A suit for declaration of right, title and interest, permanent injunction, and eviction of the defendants from the suit property does not abate under Section 51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, as the prayers sought for in the suit cannot be adjudicated by the Consolidation Authorities under the Act.

JUDGMENT :

Dipak Misra, J.

1.Plaintiffs are in appeal against the affirming judgment and decree of the learned District Judge, Cuttack, in a suit for declaration of right, title and interest, permanent injunction, and for eviction of the defendants from the 'B' Schedule property and also for grant of damages.

After stating the pleadings and the evidence, the Hon'ble Court found :

6. Both the Courts below have concurrently found that the plaintiffs' suit is devoid of merit as Sanei did not possess the land as a licensee, but as a lessee; the plaintiffs' suit is vague and there is actually no cause of action for filing of such a suit. The Courts below have also recorded a finding that the defendants are in possession of the suit land since 1930 and they have the right over the entire C.S. Plot No. 148.

7. Before I proceed to address myself with regard to the merits of the second appeal, it is appropriate to deal with the contention of Shri B. Routray,the learned Counsel for the plaintiffs-appellant, who has contended that the suit should abate in view of the notification u/s 3 of the Orissa Consolidation of Holdings and Prevention of Fragmantation of Land Act, 1972 (hereinafter referred to as 'the Act'). To substantiate this aspect, he has filed an application under Order 41, Rule 27 read with Section 151 of the Code of Civil Procedure. These documents are : the notification dated 15-7-1978, order passed in Remand Appeal Case No. 5/86 by the Deputy Director, Consotitution Range No. 4, Cuttack, copy of the the report submitted by the Amin along with the petition filed by the appellants and the copy of the judgment passed by the Consolidation Officer in Remand Appeal Case No.3/88. The appellate authority under the Act had taken into consideration the decision of this Court in relation to the home-stead Iand and has observed that the consolidation authorities had no jurisdiction to decide in respect of the homestead land. So observing, he has drooped the case. The documents have been filed only to indicate th3t ths suit would abate because of the notification and the various orders passed by the consolidation authorities. The effort of the learned Counsel for the respondents is that the suit would not abate and for that reason he has also filed the judgment of the Deouty Director. Though the petitions by both sides have been styled to be under Order 41, Rule 27, they, in effect, have nothing to do with the merits of the Second Appeal and at all essential for the just and clear decision of appeal. In fact, they are only relevant for the purpose of deciding the controversy relating to abatement of the suit. I do not admit them as additional evidence for the purpose of decision in appeal, but I take them into consideration as documents brought on record for deciding whether the suit would abate or not.

8. Sri B. Routray, the learned counsel for the appellants has strenuously urged before this Court that the suit would abate. Shri B.C. Swain, the learned counsel for the respondents has emphatically submitted that the question of abatement of the suit does not arise in the present case. He has also brought to my notice that doting the pendency of the suit before the trial Court, the'-point was raised with regard to the abatement of the suit, but the same was rejected and parties thereafter have participated in the trial.

9. The main thrust of submission of Shri Routray is that the suit was filed in the year 1982 whereas the Notification under Sub-Section (1) of Section 3 of the Act had come into existence on 15-7-1978 and; therefore, the suit could not have been entertained by the Civil Court. To substantiate this submission of his, he has referred to Section 51 of the Act. He has also contended that recently the plaintiffs have filed a revision before the Consolidation Authorities challenging the order passed by the Deputy Director dropping the proceeding and therefore, the suit has to abate. He has also convassed that the reliefs sought for