purported hata patta and did not adduce any evidence. The lease deed relied upon by him is a fabricated one and so also the rent receipts supposedly granted by the ex-landlord. The Tahsildar conducted field enquiry and found two tanks thereon which were being used by the villagers. The house constructed over the suit land was described as library by them. The Tahasildar was thus competent to initiate the proceeding and rightly passed the order in question finding the plaintiff not in physical possession.

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Basing on the rival pleadings, the trial Court

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framed the following issued for determination.

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“1. Has the plaintiff any cause of action to file the suit against the defendants?

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2. Is the suit maintainable in the present form?

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3. Is the suit barred by limitation?

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4. Is the order dtd.5.4.84 passed by the defendant No.2 in 5(1) case No.1/76 valid and binding on the parties?

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5. Is the suit barred U/S 39 of the OEA Act.

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6. Is the suit bad for want of notice U/O 1 Rule 8 CPC?

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7. Is the notice U/S 80 CPC valid and legal?

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8. Is the suit property valued and proper C. fees paid?

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9. To what relief, if any, the plaintiff is entitled to?”

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After analysing the oral and documentary evidence on record, the Trial Court found that no notice of the OEA Proceeding was issued to the lesser and lessee, i.e., the ex-landlord and the plaintiff respectively. As such, the order was void. On such finding, the suit was decreed.

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The plaintiff carried appeal. The First Appellate Court considered the unregistered lease deed, marked Ext-7 bearing the date 13.06.1943. Taking note of the plaintiff's age as on the date of institution of the suit, the First Appellate Court found that the lease deed was purportedly executed when the plaintiff was only 13 years old. It was further found that the document contained mutilations, particularly the portion where the age was described. Moreover, the order of the Tahasildar revealed that the plaintiff was absent. The Tahasildar having conducted field inquiry found the plaintiff not in possession. The hata patta

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issued by the ex-intermediary was created after 01.01.1946 and therefore, the proceeding was valid. On such findings, the First Appellate Court reversed the Trial Court's judgment and decree and dismissed the suit.

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Being further agrrieved, the plaintiff filed the second appeal, which has been admitted on the following substantial questions of the law.

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“(A) Whether the declaration in question could be adjudicated by Consolidation authorities or is to be adjudicated by the Civil Court?

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(B) Whether the successors of the ex-landlord were necessary parties in O.E.A. proceeding?

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(C) Whether, non-challenge of the consolidation ROR No. 124, published on 17.01.1983 in respect of the suit land in favour of original plaintiff-Prahallad Behera (ancestor of the appellants) has created exclusive title in favour of the appellants as decided in case law, i.e. 2015(1) OLR-361 (Chindamani Kandi & Others v. Arjuna Kandi & Others)?

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(D) Whether, the consolidation ROR in respect of the suit land under Ext.l published on 01.07.1983 in favour of original plaintiff Prahallad Behera (ancestor of the appellants) is binding in view of Ext-3, i.e., the certified copy of the order dated 05.04.1984 in OEA Case No. 01 of 1976 U/s-5(i) of OEA Act-1951?”

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Be it noted that the present appeal was

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originally heard and disposed of by an Hon’ble Single Judge of this Court by judgment dated 20.11.2017. However,

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contending that the judgment was passed when the original plaintiff had already expired, the LRs of the original plaintiff filed an application for review being RVWPET No. 293 of 2020. By judgment dated 07.12.2022, a co-ordinate Bench of this Court found that the Second Appeal was filed in the year 1990 and the plaintiff died on 15.06.1996. Thus, the judgment having been passed on 20.11.2017 without noticing the death of the plaintiff, is a nullity. On such ground, the review was allowed by recalling the judgment dated 20.11.2017. This is how the matter was heard again by this Bench.

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Heard Mr. Maheswar Mohanty, learned counsel appearing for the plaintiff-appellants and Ms. J. Sahoo, learned Addl. Standing Counsel for the State.

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Mr. Mohanty assails the impugned judgment mainly on the ground that the Consolidation Authorities having recognised the title of the plaintiff and published ROR on 17.01.1983 in his favour and the same not having

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been challenged by the State Authorities, it is no longer

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open to them to question his title. The Consolidation ROR has to be thus, treated as final and binding on them. As regards the proceeding under the OEA Act, Mr. Mohanty would argue that the final order therein was passed on 05.04.1984 after publication of the consolidation ROR, which is therefore, a nullity. In any event, no notice being issued to the ex-intermediary by the Tahasildar, the order is rendered nullity on such score also. The Civil Court therefore, has jurisdiction to entertain the suit filed to declare the order void. The Trial Court rightly decreed the suit finding the OEA proceeding marred by procedural errors. In support of his contentions, Mr. Mohanty has cited two judgments of this Court in Srikrishna Mohapatra and another vs. State of Orissa and others¹ and Chintamani Kandi (Dead) after him, his L.Rs. Para Dei and others vs. Arjuna Kandi and others² .

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Per contra, Mrs. Sahoo would argue that the

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OEA proceeding was initiated in the year 1976, while the consolidation proceeding began in 1979. She further

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1 1974 (1) CWR 51

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2 2015 (1) CLR 360

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submits that the plaintiff, if aggrieved by the order passed in the OEA proceeding should have preferred appeal as provided by the statute. In view of Section 39 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short ‘OCH & PFL Act’), the suit was not maintainable. With regard to the consolidation ROR, Mrs. Sahoo would argue that the very basis of the claim of title of the plaintiff having been found invalid, mere publication of the consolidation ROR cannot confer any right or title on him.

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At this stage, reference to the OCH & PFL would

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be useful. Sub-Section (4) of Section 4 reads as follows:

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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:

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Provided that no such order shall be passed without giving the parties concerned an opportunity of being heard:

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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, -

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(a) every order passed by the Court under clause (4) in relation to the lands situate in such area or part thereof, as the case may be, shall stand vacated; and

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(b) all such suits and proceedings as are referred to in clause (3) or clause (4) which relate to lands situate in such arrear part thereof, as the case may be, shall be proceeded with and disposed of in accordance with the law as if they had never abated:]

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Provided also 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 proper consolidation authority in accordance with the provisions of this Act or the rules made thereunder.”

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The question whether this provision takes away the rights of

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the revenue courts is answered in Section-51, which is

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reproduced below

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“51. Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions contained in clause (3) of section 4 and sub-section (1) of section 7-

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(1) all questions relating to right, title, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction of Revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of this Act by the appropriate authority during the consolidation operations; and

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(2) no Civil Court shall entertain any suit or proceeding in respect of any matter which an officer

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or authority empowered under this Act is competent to decide.” [Emphasis supplied]

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Therefore, the Act does not contemplate abetment of proceedings pending before the revenue authority/court on issuance of notification under Section-4 of the OCH & PFL Act. In short, it does not take away the jurisdiction of the OEA Collector, in the instant case, the Tahasildar. The First Appellate Court, referring to the above statutory provisions has also held so. This Court finds nothing wrong in such finding.

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Coming to the question whether the declaration that the order passed by the OEA Collector is void, could have been sought for in a suit, this Court is of the considered view that while Section 39 of the OCH & PFL Act places a bar on the jurisdiction of the Civil Court, yet it is well-settled that the Civil Court has ample jurisdiction to interfere where the statutory procedure is found to have been violated or principles of natural justice have not been followed etc. Section 39 therefore, cannot be treated as an absolute bar. This answers substantial question No.(A).

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As to the question whether the successors of ex-intermediary were necessary parties before the OEA Collector, this Court is more persuaded to concur with the finding rendered by the First Appellate Court that the lease in question could not have been granted to the plaintiff, who was a minor at the relevant time being aged only 13 years. The plaintiff has not adduced any evidence to the contrary. The document itself contained mutilation significantly on the portion describing the age of the plaintiff. It is also found that the lease deed was created after 1946 and antedated. In the absence of any clear-cut proof, this Court is unable to accept such finding. Regardless, fact remains that the lease deed itself appears to be a created document as held by the First Appellate Court for the reasons indicated.

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Such being the factual position, nothing further survives for adjudication as the plaintiff's case is found to have been based on a created document and therefore, not genuine and valid. Having held so, this Court finds it unnecessary to go to the question as to whether the ex-

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intermediary was a necessary party or not. This answers substantial questions No.(B)

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As regards question Nos. (C) and (D), this Court having already held that the fundamental basis of the plaintiff's claim i.e., the unregistered lease deed purportedly executed by the ex-intermediary has no legs to stand, issuance of consolidation ROR prior to the order passed in the OEA proceeding shall have no effect nor confer any right on the plaintiff. This Court is persuaded to hold so for the reason that the First Appellate Court found that the plaintiff never appeared before the OEA Collector nor adduced any evidence. The OEA Collector made a spot visit and physically found the existence of two tanks on the suit land being used by the villagers. He also found the plaintiff not in possession. For all these reasons therefore, it cannot be said that the plaintiff had acquired valid title in respect to the suit property at any point of time, much less by the mere publication of consolidation ROR in his favour. This answers the substantial question Nos. (B) and (C).

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Thus, from a conspectus of the analysis of facts and law, this Court is persuaded to concur with the findings of the First Appellate Court and therefore, finds no reason to interfere with the impugned judgment and decree.

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In the result, the appeal fails and is therefore, dismissed without any cost.

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.………….…………….. Sashikanta Mishra, Judge

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Orissa High Court, Cuttack

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The 12^th February, 2026/ A.K. Rana, P.A.

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Signature Not Verified

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Digitally Signed Signed by: AJAYA KUMAR RANA Designation: P.A. Reason: Authentication Page 14 of 14 Location: HIGH COURT OF ORISSA, C UTT ACK Date: 12-Feb-2026 16:23:29

Prahallad Behera v. State of Orissa

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Prahallad Behera v. State of Orissa

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