Orissa High Court

Dhobei Behera (Dead) & Others vs Babaji Behera on 25 February, 2025

                            ORISSA HIGH COURT : CUTTACK

                               S.A. No.150 of 1992

            In the matter of an appeal under Section 100 C.P.C, 1908.

                                        ***

Dhobei Behera (dead) & Others ... Appellants.

-VERSUS-

               Babaji Behera                        ...           Respondent.



       Counsel appeared for the parties:

       For the Appellants             : Mr. R.K. Mohanty, Sr. Advocate
                                        Along with Ms. S. Mohanty, Adv.
       For the Respondent             : Mr. S. Mohanta, Advocate
                                        on behalf of Mr. B. Pattnaik, Adv.

       P R E S E N T:
                                  HONOURABLE
                      MR. JUSTICE ANANDA CHANDRA BEHERA

Date of Hearing : 20.01.2025 :: Date of Judgment : 25.02.2025

J UDGMENT

ANANDA CHANDRA BEHERA, J.--

1. This 2nd Appeal has been preferred against the

confirming Judgment.

2. The appellant in this 2nd Appeal i.e. Dhobei Behera was

the defendant before the Trial Court in the suit vide T.S.

No.270 of 1980 and appellant before the 1st Appellate Court in

the First Appeal vide T.A. No.14 of 1989.

The respondent in this 2nd Appeal along with another i.e.

Malli Bewa were the plaintiffs before the Trial Court in the suit

vide T.S. No.270 of 1980 and respondents before the First

Appellate Court in the 1st Appeal vide T.A. No.14 of 1989.

3. The suit of the plaintiffs (respondent in this 2nd Appeal

along with Malli Bewa) before the Trial Court vide T.S. No.270

of 1980 was a suit for partition and declaration.

4. As per the schedule of the plaint, the suit properties are

Hal plot No.1409 Ac.0.11 decimals, Hal Plot No.1410 Ac.0.198

decimals under Hal Khata No.224 and Hal Plot No.1450

Ac.0.65 decimals under Hal Khata No.217 in Mouza-Mahana

under Salipur Police Station in the district of Cuttack

described in Schedule 'A' which corresponds to Sabik Plot

No.1412 under Sabik Khata No.190.

The suit properties described in Schedule 'B' i.e. 20 links

X 20 links in Hal Plot No.1408 corresponds to a part of Sabik

Plot No.1412 described in schedule 'A'.

According to the plaintiffs, they (plaintiffs) are the

successors of Banamali Behera. The defendant (appellant in

this 2nd Appeal) is the successor of Sobhini.

Banamali and Sobhini had half share each in Sabik Plot

No.1412 Ac.0.243 decimals under Sabik Khata No.190. That

Sabik Plot No.1412 corresponds to Hal Plot No.1450,1410 and

1409 of the year 1970. The Hal plot No.1450 stands recorded

under Hal Khata No.217 in favour of the plaintiffs. The Hal

Plot No.1410 and 1409 stands recorded under Hal Khata

No.224 in favour of the defendant. The defendant (Dhobei

Behera) had managed to record Hal Plot No.1410 Ac.0.198

and Hal Plot No.1409 Ac.0.11 under Hal Khata No.224 in his

favour exclusively in the Hal Settlement of the year 1970 and

whereas, only the suit Hal Plot No.1450 for Ac.0.65 decimals

under Hal Khata No.217 has been recorded in favour of the

plaintiffs. The above recordings of Hal Plot No.1409, 1410 in

favour of the defendant is erroneous. Because, they (plaintiffs)

are entitled for recording of half of Ac.0.243 decimals from

Sabik Plot No.1412 in the Hal Settlement in their favour, but,

instead of which, the defendant has managed to record only

Ac.0.65 decimals instead of half of Ac.0.243 decimals in

favour of the plaintiffs in the Hal Settlement. The above wrong

recording of the suit properties in the Hal Settlement was not

within the knowledge of the plaintiffs. The defendant is not

entitled under law to record Ac.0.209 decimals of land in total

out of Ac.0.243 decimals of land from Sabik Plot No.1412 in

his favour in the Hal Settlement of the year 1970.

Hal Plot No.1408 of the defendant described in Schedule

'B' is the adjacent to the Hal plot No.1410 and 1450. During

Hal settlement operation, very cunningly and illegally, the

defendant has managed to include 20 Links X 20 Links from

Hal Settlement plot No.1450 into the Hal Map of plot No.1408.

The said 20 Links X 20 Links of Hal Plot No.1408 is a part of

Sabik plot No.1412, for which, the defendant has no title and

possession on the same.

When, on the basis of the above illegal recordings in the

Hal R.o.R and Map, the defendant created disturbance in the

possession of the plaintiffs over the suit properties, a

proceeding under Section 144 of the Cr.P.C. was initiated

between them.

The further case of the plaintiffs is that, Sabik Plot

No.1412 Ac.0.243 decimals under Sabik Khata No.190, which

corresponds to Hal Plot No.1450,1409 and 1410 has not been

partitioned between them (plaintiffs and the defendant) in any

manner till yet, through any metes and bounds partition,

wherein the plaintiffs have half share and the defendant has

half share. As such, they (plaintiffs and defendant) both are

entitled for half share each from Sabik Plot No.1412 Ac.0.243

decimals. When, the plaintiffs approached the defendant for

partition of their half share from the suit Hal Plot Nos.1450,

1409 and 1410 corresponding to Sabik Plot No.1412, to

which, the defendant did not agree. For which, without getting

any way, the plaintiffs approached the Civil Court by filing the

suit vide T.S. No.270 of 1980 against the defendant praying

for partition of their half share from the Schedule 'A'

properties vide Hal Plot No.1450, 1409 & 1410 under Hal

Khata Nos.217 & 224 and to declare that, the schedule 'B'

land is a part of sabik Plot No.1412.

5. Having been noticed from the Trial Court in the suit vide

T.S. No.270 of 1980, the defendant contested the same by

filing his written statement denying the averments made by

the plaintiffs in their plaint taking his stands that, the suit

properties described in Schedule 'A' of the plaint along with

other properties were partitioned amicably between the

plaintiffs, defendant and others much prior to the Hal R.o.R of

the year, 1970 and on the basis of such partition, they

(parties) have been possessing the suit properties separately.

For which, the question of partition of Schedule 'A' properties

again does not arise. The suit of the plaintiffs suffers from res

judicata and estoppel. Because, on the basis of the partition

between them (parties) and others, the suit properties have

already been recorded separately under separate Khatas by

the Consolidation Authorities in the last consolidation

operation after proper adjudication of all the disputes between

them (parties) in the same. For which, the present suit of the

plaintiffs for partition after separate recordings by the

consolidation authorities in the consolidation operation as per

the decisions of the consolidation authorities is not

maintainable under law.

As per previous partition, after Sabik Settlement of the

year 1929, Hal Plot No.1450 under Hal Khata No.217 along

with other plots were recorded in favour of the predecessor of

the plaintiffs and the Hal Plot No.1409 and 1410 under Hal

Khata No.224 along with other plots were recorded in favour

of the defendant in the Hal Settlement of the year, 1970.

Therefore, as per the decision of the consolidation

authorities prior to the filing of the suit, the suit properties

have also been recorded separately in the name of the

plaintiffs and defendant under separate consolidation Khatas.

For which, after the decision of the Consolidation Authorities,

the question of partition of the suit properties again or any

declaration in respect of the same contrary to the decision of

the consolidation authorities does not arise. Therefore, the

suit of the plaintiffs is liable to be dismissed.

6. Basing upon the aforesaid pleadings and matters in

controversies between the parties, altogether 10 numbers of

issues were framed by the Trial Court in the suit vide T.S.

No.270 of 1980 and the said issues are:

ISSUES

1. Is the suit barred for non-joinder of necessary parties?

2. Has their previous partition as alleged been effected?

3. Is the Genealogy furnished by the plaintiff is true and is not contradictory to the Genealogy given by the defendant?

4. Is the suit maintainable in present form?

5. Are the entries made in the Record-of-Rights binding on the parties?

6. Is the compromise between the parties i.e. Sobhani and Banamali branch finding on the party has alleged in the written statement?

7. Is the suit bad by resjudicata or estoppel due to the finding of the Panch regarding share of the parties, or the entry made by the Consolidation authority?

8. Is the suit as laid maintainable?

9. To what relief or reliefs the plaintiffs are entitled?

10. Whether the Order of the Consolidation authorities operates as resjudicata?

7. In order to substantiate the aforesaid reliefs sought for

by the plaintiffs against the defendant, the plaintiffs examined

two witnesses from their side including the plaintiff No.1

(Babaji Behera) as P.W.1 and relied upon the documents vide

Exts.1 to 5.

On the contrary, in order to nullify/defeat the suit of the

plaintiffs, the defendant examined 4 witnesses on his behalf

including him as D.W.3 and relied upon the documents vide

Ext.A to N.

8. After conclusion of hearing and on perusal of the

materials, documents and evidence available in the record, the

Trial Court answered all the issues in favour of the plaintiffs

and against the defendant and basing upon the findings and

observations made by the Trial Court in the issues in favour of

the plaintiffs and against the defendant, the trial court

decreed the suit of the plaintiffs for partition and declaration

against the defendant as per its Judgment and Decree dated

28.02.1989 and 10.03.1989 respectively and declared that,

the Schedule 'B' properties are the part and parcel of Sabik

Plot No.1412 described in Schedule 'A' of the plaint. The

plaintiffs and the defendant's side are entitled to get 50%

share each from C.S. Plot No.1412 and accordingly, decreed

the suit of the plaintiffs preliminarily for partition of their 50%

share from the Sabik Plot No.1412 described in Schedule 'A'

assigning the reasons that, "the schedule „B‟ land is a part of

Sabik Plot No.1412. The decision given by the consolidation

authorities for recording of more properties than the half share of the

plaintiffs from the Sabik Plot No.1412 in favour of the defendant

during consolidation operation shall not act as an estoppel or bar

against the plaintiffs from claiming their half share on the same and

on the basis of the joint recording in Sabik settlement under Sabik

Khata No.190 plot No.1412 Ac.0.243 decimals, the plaintiffs are

entitled for partition of their half share from the same and the

recording of the suit properties in the Hal Settlement as well as in

the consolidation are illegal and erroneous."

9. On being dissatisfied with the aforesaid Judgment and

Decree passed by the trial court in T.S. No.270 of 1980 in

favour of the plaintiffs and against the defendant, he

(defendant) challenged the same by preferring the 1st Appeal

vide T.A. No.14 of 1989 being the appellant against the

plaintiffs arraying them (plaintiffs) as respondents.

After hearing from both the sides, the First Appellate

Court dismissed that 1st Appeal vide T.A. No.14 of 1989 of the

defendant concurring/accepting the findings and observations

made by the trial court in favour of the plaintiffs as per its

Judgment and Decree dated 08.04.1992 and 20.04.1992

respectively.

10. On being aggrieved with the said Judgment and Decree

of the dismissal of the 1st Appeal of the defendant, he

(defendant) challenged the same by preferring this 2nd Appeal

being the appellant only against the plaintiff No.1 arraying

him (plaintiff No.1) as respondent, because, after the

Judgment and Decree of the 1st Appeal, the plaintiff No.2

expired leaving behind the plaintiff No.1 as her successor.

When during the pendency of the 2nd Appeal, the

appellant/defendant expired, then, in his place, his legal heirs

have been substituted.

11. This 2nd Appeal was admitted on formulation of the

following substantial questions of law i.e.

I. Whether the suit for partition is maintainable without including other joint family properties, when the presumption of law is in favour of jointness and particularly when the defendant-appellant makes out a case of total previous partition?

II. Whether a suit for partition of a particular item of property which was admittedly of the joint family at one point of time, but is claimed to be joint vis-à-vis two members, because, of a subsequent happening is maintainable in the absence of all members of the joint family, giving them opportunity to contest such subsequent happening?

III. Whether the present suit for partition is barred under the provisions of Consolidation Act and the principles of constructive res judicata?

12. I have already heard from the learned counsels for the

appellant (defendant) and the learned counsel for the

respondent (plaintiff No.1).

During the course of hearing of the 2nd Appeal, in order

to assail the Judgments and Decrees of the Trial Court & 1st

Appellate Court, the learned counsel for the appellant

(defendant) contended that, the suit of the plaintiffs vide T.S.

No.270 of 1980 is not maintainable under law due to separate

recordings of the suit properties in the last major settlement of

the year 1970 as well as in the last consolidation on the basis

of the final Order dated 27.03.1980 passed in Objection Case

No.240 of 1980 by the Consolidation Officer as per Ext.H.

On the contrary, in support of the impugned Judgments

and Decrees, the learned counsel for the respondent (plaintiff

No.1) relied upon the following decisions:

Purna Chandra Sahu & Others vs. Gangadhar Sahu

reported in 63 (1987) CLT 542, Somnath Bhataria Vs.

Punananda Bhataria & Others reported in 72 (1991)

C.L.T. 316, Shankarrao Dajisaheb Shinde (since

deceased) by heirs Vs. Vithalrao Ganpatrao Shinde and

Others reported in AIR 1989 SC 879 and Bharosilal and

Others Vs. Mst. Shiladevi reported in AIR 1989 (Madhya

Pradesh) 122 and contended that, the question of abatement

of the present suit filed by the plaintiffs as per Section 4 (4) of

the OCH & PFL Act, 1972 does not arise, as there was no

specific order for the same and the decision of the

consolidation authorities in objection Case No.240 of 1980 as

per Ext.H shall not operate as a bar or resjudicata for the

adjudication of the present suit for partition and declaration

between the parties in respect of the suit properties.

13. When the above 3 formulated substantial questions of

law are interlinked having ample nexus with each other

according to the pleadings and evidence of the parties as well

as the findings and observations made by the Trial Court and

First Appellate Court in their respective Judgments and

Decrees, then, all the above 3 formulated substantial

questions of law are taken up together analogously for their

discussions hereunder:

It is the undisputed case of the parties that, Sabik R.o.R.

under Sabik Khata No.190 containing several plots including

Sabik Plot No.1412 (Ext.'A') was published in the year 1929

jointly in the names of the predecessor of the plaintiffs and

predecessor of the defendant along with their other co-

sharers, but, the Hal R.o.R under Hal Khata No.217 plot

No.1450 along with other plots was published in the year

1970 exclusively in the name of the predecessor of the

plaintiffs i.e. Dhadi Behera. Likewise, Hal R.o.R under Hal

Khata No.224 containing suit Plot No.1409 and 1410 along

with other plots was exclusively published in the name of the

defendant.

Accordingly, there was separate recording of the suit

properties after sabik settlement of the year 1929 in the name

of the parties during Hal settlement of the year 1970.

14. It is also the undisputed case of the parties that, an

objection case vide Objection Case No.240 of 1980 as per

Ext.H was adjudicated by the Consolidation Officer during

consolidation operation in respect of the suit properties and

the final Order of that Objection Case was passed by the

Consolidation Officer B. Das on 27.03.1980 as per Ext.H.

Though, the said document vide Ext.H is clearly and

unambiguously going to show that, the said objection case

No.240 of 1980 was decided by the consolidation officer on

contest as per Order dated 27.03.1980 in respect of the suit

properties, but the learned Trial Court as well as 1st Appellate

Court both have held erroneously that, the said order dated

27.03.1980 (Ext.H) was passed by the Assistant Consolidation

Officer and also further held erroneously that, the Assistant

Consolidation Officer had no jurisdiction to decide the said

contested objection case No.240 of 1980 between the parties.

In fact, the order dated 27.03.1980 (Ext.H) has been

passed by the Consolidation Officer, but not by the Assistant

Consolidation Officer.

Because, the document vide Ext.H itself is clearly and

unambiguously going to show that, such final order in

objection case No.240 of 1980 has been passed on contest by

B. Das (Consolidation Officer) on dated 27.03.1980.

For which, the findings and observations made by the

Trial Court and 1st Appellate Court that, Order dated

27.03.1980 passed on contest in objection case No.240 of

1980 vide Ext.H in respect of the suit properties is not binding

upon the parties on the ground of passing of the same by the

Assistant Consolidation Officer are not sustainable under law.

Because, in fact, the said order vide Ext.H has been passed as

per law by the consolidation officer on contest, but not by the

Assistant Consolidation Officer.

15. It is the undisputed case of the parties that, after final

decision made by the consolidation officer on dated

27.03.1980 in objection case No.240 of 1980 as per Ext.H

discarding the claim of the plaintiffs (objector) in respect of the

suit properties, they (plaintiffs) have not preferred any appeal

before the statutory appellate authority under the OCH & PFL

Act, 1972 challenging that Order vide Ext.H, but, instead of

which, they (plaintiffs) approached the Civil Court by filing the

suit vide T.S. No.270 of 1980 on dated 24.08.1980 against the

defendant praying for the relief(s) i.e. partition and

declaration.

Now, the question arises, whether the Civil Court has

jurisdiction to sit over the decision of the Consolidation

Authorities passed in contested Objection Case No.240 of

1980 on dated 27.03.1980 as per Ext.H and to take any

decision in the suit contrary to the findings of the

consolidation authorities and whether the consolidation

authorities had power and jurisdiction to record the lands

separately on the basis of previous amicable partition between

the parties and whether an decided order of Consolidation

authorities is assailable in a civil suit without approaching the

higher statutory forums under the OCH & PFL Act, 1972?

16. On this aspect, the propositions of law has already been

clarified in the ratio of the following decisions:

I. In a case between Jayashree Sharma & Another Vs. Chandbai Sharma & Others reported in 2015 (1) CLR 264, the consolidation authorities being competent to either partition or to decide questions of title on the basis of previous partition. II. In a case between Braja Kishore Panda and Others Vs. Damodar Rout and Another reported in 63 (1987) C.L.T. 347 (Para No.4), The Civil Court would have no jurisdiction to sit in Judgment over the decision of the consolidation authorities and declare those as without jurisdiction.

III. In a case between Srinibas Jena & Others Vs. Janardan Jena & Others reported in AIR 1981 (Ori.) 1 (FB), Consolidation Authorities have been vested with exclusive jurisdiction to decide right and interest in land during the consolidation operations and the Civil Court's jurisdiction has been taken away. IV. In a case between Radhika Bewa & Radha Dei and Others Vs. Panchanan Sahu & Others reported in 64 (1987) C.L.T. 523 (Para No.8) (DB), the function is taken over by the consolidation authorities both for the preparation of the R.o.R as also for decision on the question relating to right, title and interest in the land. V. In a case between Ram Balak Singh Vs. State of Bihar &Another reported in 2024 (4) Civ.L.J. 160 (SC) & 2024 INSC 360, Civil

Court cannot ignore, reverse or interfere with order of consolidation authority, which became final.

17. Here in this suit/appeal at hand, when on the basis of

the previous partition, before Hal Settlement of the year 1970,

the suit properties were recorded separately in the names of

the parties in the Hal Settlement of the year 1970 and then,

during consolidation operation by the consolidation

authorities and when the consolidation authorities have power

and jurisdiction to pass an order for recording the suit

properties separately on the basis of the previous partition

and when there is no challenge to the Order passed on dated

27.03.1980 on contest as per Ext.H in objection case No.240

of 1980 before the higher forum under OCH & PFL Act,1972

through an appeal by the plaintiffs, then, due to non-

challenge to the said final order dated 27.03.1980 (Ext.H) as

per law, the same has already been reached in its finality and

when in view of the ratio of the aforesaid decisions of the

Hon'ble Courts and Apex Court, the Civil Court has no

jurisdiction to sit over the decision of the Consolidation

Authorities, then, at this juncture, by applying the principles

of law enunciated by the Hon'ble Courts and Apex Court in

the ratio of the aforesaid decisions to this suit/appeal at

hand, it is held that, the Judgments and Decrees passed by

the Trial Court and 1st Appellate Court are contrary to the

adjudications made by the Consolidation Authorities.

Because, the Civil Court has no power and jurisdiction to

sit over the decision of the Consolidation Authorities and to

declare the R.o.R prepared by the Consolidation Authorities as

illegal or erroneous unless, it is found that, the authorities

under OCH & PFL Act, 1972 have not acted in-conformity

with the fundamental judicial procedures of law or the order

passed by the Consolidation Authorities has been obtained by

practising fraud in view of the guidelines in the Full Bench

decision of this Hon'ble Courts between Gulzar Khan Vs.

Commissioner of Consolidation and Others reported in

1993 (II) OLR 194 (FB).

As per the ratio of the above decisions, an R.o.R

published/prepared by the Consolidation Authorities cannot

be varied/set aside/altered by the Civil Court only for the

reason that, the Consolidation Authorities have prepared the

R.o.R separately deciding the title and interest in respect of

the suit properties.

The R.o.R prepared by the Consolidation Authorities

under Consolidation Khata No.184 in the name of defendant

in respect of the suit properties has not been challenged by

the plaintiffs before the higher statutory authorities under the

OCH & PFL Act, 1972.

On this aspect the propositions of law has already been

clarified in the ratio of the following decisions:

I. In a case between Balaram Bhoi Vs. Babajee Bhoi and Others reported in 2007 (Supp.I) OLR 276, an R.o.R. published by the Consolidation Authorities cannot be varied or set aside by the Civil Court.

II. In a case between Chintamani Kandi (dead) after him, his LRs Para Dei & Others Vs. Arjuna Kandi & Others reported in 2015 (I) CLR 360 (Para No.13), The Consolidation authority having decided appellants' title in the suit land have recorded it in the name of the appellants. The appellants can be said to have established their exclusive title as well as possession over the suit land.

III. In a case between Shree Shree Mangala Thakurani Bije at Paribasudeipur, through its Marfatdars Sri Chaitanya Bhoi and 2 others Vs. Sita Dei (deleted) Arkhit Bhoi & Others reported in 2000 (1) CCC 173 (Ori.), consolidation authority had authority to decide the right, title and interest of contestants in respect of the properties involved in the proceeding.

IV. In a case between Mohan Biswal Vs. Sri Gopinath Dev & Others reported in 2003 (II) OLR 16, consolidation record of right prepared by the Consolidation Authority is not under challenge before any competent authority. The said R.O.R. prepared by the Consolidation Authorities has to be respected until it is found to be illegal or incorrect.

18. When the plaintiffs have not made any prayer in the suit

for setting aside the consolidation R.o.R prepared under

consolidation Khata No.184 in respect of the properties

corresponding to the Suit Hal Plot No.1409 & 1410 in the

name of the defendant and when the said consolidation

R.o.Rin the name of the defendant corresponding to the part

of Sabik Plot No.1412 has not been varied/altered/set aside

as yet as per law, then, at this juncture, by applying the

principles of law enunciated in the ratio of the above

decisions, it is held that, the findings and observations made

by the Trial Court and 1st Appellate Court are not sustainable

under law.