A suit for permanent injunction pending in the civil Court does not abate under S. 4 (4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (Orissa Act 21 of 1972) on the issue of a notification under S. 3 (1) of the Act.

J. K. MOHANTY, J.

( 1 ) THE question that arises for consideration in these revisions is whether a suit for permanent injunction restraining the defendants from interfering with the plaintiffs' possession over the disputed lands will abate under the provisions of S. 4 (4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (Orissa Act 21 of 1972) (hereinafter referred to as the 'act' ). One of these cases (C. R. No. 88/80) was placed before a learned single Judge of this Court Mr. Justice P. K. Mohanti (as he then was) and his Lordship was pleased to refer the case to a Division Bench as the reasoning given by a Division Bench of this Court in a case reported in AIR 1982 Orissa 48 : (1982) 54 Cut LT 143 (Rahas Bewa v. Kanduri Charan Sutar) was not accepted. Thereafter the case came up before a Division Bench consisting of Mr. Justice P. K. Mohanti (as he then was) and Hon'ble Mr. Justice D. P. Mohapatra and their Lordships thought it proper to refer the same to a Full Bench for consideration of the above point of law. Accordingly the matter was placed before the Hon'ble the Chief Justice for constitution of a Full Bench and as common question of law arose in both the revisions, these were heard analogously.

( 2 ) PETITIONER (in C. R. No. 88/80) brought Title Suit No. 134 of 1978 in the court of the Munsif, Kendrapara for a declaration of title to the suit lands and for a permanent injunction restraining the defendant from interfering with his peaceful possession. The suit lands having come under the consolidation operation the defendant filed a petition on 22-12-1976 for an order of abatement of the suit under S. 4 (4) of the Act. While the petition for abatement of the suit was pending, the plaintiff amended the plaint by deleting the prayer for declaration of title and contended that the suit being one for permanent injunction only it should not abate. The learned Munsif by his order D/-20-12-79 having passed an order that the suit would abate under S. 4 (4) of the Act, the plaintiff has come up in revision to this Court. The facts of the case in C. R. No. 191/79 are almost identical.

( 3 ) THE question of law that arises for consideration as mentioned above was before a Division Bench of this Court earlier consisting of Hon'ble Mr. Justice R. N. Misra, C. J. and Hon'ble Mr. Justice R. C. Patnaik in a case reported in AIR 1982 Orissa 48 : (1982) 54 Cut LT 143 (supra ). In that case the plaintiff's suit was for permanent injunction restraining the defendants from interfering with her possession and enjoyment of the property. The trial Court has declared that the suit would partly abate under the Act. Therefore the plaintiff filed the Civil Revision challenging the order of the trial Court. The revision application came up before a single Judge and it was directed to be placed before a Division Bench as some single Judge decisions (to which reference has been made in the decision) took contradictory views on the point in issue. The Division Bench observed :"the relief of injunction, as already pointed out, was an existing remedy at common law. No provision has been made in the Act empowering the authorities to grant injunction. Can the existing remedy at common law for which there is a pending action, in the circumstances, be held to have abated? undoubtedly, even to grant injunction it would be necessary for the Court to adjudicate upon the question of title or possession. There would be many suits where who the rightful owner is has to be ascertained even when the relief is one of permanent injunction simpliciter. Invariably, the question of possession in praesenti will have to be taken into account. There is force in the submission of counsel for opposite parties that possession is an 'interest' in land. A suit for declaration of right or interest including possession would, therefore, abate, as required by S. 4 (4) of the Act. The main plank in the stand taken by counsel for the def