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Judgment
Krushna Ram Mohapatra, J—One Basanta Kumar Singhdeo, who was the plaintiff in T.S. No. 262/226 of 2000/1998, filed this appeal assailing the judgment and decree dated 5.1.2009 and 19.1.2009 respectively passed by the learned Civil Judge (Senior Division), Nimapara. During pendency of the appeal, the sole appellant died on 3.11.2010 and his legal heirs are brought on record being substituted vide order dated 3.7.2015 of this Court.
The suit (T.S. No. 262/226 of 2000/1998) was filed for declaration of right, title and interest as well as confirmation of possession of the plaintiff over the suit land and for permanent injunction. Briefly stated, the plaintiff in his plaint asserted that he belonged to a royal family of the Ex-Ruler of Kothadesa Estate under Nimapara P.S. in the district of Puri. The ancestors of the plaintiff were recorded tenants in respect of land appertaining to Mouza Nimapara under Sthitiban status in Khata No. 508 measuring an area of Ac. 67.61 decimals in 1927 R.O.R. The suit land appertaining to Plot No. 2898 to an extent of Ac. 0.31 decimals out of Ac. 0.56 decimals is a part of Khata No. 508 corresponding to consolidation Plot No. 3409 to an extent of Ac. 0.11 decimals and Plot No. 3410 to an extent of Ac. 0.20 decimals. After the death of recorded tenants, their successors-in-interest, namely, Narayan Chandra Singhdeo Lal Saheb, Rama Chandra Rayatsingh and Krushna Chandra Singhdeo were also recorded in respect of the suit land in the land register of Nimapara Tahasil as per Jamabandi No. 508 measuring an area of Ac. 66.41 decimals which included the suit land. The plaintiff was also paying rent on the basis of the entries made in the Jamabandi No. 508. After the death of the recorded tenants, there was amicable partition in the family and the suit land fell to the share of the plaintiff. The plaintiff was residing over the suit land by constructing his residential house and shop rooms after obtaining approval of N.A.C., Nimapara. During consolidation operation, the Consolidation Authorities found possession of the plaintiff in respect of the suit land, but the consolidation operation stopped in the midway in respect of the suit mouza and final publication of the R.O.R. was not made. In the year, 1998, the defendant Nos. 2 and 3, namely, the Sub-Collector, Puri and the Tahasildar, Nimapara initiated eviction drive on the instruction and direction of defendant No. 1, namely, Collector-cum-District Magistrate, Puri and started eviction of the trespassers over the Government land. When the defendants threatened the plaintiff to demolish his residential house, he filed the suit for the aforesaid relief.
None of the defendants, in spite of receipt of the notice, appeared in the suit and thus they were set ex parte.
To establish his case, the plaintiff only examined himself as P.W. 1 and exhibited documents including Ext. 1-the certified copy of the Sabik Settlement R.O.R., Ext. 3-Registered Deed of Partition in the family, Ext. 4-the order of approval passed by the N.A.C., Nimapara and Ext. 6- the orders passed in the consolidation proceeding.
The learned Civil Judge (Senior Division), Nimapara taking into consideration the materials placed before him came to a conclusion that the consolidation proceeding in respect of the suit village was in operation. Hence, the suit would be hit by Section 51 of the Orissa Consolidation of Holding and Fragmentation of Land Act, 1972 (for short ''the Act'') and the suit is bad for non-joinder of co-sharers as parties. Furthermore, an encroachment proceeding was also pending against the plaintiff in respect of the suit land on the ground that the plaintiff was an encroacher. Thus, holding it to be not maintainable, he dismissed the suit vide judgment and decree dated 5.1.2009 and 19.1.2009 respectively. Assailing the said judgment and decree, the plaintiff preferred this appeal.
During course of hearing, leaned counsel for the appellants strenuously urged that Sabik R.O.R. (Ext. 1) in respect of the suit land stood in the names of the ancestors of the plaintiff. He also placed reliance on the Ext. 3, i.e. Registered Deed of Partition executed between the plaintiff and his brothers during their life time, which discloses that the suit land fell to the share of the plaintiff. He also submitted that by obtaining prior approval of N.A.C., Nimapara (Ext. 4), the plaintiff constructed his residential house and some shop rooms over the suit land. The order dated 7.6.1991 passed in Objection Case No. 3984/1372 and order dated 31.12.1990 passed in Objection Case No. 3762/1286 (Ext. 6) filed under Section 15(1) of the Act reveal that the Assistant Consolidation Officer, Denua Camp directed to record Hal Plot No. 3409 under Hal Khata No. 990 to an extent of Ac. 0.11 decimals and Hal Plot No. 3410 to an extent of Ac. 0.20 decimals and bi-Plot No. 3410/4991 to an extent of Ac. 0.08 decimals of mouza Nimapara in the district of Puri (suit land) in the name of the plaintiff. However, it is contended by the learned counsel for the appellants that final R.O.R. could not be published in the name of their predecessor (plaintiff), namely, Basanta Kumar Singhdeo as the consolidation operation was stopped in the suit village and subsequently, encroachment case was initiated against him. He further submitted that the plaintiff also filed Encroachment Appeal No. 1 of 1993 in the court of Sub-Collector, Puri (respondent No. 2) and the eviction order has been stayed. Apprehending dispossession from the suit land, the suit was filed.
Learned Addl. Standing Counsel for the State, on the contrary, made her submission supporting the impugned judgment and decree. She refuted the submission of the learned counsel for the appellants submitting that the trial court has rightly held that the suit is not maintainable as there was no notification either under Section 5(1) or under Section 41 of the Act. Thus, plaintiff could have moved the learned Commissioner under Section 37 of the Act for recording the suit land in his name on the basis of the order dated 7.6.1991 passed by the Assistant Consolidation Officer in Objection Case No. 3984/1372 and order dated 31.12.1990 in Objection Case No. 3762/1286 (Ext. 6). She further submitted that initiation of encroachment case against the plaintiff implies that the suit land is a Government land. Thus, she prayed for dismissal of the appeal.
Taking into consideration the rival contentions of the parties, it is abundantly clear that the consolidation authorities have passed orders in Objection Case Nos. 3984/1372 and 3762/1286 under Section 15(1) of the Act issuing direction to record the suit land in the name of the plaintiff, but no material is available on record to show what happened thereafter. True it is that the plaintiff will succeed on the strength of his own case and not on the weakness of the defendants. It is the duty of the plaintiff to produce all relevant records/notification with regard to closure of the consolidation proceeding in respect of the suit village, but non-production of the materials by the plaintiff does not absolve the Court of its duty to call for the relevant records when a substantial right of the party is to be decided. Order 11 Rule 14 of the C.P.C. empowers the Court to direct the party in the suit for production of the documents for just and complete decision of the suit. Though Ext. 6 suggests that there is a direction to record the suit land in the name of the plaintiff, but no material is forthcoming regarding steps taken by the Consolidation Authorities in pursuance thereof. The learned Addl. Standing Counsel also could not produce any material to show the basis of initiation of encroachment case against the plaintiff more particularly when there is an order to record the suit land in the name of the plaintiff. In such a situation, it would have been proper on the part of the trial court to proceed with the case after obtaining definite information about the stage of consolidation proceeding in respect of the suit village.
Learned counsel for the appellants further submitted that the Consolidation Authorities have no power to grant a relief of injunction. Hence, the suit so far as it relates to the relief of injunction is concerned, is maintainable. In support of his contention, he relied upon a decision in the case of Chintamani Bhanja (deceased by L.R.) Vs. Gokula Chandra Bhanja and Others, AIR 1982 Ori 113 , wherein it was held that the suit for permanent injunction would not abate in view of the fact that such a relief is not possible to be granted by the Consolidation Authorities. Moreover, in view of the ratio decided in the case of Panchu Das and Another Vs. Jata Behera and Others, (1986) 62 CLT 556 , learned trial Court should have stayed the proceeding of the suit till closure of the consolidation proceeding instead of dismissing the same. These aspects were completely brushed aside by the trial Court while considering the question of maintainability of the suit.
While recording its finding an the question of non-joinder of necessary parties, learned trial Court did not make any effort to scrutinize Ext. 3-the Registered Deed of Partition as well as the orders passed by the Asst. Consolidation Officer under Ext. 6, which do not leave any iota of doubt that the suit land fell to the share of the plaintiff in the family partition. Hence, finding of the learned trial Court on the issue of non-joinder of necessary parties is not sustainable.
Law is no more res integra that pendency of OPLE proceeding will not operate as a bar for the civil court to entertain a suit for declaration of title and confirmation of possession and recovery of possession etc. In the case of Government of Andhra Pradesh v. T.K. Rao and another, reported in AIR 1992 SC 1081 and subsequently followed in the case of State of Orissa Vs. Bhanu Mali (Dead) Nurpa Bewa and Others, (1996) 1 OLR 460 and in the case of State of Orissa and Another Vs. Daitari Sahu and Others, (2007) CLT 785 Supp : (2007) 1 OLR 52 , this Court taking into consideration several case laws of this Court and the Hon''ble Apex Court held as under:
"8. xxx xxx xxx
Furthermore, jurisdiction of the Civil Court in such a situation was exhaustively analyzed by this Court in the case of State of Orissa v. Bhanumali (supra) where after referring to various case laws, it was said that the question relating to title of either party can be decided only by the Civil Court and not in a summary proceeding under the O.P.L.E. Act and accordingly, the suit for declaration of title, confirmation of possession or in the alternative recovery of possession along with the matter of eviction under the O.P.L.E. Act would be maintainable in the civil court and Section 16 of the O.P.L.E. Act will not operate as a bar in such situation."
xxx xxx xxx
In view of the discussion made above, this Court has no hesitation to hold that the impugned judgment and decree are not sustainable. Learned trial Court has not at all dealt with the matter in its proper perspective. Accordingly, it is felt expedient in the interest of justice to give an opportunity to the parties to the suit to produce further material with regard to the stage of the consolidation proceeding and steps taken by the Consolidation Authorities pursuant to Ext. 6.
In view of the above, the impugned judgment and decree are set aside and the matter is remitted back to the trial court for fresh adjudication in accordance with law.
With the aforesaid observation and direction, this appeal is allowed, but in the circumstances, there will be no order as to cost.