A suit challenging the validity of an alienation on the ground of want of legal necessity does not abate under Section 4 (4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, as the consolidation authorities have no power to cancel or set aside a document.

D. P. MOHAPATRA, J.

( 1 ) THE judgment rendered by the learned single Judge in First Appeal No. 214 of 1977 dismissing the suit and the appeal arising from it as having abated under S. 4 (4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, "the Act") is assailed in this appeal.

( 2 ) THE core question that falls for determination in this case is whether the suit as laid abates under the aforementioned provision of the Act. To put it differently, the question is whether the reliefs sought in the suit are available to be granted by the authorities under the Act. If the question is answered in the affirmative, then it is to be held that the suit and the appeal arising from it abates if on the other hand, the question is answered in the negative, then the appeal is to be disposed of on merit.

( 3 ) THE appellants filed O. S. No. 19/74 in the court of the Subordinate Judge, Puri against the respondents seeking the following reliefs : to cancel the sale deeds executed by defendant No. 1 - Balabhadra Sahu (since deleted from the appeal) in favour of defendants 2 to 6; for partition of the properties described in schedule 'ka' of the plaint and other consequential reliefs. Plaintiffs 1 and 2 are sons of defendant No. 1 and plaintiff No. 3 is wife of defendant No. 1. The other defendants are purchasers of portions of suit property from defendant No. 1. The case of the plaintiffs was that the suit 'ka' schedule properties are ancestral properties of the parties; defendant No. 1 who is addicted to liquor and other intoxicants executed sale deeds in favour of the defendants 4 to 6 in respect of portions of ancestral properties without receiving any consideration and without any necessity, and the sale deeds executed without "consideration and without family necessity are invalid and void. The plaintiffs having learnt about illegal transfer of their ancestral properties filed the suit seeking the reliefs noted earlier.

( 4 ) DEFENDANT No. 1 did not contest the suit. Defendants 2 to 6 in their written statement admitted that the suit properties are ancestral properties of the parties, but denied the other material allegations in the plaint. They denied that the sale deeds in question are vitiated by fraud and coercion practised by the purchasers or that the transfers were made without consideration or without family necessity. According to the defendant No. 1 as Karta/manager of the family sold the properties in Kha schedule for family maintenance.

( 5 ) ON the pleadings of the parties, the trial court framed five issues of which issue No. 4 is whether the alienation by defendant No. 1 in favour of defendant No. 2 to defendant No. 6 in Respect of 'kha' schedule properties is legal, valid and for benefit of the minors or for legal necessities of the family of the plaintiffs and defendant No. 1. The learned trial Judge on assessing the evidence on record held that the transfers are void having been transacted without legal necessity except the one covered under Ext. 8 and that none of the alienations would bind the family. The suit was decreed preliminarily for partition of the suit properties as described in schedule Ka, Kha and Ga excluding the land covered under Ext. 8. The contesting defendants filed first appeal against the decision of the trial court.

( 6 ) AT the hearing of the case it was contended on behalf of the appellants that the consolidation scheme having been enforced in the area in which the suit lands are situated and the relief of partition being available to be granted by authorities under the Act the suit and the appeal arising from it are to abate under Section 4 (4) read with S. 51 of the Act and order to that effect should be passed. On merits of the case, the finding of the trial court that the sale deeds executed by defendant No. 1 in favour of defendants 2 to 6 were without legal necessity and therefore invalid was assailed. The learned single Judge accepted