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 under Section 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 in th8 suit should be read harmoniously with the averments in the plaint and the contents of the pleadings have to prevail and not the form. To buttress his submission, he has placed reliance on the decisions rendered in the cases of Sridhar Mohanty v. Kamal Kumar Agarwala, reported in 57(1984) CLT 417, and Duruju Malik alias Duryodhan Swain v. Krupasindhu Swain, reported in 58 (1984) CLT 359 (FB).
10. Sri Swain, in his turn has submitted that the suit of present nature would not abate as the prayers are different. He has also canvassed that as the decree has been passed. rejecting the petition for abatement, it is a valid decree and the question of abatement at this juncture cannot be raised. He has placed reliance on the decisions rendered in cases of Duruju Malik (supra), and Sadhu Charan Des v. Sri Raghava Malik and Ors., reported in 64 (1987) CLT 414, 55(1983) CLT SN 164, and Prabhakar Dixit and Ors. v. Bhagaban Prasad Das, 60(1985) CLT short-note 67.
11. To appreciate the rival contentions in this regard, it is essential to scrutinise the plaint in detail and scan it in proper perspective. I find the plaintiffs after making certain averments in support of their right, title and interest in paragraphs 16 and 17 of the plaint have pleaded as follows:
'16. That as the installation of cabin over Schedule 'B' , blocking the path-way abutting the village road is causing great inconvenience to the plaintiffs and their family members, plaintiffs approached defendant Mo. 1 and said Indramani and after his death, defendant Nos. 2 to 6 several times had requested them to remove the said cabin over their schedule 'B' land, they paid no head to the request of the plaintiffs. Hence the plaintiffs have been obliged to take shelter of this Court.
17. That since putting of cabin is unlawful, the defendant Nos. 2.to 6 or whoever be : found to be liable are bound to pay Rs. 0.50 paise per day as compensation till they remove the same, a portion of the claim having becorhe barred the plaintiffs are confining, their claim to 3 years as indicated in schedule 'D' hereunder. The plaintiffs are also entitled to pendente lite and further compensation at the said rate. The plaintiffs undertake to pay court-fees on the said amount when they levy execution.'
The relevant prayer portion of the plaint reads as follows :
'(a) Let'right, title and interest of plaintiffs be declared in respect of sehedule 'B' property.
(b) Defendants be permanently restrained from disturbing the. possession of the plaintiffs over any portion of the Schedule 'B'.
(c) That the defendants be directed to remove the cabin installed over a portion of schedule 'B'and give the vacant possession of the same within time fixed by the honourable Court and if they fail to do so the same be done through the process of the Court.
(d) That possession of the plaintiff be confirmed In respect of Schedule 'B' property and if found dispossessed possession be given through the process of the Court.
(e) Let a decree for Rs. 547.50 be passed against the defendants as per schedule'C' and pendente lite and future damage @ Rs. 0.50 per day be decreed till removal of the cabin.'
12. In the written statement, these aspects have been disputed. True it is, the plaint has to be read as a whole,' but if the reliefs prayed for are in consonance with the averments of the plaint and the same cannot be granted by the authorities under the Act, the suit cannot be allowed to abate. . Ordinarily, the Civil Court does not -lose jurisdiction to try a suit unless it is shown from the special statute that the forums prescribed hereunder have the power to grant reliefs sought for in the suit. In the instant case, the prayers are manifold and there is no reason to doubt the genuineness of the prayers. The prayers include permanent injunction. eviction of the defendants, recovery of possession and grant of damages. Definitely these prayers cannot be adjudicated by the Consolidation Authorities. May be trie plaintiffs in the present case. for some reason or other, pray for abatement of the suit but their desire cannot over-ride the mandate of law. Considering the plaint as a whole, 1 am of the firm view that the present suit would not abate.
13. I may also observe that there has been no adjudication by the Consolidation Authorities and rightly so. By the time the matter was before them, they had no jurisdiction to do so as the homestead land was not covered under the Consolidation Scheme. They rightly refused to exercise jurisdiction and the Civil Court rightly entertained the same. This Court in the case of Palau Bag and Ors. v. Adhikari Patra and Anr., reported in 77(1994) CLT 533, has held as follows :
'As every suit filed has to be continued and decided unless there is any legal bar or prohibition for the same, the suit filed by the opposite-party-plaintiffs was bound to be continued as the abatement was refused. It was open for the petitioners to have challenged the order and got it set aside. It must however, be held that at time the order was passed dismissing the petition for abatement, the order had been validly passed in view of the Full Bench decision that homestead land do not come within the consolidation area and since that was so, the question whether the substantial question to be decided in the suit pertained to right, title and interest was irrelevant as if the area was not consolidable area, the Civil Court undoubtedly had the jurisdiction to decide the issues. The Amendment Act in 1939 does not purport to set aside the effect of a decree passed unless the land has been subjected to a consolidation proceeding and contrary orders have been passed by the consolidation functionaries....'
In the aforesaid case, reference was made to the Full Bench decision of this Court in the case of Sundarmani Bewa v. Dasarath Parida:AlR 1988 Ori. 166: 65 (1988) CLT 440 (FB).In the case in hand by the time decree was passed, the Civil Court had jurisdiction and the Consolidation Authorities had declined to exercise the jurisdiction by dropping the proceeding. Effort is being made by the plaintiffs after 8 years by filing 'a revision before the Consolidation Commissioner on 28. 6. 1996 to cause abatement of the suit. This is an abortive attempt. Be that as it may, taking into consideration the prayers made in the suit and entertainment of the suit by the Civil' Court in exercise of its jurisdiction, I am of the considered view that the suit would not abate.
14. The learned counsel for the parties while addressing with regard to the controversy of abatement have also advanced their contentions on merits. Shri B. Routray, the learned counsel for the appellants has raised a singular contention that the Courts below have committed gross illegality in coming to the conclusion that the defendants have got .the right of tenancy because of the noting in 1931 settlement.
Shri Swain, the learned counsel for respondent has contended that the Orissa Tenancy Act does not provide for specific mode of creation of tenancy and such tenancy can be created by express agreement between the parties, by implication, by acts and conduct of the parties, by holding over and even by assignment. ! find from the judgments of the Courts below, the case of the plaintiffs that Sanei Ojha, the father-in-law of defendant No. 1 was given permission/ licence to occupy a portion of the suit land has not been accepted. The learned trial Judge had discussed at length in regard to the said stand of the plaintiffs and has arrived at the conclusion that there is no material on record to accept the version of the plaintiff that the defendants or their predecessors-in-interest occupied the iand as licensee. He has accepted the entry in the record-of-rights and has held that the defendants are in possession of A 0.06 decimals of land from 1930. The learned appellate Judge has scrutinised in detail Ext. A and has observed that the occupation of Sanei was on rent basis and the same was fixed at 14 annas. The concept of licence is unknown to Orissa Tenancy Act. Dalzier's report also does not refer to the same. Sri Swam has filed the relevant extract from Dalzier's report where instances of Chandana right, and under-tenants in various degrees have been referred to. It has been mentioned in the said report that under-tenants in various degrees are recorded as 'Darpattadar', Daradar-pattadars, 'Derchandanadar' and 'Daradar-chandandar'. I find the learned lower appellate Judge has accepted the stand of the defendants that Sanel was a tenant on payment of rent. The submission of Sri Routray that Sanei could have been art occupant as enjoined under Section 112 of the Orissa Tenancy Act,; but could not have been recorded as a tenant. The two words reflected in the settlement records, namely, 'Jama' (Rent) and 'Dakhal (possession) have to be read together. Appreciating in proper perspective, it would mean that Sanei had the right of a tenant as has been defined under Section 3 (23) of the Orissa Tenancy Act. I also notice from the appellate Court judgment that there is reference to the orders passed by the Commissioner of Land Records and Settlement, Orissa, for correction of the entries in the record-of-rights of 1973 and the orders have been brought on record as Exts. C and F. . These orders give rise to the presumption of possession in favour of the defendants. The presumption attached to these documents has really not been rebutted by the plaintiffs. The oral evidence adduced by the plaintiffs to substantiate their pleas are really sketchy, scanty and in some respects gloriously vague. The findings of the Courts below are neither perverse nor they have been arrived at in gross violation of fundamental procedure of law. I find the reasons given are cogent and acceptable. The story advanced by the plaintiffs has not been established and the Courts below have correctly disbelieved the same. I do not find any compelling reason to unsettle the said findings. The judgments do stand close scrutiny and, therefore, they are hereby affirmed.
15. In the result, the Second Appeal is dismissed. However, the parties shall bear their respective costs for this appeal.