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High Court Of Orissa
R. N. Misra, K. B. Panda And P. K. Mohanti, JJ.
SRINIBAS JENA - Appellant
Versus
JANARDAN JENA - Respondent
First Appeal 33 Of 1968
Decided On : 08/12/1980
PARTITION - FINAL DECREE - ABATEMENT - CONSOLIDATION OF HOLDINGS - EFFECT OF NOTIFICATION - FINAL DECREE PROCEEDING - NOT A SUIT OR PROCEEDING FOR DECLARATION OF RIGHT OR INTEREST IN LAND - DOES NOT ABATE UNDER SECTION 4 (4) OF THE ORISSA CONSOLIDATION OF HOLDINGS AND PREVENTION OF FRAGMENTATION OF LAND ACT, 1972.
Fact of the Case:
An appeal was filed against a final decree for partition. During the pendency of the appeal, the lands in dispute came under the consolidation operations on the publication of a notification issued under Subsection (1) of Section 3 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the 'act' ). The appellants filed a petition for an order of abatement of the appeal under Section 4 (4) of the Act. The prayer was resisted by the respondents on the grounds that a final decree proceeding is not covered under Section 4 (4) of the Act and that the rights of the parties having already been declared by a preliminary decree there could be no abatement of the suit.
Finding of the Court:
The Court held that a final decree proceeding cannot be considered to be either a suit or a proceeding of the nature contemplated by Section 4 (4) of the Act. The language used by the legislature is "a suit or proceeding for declaration of right or interest in land." The use of the preposition "for" is significant. It signifies that declaration of right or interest in land must be directly involved in the suit or proceeding. Declaration of right or interest in land is not directly involved in a final decree proceeding.
Issues: Whether a final decree proceeding can abate under Section 4 (4) of the Act upon publication of the notification issued under Section 3 (1) of the Act.
Ratio Decidendi: The Court held that a final decree proceeding does not originate in itself, but follows a preliminary decree passed in a suit. The final decree proceedings start only after determination of the rights and interests of the parties in relation to land. Under the provisions of Order 20, Rule 18, C. P. C. the preliminary decree declares the rights of the parties interested in the property. The final decree proceeding is to enforce what has already been decided, which may even mean that it excludes declaration of right and interest in land which has already been declared by the preliminary decree. The final decree proceedings only relate to matters which are provided in the preliminary decree as to physical division or as to an account for mesne profits but do not relate to the decision of any substantive rights of the parties as to title to properties.
Final Decision: The Court held that the appeal cannot abate under Section 4 (4) of the Act and shall go back to the Division Bench for decision on merits.
P. K. MOHANTI, J.
( 1 ) THIS appeal is directed against a final decree for partition. During the pendency of the appeal, the lands in dispute came under the consolidation operations on the publication of a notification issued under Subsection (1) of Section 3 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act. 1972 (hereinafter referred to as the 'act' ). On 19-10-79, the appellants filed a petition for an order of abatement of the appeal under Section 4 (4) of the Act. The prayer was resisted by the respondents on the grounds that a final decree proceeding is not covered under Section 4 (4) of the Act and that the rights of the parties having already been declared by a preliminary decree there could be no abatement of the suit. A Division Bench of this Court referred the matter to a Full Bench for decision on the question of abatement.
( 2 ) THE main question for consideration is whether an appeal against a final decree can abate under Section 4 (4) of the Act upon publication of the notification issued under Section 3 (1) of the Act.
( 3 ) THE relevant provisions of Sec. 4 of the Act are reproduced below for ready reference:
"sec. 4. Effect of notification. Upon the publication of the notification issued under Sub-section (1) of Section 3 in the Official Gazette, the consequences as hereinafter set forth shall subject to the provisions of this Act, ensue in the consolidation area till the publication of notification under Section 41 or sub-section (1) of Section 5 as the case may be- (1) to (3 ). . . . . . . . . . . . . . . (4) every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceeding 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: provided that no such order shall be passed without giving the parties concerned an opportunity of being heard; 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,- (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 (b) all such suits and proceedings as are referred to in clause (3) or Clause (4) which relate to lands situate in such area or 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. 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 proceedings, before the proper Consolidation Authority in accordance with the provisions of this Act or the Rules made there under. "
( 4 ) IN view of the above provisions, the following conditions must be satisfied for a suit or proceeding to abate:
(1) it must be for declaration of any right or interest in any land situate within the consolidation area. (2) it must be for declaration of right or interest in land in regard to which proceedings could be or ought to be started under the Act. (3) it must be pending on the date of publication of the notification under Section 3 (1) of the Act be are any Civil Court, whether of the first instance or appeal, reference or revision. (4) the civil Court before which the suit or proceeding is pending must pass an order of abatement after giving the parties an opportunity of being heard.
( 5 ) NOW the question arises whether a final decree proceeding can be characterised as a "suit or proceeding for declaration of right or interest in any land" and thus falls within the purview of Section 4 (4) of the Act. In our opinion, a final decree proceeding cannot be considered to be either
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