Judgment:
Dipak Misra, J.
1. Challenge is with regard to the orders passed by the authorities under the Consolidation of Holdings and Prevention of Fragmentation of Land Act, (hereinafter referred to as 'the Act'), at different stages in the present writ application by the petitioner herein.
2. The factual backdrop is that the disputed property measuring Ac. 0. 5 decimals situated on Sabik Plot No. 119 corresponding to L. R. Khata No. 52 Plot No. 119, was the 'Kharida Jamabandi Madha-sstwadhikari i. e. intermediary interest of petitioner's father late Krupasindhu Mohapatra. The said land was settled with the petitioner and his name was recorded in the finally published record-of-rights as per the decision rendered in 0. E. A. Case No. 892 of 1965-66. In the record of right, a note was incorporated to the effect that late Gangadiar Sahoo. husband of opp. party No. 4 has a right of way on the aforesaid land. Challenging the said entry, the petitionsr filed Civil Suit No 92/ 253 of 1931/ 75 (I) for daclaring the said entry, as far it related to the right of late Gangadhar Sahoo, as erroneous. In the said suit the opp. party No. 4 was impleaded, after daath of his father, as a defendant The suit was decreed and it was held therein that the opp. party No. 4 had no right of way over the suit land and the petitioner was entitled to a decree for permanent injunction. It has also been averred that the husband of opp. party No. 4 had filed E. A. Lease Case No. 324 of 1976 claiming settlement of disputed land in his favour but the same was dismissed on 16-4-1977. The said Gangadhar Sahoo had also filed O.LR. Case No.2033 of 1976 under Section 9(1) of the O.L.R. Act. but the same was also rejepted by the Revenue Officer, Pipili on 27-1-1979 and on appeal being preferred, it met the similar fate. During the consolidation operation, on the basis of the entry in the record-of-rights, the name of opp. party No. 4 was recorded with note of easementary right in her favour. Being aggrieved by this recording, the petitioner filed Objection Case No. 426/56 of 1980 for deletion of the name of opp. party No. 4. On assessment of evidence, the Assistant Consolidation Officer rejected the objection case against which an appeal was preferred by the petitioner. The appeal did not bring any fruitful result. In revision, the orders were set aside and the matter was remanded to the Consolidation Officer for fresh disposal. On remand, the Consolidation Officer allowed the objection in part and directed for recording of easementary right in favour of opp. party No. 4 in respect of 10 links by the side of plot No. 120. Before the Consolidation Officer, both parties produced series of documents. 1 he Consolidation Officer relied on the spot enquiry and came to hold, the opposite party was using the disputed land as passage to the river and it was not clear from the materials on record whether there was any public road from her house to the river. He expressed the view that the L. R. records indicating easementary right over the full plot was erroneous and accordingly, he directed as indicated above. On appeal being preferred, the Deputy Director, Consolidation, affirmed the order passed by the Consolidation Officer. The reason for affirmation as indicated by the appellate authority was his visit to the spot, and further his observation that the opposite party was using the passage to go to the river. In revision, the Commissioner, Consolidation observed that the orders passed by the forums below were justified and did not call for interference by him. He took note of the order passed in O.E. A. Lease Case No. 3 4 of 1976 in O.L.R, Case No. 2033/ 76 and came to hold that from the said orders it could not be held that the orders were in favour of the present petitioner. With regard to the Civil Court decree, he opined that it was a nullity as the village was under the process of consolidation. So holding, he dismissed the revision petition.
3. Sri R. C. Rath, the learned counsel for the petitioner assails the orders passed by the authorities on the ground that the Consolidation authorities have no jurisdiction to record note of possession or Tight of easement while adjudicating matters, and further the conclusion by the Commissioner that the Civil Court decree is a nullity is a perverse finding inasmuch as the suit was for correction of record-of-tights alongwlth relief of permanent injunction.
4. The learned Addl. Government Advocate supported the orders passed by the Consolidation authorities contending that as the easementary right has been found on the basis of spot visit the same should not be disturbed.
5. None was present on behalf of opp. party No. 4 at the time of hearing.
6. We have perused the impugned orders. The decree passed by the Additional Subordinate Judge, Puri in 0. S. No. 92/263 of 1981/75-1 has been brought on record. In the said suit, the opp. party No. 4, who was defendant No. 4 alongwith her minor children were permanently restrained from exercising any right of way over the suit land in any manner whatsoever. A finding was arrived at that the defendants of the suit had no right of way over the suit land. As we find the Consolidation Officer has not discussed with regard to the effect of judgment and decree of the suit. He has proceeded solely on the basis of his spot visit. The appellate authority has also not referred to the judgment in the suit and has held against the present petitioners only on the basis of his spot visit. The revisional authority, we find, has distinguished the orders passed in the O. E. A. Lease case and the O.L.R. case. There is no reason to distinguish them. In the aforesaid cases, the claim of opp. party No. 4 was negatived. That apart, the revisional authority has declared the decree passed by the Civil Court as a nullity on the ground that the village was already under the process of consolidation. He has also held that the said decree was not binding on the consolidation Courts. On perusal of the judgment passed in the suit, we are afraid, we cannot persuade ourselves to agree with the findings of the revisional authority that the Civil Court had no jurisdiction to decide the controversy in the suit-It is clear as day that the suit was one for declaration and for permanent injunction and we find from the reading to the judgment that the prayer for permanent injunction was well-conceived. It is not a subter-fuse to clothe the Civil Court with jurisdiction. We notice that the revisional authority has commented on the said decree because it is an. ex parte decree. There is no difference between a contested decree or an ex parte one. As the decree is not a nuility, the same is binding upon the consolidation authorities and they should have followed it in its entirety and should not have made efforts to travel beyond the decree by their 'sopt visits'. As the entire basis of the impugned orders is defective, and incurable, we cannot sustain the orders and accordingly, we set them aside. The opposite parties are directed to correct the land register, keeping in view the judgment and decree passed in the civil suit.
7. Resultantly, the writ application is allowed. However. there shall be no order as to costs.
P.C. Naik, J.
I agree.