The jurisdiction of the consolidation authorities and the Civil Court, and the powers of the authorities under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, in relation to consolidable and non-consolidable lands.

D. P. MOHAPATRA, J.

( 1 ) THESE two cases have come up before this Full Bench on reference by the respective Division Benches, to decide certain important questions of law relating to the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the 'act' ). On a reading of the reference orders in the two cases, the points arising for decision may be formulated as follows : (A) Whether the consolidation authorities are competent to exercise their jurisdiction in respect of lands, which are not consolidable under the Act. (B) Whether jurisdiction of the Civil Court is ousted in respect of non-consolidable lands during continuance of the consolidation operations in the area. (C) Whether the authorities under Act have power to record forcible possession of a person in the land records while showing another person as the holder of title to the land. The aforementioned points often arise in proceedings before civil courts when attempt is made by defendants to persuade the court to pass order of abatement of suits under Section 4 (4) of the Act. The controversy has engaged the attention of this Court on several occasions earlier. In the case of Abhimanyu Panda v. Digambar Beura, (1976) 42 Cut LT 400 and in the case of Musa Jena v. Panu Charan Naik, AIR 1980 Orissa 183, two learned Judges of this Court had taken the view that a suit filed in the civil court in respect of lands which are non-consolidable under the Act will not abate under Section 4 (4) of the Act and the civil court has jurisdiction to decide the suit despite continuance of consolidation operations in the area. This view did not find favour with the Division Bench of this Court in the case of Jadumani Biswal v. Narayan Chandra Biswal, (1982) 54 Cut LT 584. The Bench took the view that for the purpose of preparation of Land Records the authorities under the Act are to take into account all lands including non-consolidable lands and, therefore, a suit in respect of non-consolidable land will also abate under Section 4 (4) of the Act.

( 2 ) IN Civil Revision No. 169 of 1980, the trial court relying on the aforesaid decision of the Division Bench passed the order under Section 4 (4) of the Act holding that the suit abated. The plaintiff filed the revision petition contending that the disputed property being Bagayat land which was not consolidable under the Act his suit for declaration of title and recovery of possession of the same was maintainable in the civil court and should have been adjudicated upon and decided without being affected by the provisions under Section 4 (4) of the Act. The revision petitioner also raised the further question that the authorities under the Act have no power to record forcible possession of the land being with the defendants in the remarks column of the Land Registers. My learned brother R. C. Patnaik, J. before whom the revision petition came up initially considering the importance of the question whether a suit for any relief which the authorities under the Act have no jurisdiction to grant can be held to have abated simply because consolidation operation is going on in the area, directed the case to be placed before a Division Bench for hearing. Thereafter the case came up before the Division Bench of Justice P. C. Misra and Justice G. B. Patnaik who in their judgement dated 13-11-84 entertained doubt about the correctness of the decision in Jadumani Biswal' s case (AIR 1983 Orissa 114) (supra) and directed the matter to be placed before a larger Bench for decision. That is how the case has come before this Bench.

( 3 ) IN the other case, First Appeal No. 116 of 1973, arising from a suit for partition, an order was passed on 29-7-81 that the suit shall abate in regard to the remaining properties (other than 'ka' schedule properties) excepting plot No. 111 in Khata No. 181/550 covered by 'ga' schedule with an area of 6. 41 decimals and plot No. 272 in khata No. 59 covered by 'gha'