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Siba Prasad Dashson v. Kali Charan Dash Opposite Party.
Factual and Procedural Background
This civil revision challenges an order dated 29-7-1980 of the Subordinate Judge, Bargarh in Title Suit No. 91/70, which held that the suit abates in part under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (the “Act”).
The petitioner together with opposite parties 4, 5 and 6 instituted a suit seeking: (a) partition of the suit properties by metes and bounds and allotment of the due shares; (b) adjustment of equity in respect of profits; (c) costs and future interest; and (d) other reliefs in law and equity.
The plaintiffs’ case rested on an earlier partition effected by Late Dhanpati Dash (registered deed dated 26-6-1954 and subsequently modified by an award dated 20-8-1959). Dhanpati died on 8-12-1954 and his widow Sriya possessed his share for life. On Sriya’s death on 24-8-1975, Dhanpati’s share vested in his descendants including Shiba Prasad. Shiba Prasad purportedly transferred his interest to the plaintiffs by a registered deed of gift dated 31-3-1976, and the plaintiffs allege they have a 1/3 share in the properties; defendant No.1 is alleged to have 1/3 and defendants Nos.2 and 3 each 1/6.
Defendant No.1, by written statement, denied the plaintiffs' averments. He asserted that most suit properties were allotted jointly to Dhanpati and Sriya in the 1954 partition; Sriya later became absolute owner (relying on Section 14 of the Hindu Succession Act) and executed a will dated 17-9-1973 in favour of defendant No.1, who has since been in possession. Defendant No.1 also challenged Shiba Prasad's alleged rights.
The trial Court framed issues including one on maintainability. During trial a petition was filed that the suit abates under Section 4(4) of the Act. The Subordinate Judge held that the suit abates in respect of certain suit properties (except H.S. Plot Nos. 8, 5 and 4 and Plot No. 223 under particular schedule items). The present revision challenges that order.
Legal Issues Presented
- Whether the suit (or parts of it) abates under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972.
- Whether questions regarding partition and determination of right, title and interest in the suit properties fall within the competence of the Consolidation Authorities under the Act.
- Whether the validity of the deed of gift executed by Shiba Prasad and the validity of the will executed by Sriya are matters that must be decided by the Consolidation Authorities (i.e., whether such questions are within the special authority's jurisdiction or fall outside it).
- Whether the court should look to the substance of the dispute or merely to the reliefs claimed when determining abatement under the Act.
Arguments of the Parties
Petitioners' Arguments
- The trial Court erred in holding that the suit abates in respect of some of the suit properties because the suit involves adjudication of the validity of Shiba Prasad's deed of gift and Sriya's will, matters which (according to petitioners) are not within the competence of the Consolidation Authorities under the Act.
- The correct test is the substance of the dispute, not merely the reliefs sought; on the substance, the dispute allegedly falls outside the Consolidation Authorities' competence.
Defendant No. 1's Position (as set out in written statement)
- Most suit properties were allotted jointly to Dhanpati and Sriya in an earlier partition; Sriya subsequently possessed the properties in her own right and acquired absolute ownership under the Hindu Succession Act (Section 14).
- Sriya executed a will in favour of defendant No.1 dated 17-9-1973, and he has been in possession since her death; Shiba Prasad never had any right over the suit properties, so his alleged deed of gift to the plaintiffs confers no rights.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| (1982) 54 Cut LT 584 : AIR 1983 Orissa 114 — Jadumani Biswal v. Narayan Chandra Biswal | Supports the proposition that if the subject-matter of a suit is within the competence of the Consolidation Authorities and the authorities can grant the reliefs sought, the civil suit shall abate under Section 4(4). | Used to state the controlling ratio that suits dealing with matters amenable to the special Act abate; court relied on this as part of the line of authorities endorsing the “real and effective relief” test. |
| (1983) 55 Cut LT 561 — Padma Charan Mohanty v. Koili Bewa (AIR 1982 Orissa 218) | Part of the body of decisions holding that a suit pending in Civil Court abates where the subject-matter can be dealt with by Consolidation Authorities. | Relied upon as precedent reinforcing the test for abatement under the Act. |
| Prasanna Mali v. Raghumani Misra — (1984) 1 OLR 54 | Continues the line of authority concerning abatement of suits where Consolidation Authorities can grant the reliefs sought. | Invoked as supporting authority for the view that the trial Court's abatement was proper where partition relief was sought. |
| Radhashyam Jana v. Jagannath Jena — (1984) 57 Cut LT 65 (Pranabhandhu Panu Ojha v. Bhikari Maharana Ojha) | Further decisions referenced to show consistent application of the principle that suits abate where the special authorities have competence. | Used as part of the cumulative precedent cited to justify abatement where Consolidation Authorities are competent to decide right, title and interest. |
| (1979) 47 Cut LT 494 — Puni Bewa v. Ananta Sahu | Affirmed that partition matters fall within the jurisdiction of Consolidation Authorities and thus suits for partition abate under Section 4(4). | Applied directly to the present case to support the conclusion that the relief for partition in the plaint is within the Consolidation Authorities' jurisdiction and therefore the suit abates. |
| AIR 1973 SC 2451 — Gorakh Nath Dube v. Hari Narain Singh | Principle that when a power is vested in an authority, matters incidental to or necessary for the exercise of such power are also vested in that authority by necessary implication. | Applied to hold that questions as to the validity of the deed of gift and the will (though not specifically prayed to be set aside) are incidental to determining right, title and interest and therefore fall within the Consolidation Authorities' competence. |
Court's Reasoning and Analysis
The court proceeded in a stepwise manner grounded in statutory text and precedent:
- Statutory starting-point: the properties in question fall within the notification issued by the State Government under Section 3(1) of the Act, which brings consolidation-area provisions into play.
- Textual provisions: the court examined Section 4(4) (which provides for abatement of suits and proceedings in Civil Courts in respect of lands within the consolidation area), Section 7(1) (which vests power to effect partition of joint holdings in the Consolidation Authorities), and Section 51 (which bars Civil Courts from entertaining matters which an empowered officer or authority under the Act is competent to decide).
- Precedential rule: relying on a line of decisions, the court adopted the test that if the subject-matter of a suit is available to be dealt with by the Consolidation Authorities and the reliefs sought can be granted by those authorities, then a civil suit shall abate under Section 4(4). The court emphasized the "real and effective relief" test drawn from the precedents.
- Application to facts: the plaintiffs' primary relief sought was partition by metes and bounds and allotment of due shares. Partition is expressly within the jurisdiction of the Consolidation Authorities under Section 7(1). Therefore, that relief "squarely comes within" the authorities' jurisdiction and the suit abates under Section 4(4).
- Substance-of-dispute point: even if the substance (not merely the relief sought) is examined, the pleadings show the central question to be determination of Sriya's right, title and interest in the suit properties — a matter also within the Consolidation Authorities' competence. Thus application of the substance test yields the same result.
- Incidental matters — deed and will: although petitioners contended the validity of Shiba Prasad's deed of gift and Sriya's will were outside the special authorities' competence, the court noted there was no specific prayer in the plaint to set aside those documents. Relying on Gorakh Nath Dube v. Hari Narain Singh, the court held that matters incidental or necessary for exercise of the authorities' powers (i.e., validity of documents relevant to determination of right, title and interest) are within the Consolidation Authorities' jurisdiction by necessary implication.
- Conclusion from analysis: there was no error in the trial Court's order holding that the suit abates in part under Section 4(4) of the Act.
Holding and Implications
Holding: The Civil Revision is dismissed and the impugned order of the Subordinate Judge (holding that the suit abates in part under Section 4(4) of the Orissa Consolidation Act) is upheld. Petition dismissed.
Immediate consequences for the parties (as set out in the opinion):
- The trial Court's determination that the suit abates in respect of specified suit properties stands; those matters are to be dealt with under the Act (i.e., are within the competence of the Consolidation Authorities) rather than by the Civil Court.
- No specific order as to costs was made: the court dismissed the revision but directed that there be no order for costs.
Broader implications: the opinion applies and re-affirms existing precedent on the scope of Section 4(4) and related provisions — it does not purport to set a new principle beyond the authority of the cited cases. The decision's practical effect is to direct that partition and related incidental questions concerning right, title and interest for properties within a notified consolidation area be addressed by the specialized consolidation machinery rather than by the Civil Courts.
Petition dismissed.
1. This revision is directed against the order dated 29-7-1980 by the Subordinate Judge, Bargarh in Title Suit No. 91/70 holding that the suit abates in part under S. 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the ‘Act’).
Before coming to the facts relevant for the purpose of the case it will be helpful to give the genealogy showing relationship between the parties:
The petitioner along with opposite parties 4, 5 and 6 filed the suit praying for the following reliefs:—
(a) Partition of the suit properties by metes and bounds and allotment of the due share to the plaintiffs and defendants;
(b) Adjustment of equity so far the profits accrued, accruing or shall accrue from the suit properties after account is taken;
(c) Costs of suit and future interest; and
(d) Any other relief as per law, equity and good conscience;
The gist of the case of the plaintiffs was that Late Dhanpati Dash as the father and Karta of his family effected a partition of his joint family properties amongst the different co-sharers and coparceners by a registered deed of partition on 26-6-1954 retaining a share for himself which constitutes the disputed properties in the suit. This partition was later on modified by an award dated 20-8-1959, by arbitrators appointed by the parties. Dhanpati was possessing his share separately in his own right and title till his death on 8-12-1954 whereafter his share of the properties was allowed to be possessed by his widow Sriya to be enjoyed by her during her lifetime for her maintenance. Sriya having died on 24-8-1975 the share of Dhanpati possessed by Sriya as a limited owner devolved on her two sons Shiba Prasad and Kalicharan who were then living and Bairagi Charan and Premalata the son and daughter of her predeceased son Bhakta Prasad. Shiba Prasad transferred his interest in the suit properties in favour of the plaintiffs by a registered deed of gift dated 31-3-1976 and since then the plaintiffs have become owners and co-sharers of the suit properties to the extent of the share of Shiba Prasad. The plaintiffs having thought it convenient to partition the suit properties by metes and bounds gave a notice for this purpose to the defendants but the defendants failed to take any action in pursuance to the said notice. According to the plaintiffs they have jointly 1/3rd share appertaining to the interest of Shiba Prasad Dash in the suit properties, defendant No. 1 has 1/3rd and defendant Nos. 2 and 3 each has 1/6th share in the suit properties.
Defendant No. 1 (opposite party No. 1) in his written statement denied the averments in the plaint. According to him, the suit properties except H.S Plot No. 1263 appertain to the share that was allotted jointly to late Dhanpati Dash and Sriya Dash in the partition effected by the deed of partition dated 20-6-1954 and registered on 6-4-1974. Since then both Dhanpati and Sriya were in joint possession of the said properties. On the death of Dhanpati on 8-12-1954 Sriya continued to possess that said properties alone in her own right, title and interest. H.S Plot No. 1263 was acquired by late Sriya by way of exchange from her son late Bhakta Prasad and was being possessed by her in her own right, title and interest. After coming into force of the Hindu Succession Act, by virtue of Section 14 thereof Sriya became the absolute owner of the suit properties and possessed the same as such till her death on 24-8-1975. While so possessing the suit properties Sriya disposed of the same by a Will dated 17-9-1973 executed in favour of defendant No. 1. Since the death of Sriya defendant No. 1 has been possessing the suit properties in his right, title and interest. According to the defendant No. 1, Sbiba Prasad never had any right over the suit properties and consequently the alleged deed of gift by Shiba Prasad in favour of the plaintiffs does not confer any right over the suit properties.
2. On the pleadings as stated above, the trial Court framed several issues including one to the effect if the suit for partition is maintainable. During the pendency of the suit, a petition was filed that the suit abates under Section 4(4) of the Act. The learned Subordinate Judge on a consideration of the said application and the objection filed thereto held that the suit abates in respect of the suit properties excepting H.S Plot Nos. 8, 5 and 4 and Plot No. 223 under item Nos. 2, 3, and 6 of the plaint schedule. This revision is directed against the said order.
It is contended on behalf of the petitioners that the trial Court erred in holding that the suit abates in respect of some of the items of suit properties since the suit involves determination of the validity of the deed of gift executed by Shiba Prasad in favour of the plaintiffs and file Will executed by Sriya in favour of defendant No. 1 adjudication of which is not within the competence of the authorities under the Act. It is further contended on behalf of the petitioners that it is the substance of the dispute in the suit which is to be considered for determining the question of abatement of the suit and not merely the reliefs sought.
3. It is not in dispute that the properties in respect of which the suit has been held by the trial Court to have abated come within the notification issued by the State Government under S. 3(1) of the Act. The question whether a suit pending in the Civil Court either at the stage of trial or appeal or revision abates under Sec. 4(4) of the Act has been the subject-matter of consideration in a large number of decisions of this Court. Shortly put, the ratio in the decided cases has been that if the subject-matter involved in the suit is available to be dealt with by the authorities under the special Act and the reliefs sought in the suit can be granted by the said authorities the suit pending in the Civil Court shall abate, vide (1982) 54 Cut LT 584 : (AIR 1983 Orissa 114), (Jadumani Biswal v. Narayan Chandra Biswal), (1983) 55 Cut LT 561, (Padma Charan Mohanty v. Koili Bewa), AIR 1982 Orissa 218, (Prasanna Mali v. Raghumani Misra), (1984) 1 OLR 54. (Radhashyam Jana v. Jagannath Jena), (1984) 57 Cut LT 65, (Pranabhandhu Panu Ojha v. Bhikari Maharana Ojha). In the first case mentioned above the Division Bench took the view that if a suit abates, then the Consolidation Authorities must have jurisdiction to go into the question involved or conversely, if a matter can be gone into by the Consolidation Authorities, then a suit in respect of that matter must abate under S. 4(4). The test to be applied in determining the question whether a suit shall abate or not is whether the parties can get the real and effective relief from the Consolidation Authorities. In all these decisions emphasis has been given on the real and effective relief sought in the suit.
4. The following are the relevant provisions of the statute reference to which is necessary for the purpose of this case. Section 4 enumerates the consequences that follow upon the publication of a notification under Section 3(1) of the Act. Sub-sec. (4) of the said section reads as follows:
“(4) Every suit and proceeding 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.”
Section 7(1) of the Act which expressly vests the power relating to partition of joint holding lying with the consolidation area in the Revenue Officer runs thus:—
“(1) Upon the publication of the Notification issued under sub-section (1) of Sec. 3, no partition of a holding lying in the consolidation area under Section 19 of the Orissa Land Reforms Act, 16 of 1960, shall be effected by the Revenue Officer till the publication of the notification under S. 41 or sub-section (1) of S. 5, as the case may be, and the Assistant Consolidation Officer and the Consolidation Officer shall, in addition to the powers vested in them under this Act, have powers to effect partition of joint holdings on application of any party interested notwithstanding anything to the contrary contained in any other law for the time being in force.”
Section 51 of the Act provides for bar of jurisdiction of Civil Courts in the following terms:—
“51. Bar of jurisdiction of Civil Courts Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions contained in Cl. (3) of Section 4 and sub-section (1) of S. 7(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 (2) no Civil Court shall entertain any suit or proceedings in respect of any matter which an officer or authority empowered under this Act is competent to decide.”
5. From the aforesaid provisions, it is clear that the question of partition can be gone into by the Consolidation Authorities and the relief for partition can be granted by the said authorities. In the present suit, the relief sought being for partition of the suit properties by metes and bounds and allotment of due share to the plaintiffs and defendants, it squarely comes within the jurisdiction of the Consolidation Authorities and the suit abates under Section 4(4) of the Act, vide (1979) 47 Cut LT 494, (Puni Bewa v. Ananta Sahu).
Even accepting the contention of the petitioners that it is the substance of the dispute involved in the suit that is to be taken into consideration and not merely the relief sought, considering the pleadings of the parties the question involved in the suit is one for determination of the right, title and interest of Sriya in the suit properties. Determination of this question also is within the competence of the Consolidation Authorities.
The only other aspect of the matter which remains for consideration is the determination of the validity of the deed of gift executed by Shiba Prasad and the validity of the will executed by the late Sriya. It is pertinent to note that no specific prayer has been made in the suit for setting aside these two documents. It is well settled that when a power is vested in an authority all matters incidental to or necessary for exercise of such power are also vested in the said authority by necessary implication, vide AIR 1973 SC 2451. (Gorakh Nath Dube v. Hari Narain Singh). Applying this principle to the present case, the question whether the deed of gift executed by Shiba Prasad and the will executed by Sriya are valid documents or they are void and inoperative is a matter incidental to the question of determination of right, title and interest of Sriya and the claim for partition by the plaintiffs.
6. In view of the discussion aforesaid, there is no error or infirmity in the impugned order of the Court below holding that the suit abates in part under Section 4(4) of the Act. As such, this Civil Revision is devoid of merit and the same is dismissed, but in the circumstances of the case, there will be no order for costs.
Petition dismissed.
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