Sri Brundaban Patra Vs. Priyanath Acharya - Court Judgment

P.K. Mohanti, J.

1. This revisional application is directed against an order refusing the defendant's prayer for abatement of the suit under section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972.

2. The opposite party brought O.S. No. 340/59 of 1980/83(I) in the Court of the Munsif, Puri for recovery of passession of the suit lands alleging that though he had executed a usufructuary mortgage in favour of the petitioner, yet in order to avoid the provisions of the Orissa Money Lenders Act the document was scribed in the garb of a 'Kant Kabala' and that although the mortgage stood statutorily discharged the defendant did not deliver possession of the mortgaged lands.

3. The stand taken by the defendant was that the document in suit is a deed of sale with a condition of repurchase and it was not meant to be a deed of usufructuary mortgage.

4. During the pendency of the suit the village where the lands are situated came under the consolidation operation on the publication of a notification under section 3 of the Act. Thereafter the petitioner filed an application on 31-1-83 for an order of abatement of the suit under the provisions of section 4(4) of the Act. The learned Munsif by his order dated 21-6-83 dismissed the application observing that the suit was not for declaration of any right or interest in land and that the main issue in the suit was whether the document referred to in the plaint was a mortgage deed or a sale deed and if it is a mortgage deed, whether the mortgage had been discharged. Aggrieved by this order, the defendant has come up in revision.

It is urged on behalf of the petitioner thateven assuming that the document in suit is a deed of mortgage haying been statutorily discharged, the only remedy of the opposite party was to ask for recovery of possession of the mortgaged property and the opposite party having sought for that relief, the suit is liable to be abated under the provisions of section 4(4) of the, Act.

5. It appears that the parties have already approached the consolidation authorities for determination of their rights,. The Consolidation Officer came to the finding that the document was a deed of sale with a condition of repurchase. On appeal, the Deputy Director of Consolidation affirmed the findings of the Consolidation Officer. It is submitted on behalf of the petitioner that a revisional application has been filed against the appellate order of the Deputy Director of Consolidation.

6. On the pleadings of the parties, the main question for consideration is whether the plaintiff is entitled to recover possession of the suit property. According to the plaintiff, the property was mortgaged by him with the defendant by way of security for payment of loan. The defendent on the other hand contended that the suit transaction was a sale with condition of repurchase and on the plaintiff's failure to camply with the condition he has been in possession as of right, Thus, there is dispute between the parties regarding right or interest in land. This is not a puce, and simple suit by mortgagor for recovery of possession on extinction of the mortgage security. The case of Abas Ali Khan v. Sahabuddin Khan, 49 (1980) C. L. T. 297 relied upon by the opposite party is clearly distinguishable on the facts.

7. Under section 4(4) of the Act every suit for declaration of right or interest in land is liable for abatement. Possession is an 'interest' in land. In view of the rival Contentions of the parties in the present suit, the Court will have to adjudicate upon the right or interest of the plaintiff in respect of the suit property taking into consideration the stand taken by the defedant. Thus, the suit is covered by section 4(4) of the Act as the right or interest in land is clearly involved in it. I am in this view fortified by a decision of their Lordships of the Supreme Court in the case of Ram Adhar Singh v. Ramroop Singh and Ors., A. I. R. 1968 S. C. 714. That was a suit for recovery of possession. The suit land having come under the consolidation operation, a prayer was made for an order for abatement of the suit under section 5 of the U. P. Consolidation of Holdings Act, 1953, as amended by U. P. Act 21 of 1966. In section 5, as it originally stood, suits for possession of land were expressly dealt with, but under the amended section there is no direct reference to 'suit 8 for possession of Land'. It was urged before their Lordships that when section 5 was amended by omitting 'suits for possession of land' the suit was not hit by the provisions of section 5 as it stands after amendment. Repelling the contention their Lordships held as follows :

'......' Suits for possession', as such, has not been expressly referred to, in the new section 5, but in our opinion, the expression 'every suit and proceeding in respect of declaration of rights or interest in any land3 are comprehensive enough to take in suits for possession of land, because, before a claim for possession is accepted, the Court will have necessarily to adjudicate upon the right or interest of the plaintiff, in respect of the disputed property taking into account the claim of the opposite party. Therefore, in our opinion, the suit, instituted by the respondent, is covered by the amended section 5 of the Act.'

8. In view of my foregoing findings, the Civil Revision is allowed and the impugned order is set aside. O. S. No. 340/59 of 1980-83(I) pending before the Munsif, Puri shall stand abated. Parties to bear their own costs.