The main legal point established in the judgment is the jurisdiction of consolidation authorities to adjudicate on the validity of alienation and the maintainability of suits for injunction dependent on title and possession.

JUDGMENT :

C.R. Dash, J. - This Writ Petition is directed against the order dated 31.03.2010 passed by learned Civil Judge (Sr. Division), Kendrapara in Civil Suit No. 75 of 2005 allowing an application filed by defendant No. 1 u/s 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 ('Consolidation Act' for short). Facts relevant for disposal of this writ petition are as follows :-

Ratnamanjari Swain, petitioner in this writ petition as the plaintiff filed Civil Suit No. 75 of 2005 in the Court of learned Civil Judge (Sr. Division), Kendrapara against the present opposite party No. 1 - Ritanjali Pattnaik (defendant No. 1 in the Court below) impleading also other co-sharers namely opposite party nos.2 to 5 and another co-sharer namely Banambar Swain (not a party to this writ petition), praying inter alia for setting aside the Sale Deed bearing No. 150, dated 02.02.2005 executed by Defendant Nos.2 and 3 (present opposite party No. 2 Nishamani Swain and aforesaid Banambar Swain) being illegal, void and not acted upon, for demolition of the constructions raised on the northern side of the suit land and for the relief of permanent injunction against defendant No. 1.

2. Plaintiff's case, in short, is that the plaintiff and defendant nos.2 to 6 are successors-in-interest of Late Ram Swain and Laxmidhar Swain. The suit land in the Sabik Khata was recorded jointly in the names of the cosharers. In the Major Settlement, Sabik Plot No. 1076 was recorded as Hal Plot No. 1087/1667 under Hal Khata No. 390 in Mouza Talagaon jointly in the names of the plaintiff and defendant nos.2 to 6. On initiation of the Consolidation Proceeding, the suit plot has again been recorded jointly in the names of the plaintiff and defendant nos.2 to 6. Plaintiff and defendant nos.2 to 6 being in joint possession of the suit land, are enjoying the same by exercising their joint right and title. Defendant nos.2 and 3, without any consultation with and consent of the plaintiff and defendant nos.4 to 6, executed Sale Deed No. 150, dated 02.02.2005 in favour of defendant No. 1 (opp. party No. 1 in this writ petition) in excess to their share, though they had no locus-standi to execute the impugned sale deed. Defendant No. 1 (present opp. Party No. 1) being a stranger to the family, may encroach upon privacy of the joint enjoyment of the suit land by the plaintiff and defendant nos.4 to 6. Therefore the suit for the reliefs, as delineated supra.

3. Defendant No. 1 filed written statement denying the plaint averments and took the plea of previous partition among the parties though the record is joint. In course of hearing of the suit, defendant No. 1 filed a petition u/s 4 (4) of the Consolidation Act. The plaintiff (present petitioner) resisted the petition on the following grounds :-

(i) The suit land being homestead land, does not come under the purview of Consolidation Act;

(ii) The Consolidation Authorities having no jurisdiction to issue interim relief like injunction against any person or to direct re-purchase of the suit land by the plaintiff, the suit would not abate.

4. Defendant No. 1 (present opp. Party No. 1) on the other hand stressed on the following points :

(i) The Consolidation Operation being still in force in the suit village and there being no Notification for closure of the Consolidation Operation u/s 41(1) of the Consolidation Act, the suit would abate;

(ii) In view of the amendment of the Consolidation Act, homestead land also having come under the purview of the Act, the objection by the plaintiff is misconceived;

(iii) When the relief of injunction, as claimed by the plaintiff, is dependent upon title and possession of the properties, the suit is to abate.

5. Learned Court below, on consideration of the points of law and facts raised by learned counsels for the parties, passed order for abatement of the suit.

6. Learned counsel for the petitioner strenuously submits that in the present case the document in quest