Judgment:
P.K. Tripathy, J.
1. Five of the defendants of Title Suit No. 135 of 1997-I of the Court of Civil Judge (Senior Division), Bhadrak have preferred this revision under Section 115 of the Code of Civil Procedure, 1908 (in short 'the Code') challenging the order passed on 4.8.1999 in rejecting the petition in which petitioners had prayed to record the order of abatement of the suit in view of the provisions in the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short 'the Act').
2. There is no dispute by the parties to the pleadings from the plaint noted in the impugned order. It appears from that as well as the certified copy of the plaint drafted in vernacular that plaintiffs have filed the suit for partition claiming 1/4th share from certain portions of the suit scheduled land and in that context they sought to get declaration that sale deeds executed on 5.5.71 and 8.7.61 to be void and also they have claimed for the relief under Section 4 of the Partition Act. After taking note of the citations relied on by the parties but accepting contention of the petitioner relating to the consolidation operation having gone to the stage as provided under Section 15 of the Act, learned Civil Judge, following the ratio in the case of Somanath Bhataria v. Purnananda Bhataria and Ors., 1991 (I) OLR 445 rejected the petition. That order is under challenge in this civil revision.
3. Mr. Prahallad Kar, learned counsel for the petitioners argued that in view of the ratio in the cases of Gorakh Nath Dube v. Hari Narain Singh and Ors., AIR 1973 SC 2451 and Sukadev Jena v. Padmalochan Dhal, 6.1 (1986) C.L.T. 639, and Bamadev Swain and Anr. v. Sunakar Swain and Anr., 61 (1986) CLT 646, besides the ratio in the case of Gautam Paul v. Debi Rani Paul and Ors., AIR 2001 SC 61, when a document is void, it does not create any right and therefore the Consolidation Authorities while adjudicating the dispute can ignore such void sale deeds because of that prayer to declare the sale deeds as void documents does not prevent ouster of jurisdiction of Civil Court when consolidation operation is in process in the concerned locality and the Consolidation Authority has jurisdiction to adjudicate the dispute in the suit. He also argued that according to the ratio in the case of Gautam Paul (Supra) a suit instituted by a co-sharer does not make him entitled to claim for the relief under Section 4 of the Partition Act. Accordingly, he argued that when the aforesaid two reliefs claimed in the claim are also covered by the above noted decisions, therefore, the aforesaid two reliefs claimed in the suit does not affect an order of abatement inasmuch as the only other relief which is claimed in the suit is for partition and according to the provision in Section 7 of the Act, Consolidation Authorities are competent to decide the same. Learned counsel for the petitioner also referred to the ratio in the case of Prafulla Kumar Behera v. Mangulu Samal, 1990 (I) OLR- 511 in which this Court has held that in a suit for declaration of title and recovery of possession, if that relates to homestead land then the suit shall not abate but it should be kept suspended till the claim of title is adjudicated by the Consolidation Authorities. On that ratio petitioner argues that similarly in the present case, the consolidation authorities should be allowed to determine the question of title i.e., the right to partition and therefore the suit should abate.
On the other hand, Mr. Ashok Mukherji, learned Senior Counsel arguing for the plaintiff-opposite party argued that when the voidability of the sale deeds is to be considered and declared by an authority then it is the Civil Court which has such authority and under such circumstance the suit is not to abate on the ground that void document shall be excluded by the consolidation authority. In support of that argument he relied on the case of Ashok Kumar Samal v. Kunja Bihari Mallik and Anr., 1987 (II) OLR 108. He also refers to a Division Bench decision of this Court in the case of Biswanath Jena v. Ramesh Chandra Jena and Ors., 74 (1992) CLT 214. In that decision Hon'ble Shri A. Pasayat, J (as his Lordship then was) speaking for the Court has been pleased to propound that 'a suit in terms of Section 4(4) of the Partition Act does not abate.
'Learned counsel for the plaintiff-opposite party also argued that the impugned order indicates that the consolidation proceeding for the suit locality has already proceeded to Section 15 stage and under such circumstance, an order of abatement, should not be recorded. In support of that contention, he relied on the case of Somanath Bhataria v. Punananda Bhataria and Ors., 1991 (1) OLR 445.
4. When the fact noted in the impugned order indicates that the consolidation proceeding had already gone to the stage of Section 15 of the Act, it is not necessary for this Court to enter into the legal controversy as argued by the parties inasmuch as the ratio in the case of Somanath Bhataria (supra) is sufficient to dispose of the Civil Revision. In that case, this Court has held that:
' ... Before deciding as to whether a suit shall abate under Section 4(4) of the Act, it is also necessary to find out as to which stage the consolidation operation has reached. If a relief is not available to be granted to a party by the consolidation authorities because of the bar spelt out in Sections 14 and 15 of the Act, the suit cannot be held to be abated. This is so because even though the officer or authority was empowered with respect to the matter in a pending suit the exercise of such power has been prohibited after a particular stage of the consolidation operation and abatement of suit in such circumstances would lead to an absurdity in the sense that the relief prayed for in the suit would not be available to the party in any forum under the Consolidation Act. ....'
Under the given facts and circumstances and the above quoted ratio, this Court finds no illegality in the impugned order to interfere with the same. Accordingly, the Civil Revision is dismissed.