PROJECT DRAFT ON LAND LAW

SUBMITTED BY

SANGITESH SHIVAM

OF

9TH SEMSTER

ROLL NUMBER 1182083

BBALLB(B)

ABSTRACT

The researcher in this research piece had tried to emphasize on the provisions of The Orissa

consolidation of Holdings And prevention of fragmentation of land Act 1972. Basically in this

research piece the researcher had done a brief study along with some case law from section 23 to

32 of the act which falls under chapter 4 and deals with enforcement of the act. in this research

piece the researcher had explained the principal of each of the relevant provisions.

INTRODUCTION

ORISSA ACT NO 21 OF 1972 THE ORISSA CONSOLIDATION OF HOLDINGS AND

PREVENTION OF FRAGMENTATION OF LAND ACT, 1972 [Published vide Orissa Gazette

Ext. No. 1656/30.11.1972. [As amended by Orissa Act No.2 of 1989] AN ACT TO PROVIDE

FOR CONSOLIDATION OF HOLDINGS AND PREVENTION OF FRAGMENTATION OF

LAND FOR DEVELOPMENT OF AGRICULTURE IN THE STATE OF ORISSA

Be it enacted by the Legislature of the State of Orissa in the Twenty-third Year of the Republic

of India, as follows: [See Orissa Gazette Ext. No. 52/7.1.1972.]Statement of Objects and

Reasons-In the context of strategy for increasing agricultural production in the country and in

pursuance thereof to give inducement and incentive to the cultivators, it is considered expedient

to initiate legislation for consolidation of scattered holdings and re-marriage the holdings

including fragmented holdings among various landowners to make them more compact and to

provide against future fragmentation of holdings. This will help in economic farming and

application of improved implements and methods of farming which are necessary for

development of agriculture and increased agricultural production

The present bill seeks to achieve this object.

-(i) Statement of objects and reasons cannot be used for interpreting the legislation it the words

used therein are clear enough but it can be referred to for the purpose of ascertaining the

circumstance which led to the legislation in order to find out what was the mischief which the

legislation aimed at-AIR 1963 SC 1356: AIR 1963 SC 703: AIR 1963 SC 1241.

(ii) No relevancy in construing the true scope and effect of the provision when the words used

are perfectly intelligible and are used in their natural and plain meaning-AIR 1966 Ori. 1.

(iii) Statements of objects and reasons not admissible as an aid to the construction of a statute but

can be referred to for the limited purpose of ascertaining the conditions prevailing at the time

which actuated the sponsors of the Bill to introduce the same to the extent and urgency of the

evil which it sought to remedy-ILR 1975 Cutt. 843.

CHAPTER 4 ENFORCEMENT OF SCHEME

23. Entering into possession by land owner-On and after the date of publication of the map and

the record-of-rights under Sub-section (2) of Section 22, a land owner shall be entitled to enter

into possession of the lands allotted to him.

Principal ofThis section is that the act basically talks about entering into possession by the land

owner

24. (1) owner shall pay or receive compensation according as the valuation of houses structures,

trees, wells and other improvements existing on the lands allotted to him in the final

consolidation scheme is more or less than the valuation of such properties existing on the land

originally held by him

Explanation-For the purpose of Sub-section (1) “compensation” shall be the difference between

valuation of houses, structures, trees, wells and other improvements existing on the lands allotted

to him under the final consolidation scheme and the valuation of such properties originally held

by him.

(2) The amount of compensation determined shall be intimated to the landowners concerned in

the prescribed manner.25. Delivery of possession- (1) On an application made within sixty days

from the date of coming into force of the final Consolidation Scheme by the landowner who is

unable to enter into possession of the lands allotted to him under the said Scheme, the Assistant

Consolidation Officer may, within six months from the date of the application, put the land

owner in actual physical possession of lands so allotted, and in doing so, shall have all the

powers as are exercisable by a Civil Court in execution of decree for delivery of possession of

immovable property:

Provided that the delivery of possession as aforesaid shall not affect the right of the person from

whom possession is transferred to tend and gather the crops standing on such lands or part

thereof on the date of the delivery unless the Assistant Consolidation Officer decides, for reasons

to be recorded, that possession of the crops shall be delivered.

(2) On the expiry of six months from the date on which the land-owner becomes entitled to enter

into possession of the lands allotted to him in accordance with Section 23 or, where an

application has been duly made under Sub-section (1), on the expiry of six months from the date

of such application, the concerned land-owner shall, if he has not entered into Entering into

possession by land owner. Compensation for houses, structures, trees, wells, etc. On and from

the date of entering into possession, every land possession earlier, be deemed to have entered

into actual physical possession of lands to him

(3) Notwithstanding the provisions contained in Sub-section (2) where no application is made

under Sub-section (1) by a land-owner and, the Assistant Consolidation Officer has reasons to

believe the land-owner has not entered into possession of the land allotted to him, he may, on his

own motion and at any time before the issue of a notification under Sub-section (1) of Section

41, put the landowner in actual physical possession of the lands so allotted in the same manner

and; subject to the same conditions as specified in Subsection (1).

(4) The powers conferred on the Assistant Consolidation Officer under. Subsection (3) shall, in

like manner and in like circumstances be exercisable by the Tahasildar having jurisdiction after

the issue of notification under Sub-section (1) of Section 41

Principal of this section is that Compensation for houses, structures, trees, wells, etc. On and

from the date of entering into possession, every land

26. (1) Where possession of standing crops is delivered along with the land under Section 25,

Assistant Consolidation Officer shall determine, in consultation with the Consolidation

Committee, the compensation payable in respect of such crops by the landowner put in

possession. Explanation-“Compensation” for this purpose shall mean the anticipated value of the

standing crop when marketable less, reasonable expenses to be incurred for harvesting and

marketing of the crop

. (2) Any person aggrieved by an order under Sub-section (1) may within thirty days from the

date of the order, prefer an appeal before the Consolidation Officer whose decision thereon shall

be final.

Principal of this section is that it basically talks about compensation for standing crops

27. (1) Where a land-owner from whom compensation is recoverable under this Act, falls, to pay

the same within six months from the date of intimation under Sub-section (2) of Section 24, the

person entitled to receive the same may, in addition to any other mode of recovery open to him,

apply to the Collector within six months from the expiry of the aforesaid period to recover on his

behalf the amount due as if it were a public demand payable to the State Government

. (2) Interest at the rate of six per cent per annum shall be charged on the amount of

compensation remaining unpaid after expiry of the earlier period referred to in Sub- section (1).

Principal of this section is that it basically talks about recovery of compensation

28. Where as a result of contribution of public purposes, under the provisions of Section 8, the

valuation of the original holding of a land owner is reduced, the rent and cess payable for the

holding shall be reduced by the Assistant Consolidation Officer notwithstanding anything

contained in any other law for the time being in force, in the same proportion as the valuation of

the area so contributed bears to the original total valuation of the holding.

Principal of this section is that Reduction of rent and cess on account of contribution of land for

public purpose

29. An amount equal to five per cent of the market value of the land contributed for public

purposes as determined, in the prescribed manner shall be paid to the land-owner or owners

concerned

. (2) An amount equal to the market value of houses, structures, trees, wells, and other

improvements existing on the land contributed for public purposes as determined under this Act

shall also be paid to the landowners concerned.

Principal of this section is that Amount to be paid for land contributed for public purpose.

30. (1) The lands set apart for public purposes under the Final Consolidation Scheme shall, with

effect from the date of coming into force of the final scheme, be utilised for the said purposes.

(2) The land allotted to the State Government under the Final Consolidation Scheme shall, with

effect from the aforesaid date, vest and be always deemed to have vested in the State

Government.

(3) Where under a declaration under the proviso to Sub-section (2) of Section 17, any land

belonging to the State Government or used for public purposes is allotted to a landowner, the

right of the village community as well as of all the individuals and of the State Government in

such lands shall cease to be attached to such land shall be attached to the lands specified for the

purpose in the Final Consolidation Scheme.

Principal of this section is that Vesting of land contributed for public purposes and allotted to

State Government

31. With effect from the date on which a land-owner enters or is deemed to have entered into

possession of the Chaka allowed to him in accordance with the provisions of this Act, the

following consequences shall ensue

(1) The right, title, interest and liabilities of every land-owner in respect of his original holding

shall cease: Provided that where the land-owner is allotted his original holding either wholly or

in part in the Final Consolidation Scheme his right, title, interest and liability in such holding or

part thereof, as the case may be, shall remain unaffected;

(2) Every landowner shall have the same right, title, interest and liabilities in the “Chaka”

allotted to him as he had in the original holding and the rights and interests of all other persons in

respect of such original holdings shall stand transferred to the said “Chaka” or to such part

thereof as specified in the Final Consolidation Scheme. Explanation-Every such land-owner shall

enjoy the benefit of irrigation existing on the land allotted to him.

Principal of this section is that Consequences to ensue on landowner entering into possession.

32. (1) The State Government may recover as they may fix from the land-owners of the unit

towards the cost of the operations conducted under this Act: Provided that the aforesaid amount

shall not be fixed at a rate exceeding ten rupees per acre and shall be recovered in five equal

annual instatements.

(2) An amount payable as costs under this section shall be recoverable as a public demand.

Principal of this section is that Cost of consolidation on operation

IMPORTANT CASE LAWS OVER THE TOPIC

IN THE HIGH COURT OF ORISSA

O.J.C. No. 4353 of 1997

Decided On: 28.11.2014

Appellants: Pradeep Kumar Behera and Ors.

Vs.

Respondent: Commissioner of Land Records & Settlement and Ors.

Hon'ble Judges/Coram:

B.K. Nayak, J.

The learned counsel for the petitioners only challenges the jurisdiction of the Commissioner,

Land Records and Settlement to entertain the revision and pass the impugned order.

Undisputedly the R.O.R. in question was published under Section 13(1) of the Orissa

Consolidation of Holdings and Prevention of Fragmentation of Land Act and soon thereafter an

order by the State Government under sub-section (1) of Section 5 of the Consolidation Act was

published cancelling Government notification under Section 3(1) of the said Act whereby the

village in question had been brought under consolidation operation.

The contention of the learned counsel for the petitioners is that even though in terms of sub-

section (4) of Section 13 of the Consolidation Act, the R.O.R. published under sub-section (1) of

the said section be deemed to have been made under the Orissa Survey and Settlement Act

because of order of de-notification issued under Section 5(1) of the Consolidation Act, since the

R.O.R. has been published on determination of right, title and interest by the competent

authorities under the Consolidation Act, it was only the Commissioner, Consolidation or the

Director, Consolidation, who could have revisional jurisdiction under Section 37 of the

Consolidation Act to decide the correctness, legality and propriety of the R.O.R. and the

Commissioner of land records and settlement could not have entertained the revision since the

authorities under the Orissa Survey and Settlement Act have no jurisdiction to decide the

question of right, title and interest in land. His submission is that the deeming provision of

Section 13(4) of the Consolidation Act does not confer jurisdiction on the Settlement

Commissioner to decide the correctness of the R.O.R. published under Section 13(1) of the

Consolidation Act. Extending his argument he submits that in view of Section 51 of the

Consolidation Act investing jurisdiction on the Consolidation authorities and ousting the

jurisdiction of the Civil Court to decide the question of right, title and interest in the land within

the consolidation area and a publication of the R.O.R. under Section 13 of the Consolidation Act

is based on the decision of the question relating to right, title and interest by the consolidation

authorities, the Settlement Commissioner cannot sit on judgment over the said R.O.R. Drawing

analogy from Section 22 of the Consolidation Act, he submits further that a final consolidation

R.O.R. published under sub-section (1) of Section 22 of the Consolidation Act is also deemed to

be an R.O.R. prepared under the Orissa Survey and Settlement Act as per sub-section (4) of

Section 22 but the correctness of such R.O.R. can be subjected to scrutiny only by the revisional

authority under the Consolidation Act and, therefore, for the same reason an R.O.R. published

under Section 13(1) of the Consolidation Act may be scrutinized by the revisional authority

under the said Act and not by the revisional authority under the Orissa Survey and Settlement

Act. He also submits that issuance of an order of de-notification of consolidation under Section

5(1) of the Consolidation Act does not obliterate the decision of the consolidation authorities

with regard to right, title and interest in land which has culminated in publication of R.O.R.

under Section 13(1) of the Act inasmuch as such publication is made after hearing of objections,

appeals and revisions with regard to right, title and interest in land. He further logicises his

contention stating that even after issuance of a notification under Section 41 of the Consolidation

Act closing consolidation operation in an area the revisional authorities under the Consolidation

Act continue to have jurisdiction with regard to orders passed by sub-ordinate authorities under

the Act and for the same reason even after de-notification of consolidation by publication of

order under Section 5(1) of the Act, the revisional authorities under the Consolidation Act will

continue to have jurisdiction.

Learned counsel for opposite party No. 2, on the other hand, submits that issuance of order under

Section 5(1) of the Consolidation Act de-notifying consolidation operation not only has the

effect of stopping the consolidation proceeding in the consolidation area, but also has the effect

of obliterating all orders passed by the consolidation authorities deciding right, title and interest

in the land in the consolidation area and that since the consolidation proceeding in the area is

stopped from being brought to its logical end, the preparation of the R.O.R. under Section 13(1)

of the Act is only for the purpose of having consequences attached to publication of an R.O.R.

under the Orissa Survey and Settlement Act, by virtue of the deeming provision of Section 13(4)

of the Consolidation Act. Therefore, the Settlement Commissioner in exercise of its revisional

jurisdiction under Section 15 of the Orissa Survey and Settlement Act can examine the

correctness of the entries made in the R.O.R. published under Section 13(1) of the Consolidation

Act.

Mr. N.K. Sahu, the learned amicus curiae supports the contentions raised by the learned counsel

for the petitioners. Mr. U.K. Samal, the learned amicus curiae while supporting the contention of

the learned counsel for opposite party No. 2 to the extent that publication of de-notification order

under Section 5(1) of the Consolidation Act obliterates and sets at naught all orders and actions

of the consolidation authorities in respect of their decisions on right, title and interest in land,

further contends that neither the revisional authorities under the Consolidation Act nor the

authorities under the Orissa Survey and Settlement Act can have power or jurisdiction to

examine the correctness of the entries made in the R.O.R. and that any person aggrieved by any

entries made in any such R.O.R. shall have to take recourse to the common law forum by

instituting a civil suit.

. The question that falls for consideration is whether the correctness of R.O.R. published under

Section 13(1) of the Consolidation Act before issuance of order under Section 5(1) of the said

Act de-notifying consolidation operation in respect of the village concerned can be examined by

the revisional authority under the Consolidation Act or the revisional authority under the Orissa

Survey and Settlement

The Orissa Survey and Settlement Act, 1958 was enacted by the State Legislature to consolidate

and amend the laws relating to survey, preparation of record of rights and settlement of rent on

land holdings in the State of Orissa. Different parts of the State, prior to the enactment of the

Orissa Survey and Settlement Act 1958 (in short 'OSS Act') were being governed by different

tenancy laws for the purpose of survey, record of rights and settlement of rent, such as the

Bengal Survey Act, the Orissa Tenancy Act, the Madras Survey and Boundaries Act, the Madras

Estates Land Act, the C.P. Settlement Act, the C.P. Tenancy Act etc. Under the OSS Act survey

includes all or any other operations incidental to the determination, measurement and record of a

boundary or boundaries. Record of Rights under the Act are prepared having particulars and

entries including the name of the tenant or occupant, the class to which each tenant belongs and

the nature of interest, extent of the land held by each tenant or occupant, name of the landlord

and/or proprietor of each tenant, the rent and charges for irrigation payable by each proprietor or

landlord, tenant or occupant and the special conditions or incidents of the tenancy, etc. as

envisaged in Rule-21 of the OSS Rules. Settlement with reference to the OSS Act means

settlement of rent to be payable by a tenant, rayat or sub-tenant to the landlord in respect of the

land held. Chapter-IV of the OSS Act deals with settlement of rent whereas Chapter-II deals with

survey. Chapter-III of the Act deals with record of rights (ROR). Proceedings with regard to

survey, record of rights and settlement of rent are taken up separately by order of Government

passed to that effect from time to time under different provisions of the Act. However, Section

36 of the OSS Act authorizes the Government to make order directing simultaneous proceedings

to be taken up in respect of survey and preparation of R.O.R; preparation of R.O.R. and

settlement of rent; or survey, preparation of R.O.R. and settlement of rent with respect to any

local area.

The OSS Act provides for different hierarchy of officers and personnel and vested them with

power and jurisdiction for conducting different works and passing appropriate orders

After confirmation of the provisional consolidation scheme final map and record of rights are

prepared and published under Section 22 of the Act, which runs as under:

Preparation and publication of final map and record-of-rights and coming into force of the final

consolidation scheme - (1)(a) As soon as may be after confirmation of the Provisional

Consolidation Scheme the Consolidation Officer shall cause to be prepared for each village in

the consolidation area a final map and record-or-rights on the basis of the Consolidation Scheme

so confirmed.

(b) The map and the record-of-rights shall contain such particulars as are required under the

Orissa Survey and Settlement Act, 1958 (Orissa Act 3 of 1959) with such modifications as may

be prescribed and shall also show the rent and cess determined under Sub-section (3) of Section

7.

(2) The map and the record-of-rights prepared under Sub-section (1) shall be published in the

prescribed manner and the Final Consolidation Scheme shall come into force from the date of

such publication.

(3) The relevant extract of the record-of-rights shall be supplied to the land-owners at the time of

publication.

(4) The map and the record-of-rights published under Sub-section (1) shall, subject to alterations

and modifications made in pursuance of orders passed under Section 15 or 36 or orders referred

to in Sub-section (3) of Section 41, for all intents and purposes be deemed to have been prepared

under the Orissa Survey and Settlement Act, 1958."

As per Section 23 of the Act, on an after the date of publication of the map and record of rights

under sub-section (2) of Section 22, a land-owner shall be entitled to enter into possession of the

land allotted to him.

Section 25 provides that on an application made within sixty days from the date of coming into

force of the final consolidation scheme by the land-owner who is unable to enter into possession

of the land allotted to him under the Scheme, the A.C.O. may put the land-owner into actual

physical possession of the lands so allotted. Under sub-section (3) of Section 25 in the absence of

any application by the land-owner, the A.C.O. may on his own motion at any time before the

issue of notification under sub-section (1) of Section 41 put the land-owner into actual physical

possession of the allotted lands, if he has reason to believe that the land-owner has not entered

into possession. Under sub-section (2) of Section 25 on expiry of six months from the date on

which the land-owner becomes entitled to enter into possession of the lands in accordance with

Section 23 or where an application has been made to the A.C.O. under sub-section (1), on the

expiry of six months from the date of such application, the land owner shall, if not entered into

possession earlier, be deemed to have entered into actual possession of the land.. Section 31 of

the Consolidation Act provides for consequences to ensue on land-owner entering into

possession. The said Section is extracted hereunder:. Consequences to ensue on land-owner

entering into possession - With effect from the date on which a land-owner enters or is deemed

to have entered into possession of the Chaka allotted to him in accordance with the provisions of

this Act, the following consequences shall ensue-

(1) The right, title, interest and liabilities of every land-owner in respect of his original holding

shall cease:

Provided that where the land-owner is allotted his original holding either wholly or in part in the

Final Consolidation Scheme his right, title, interest and liability in such holding or part thereof,

as the case may be, shall remain unaffected;

(2) Every landowner shall have the same right, title, interest and liabilities in the "Chaka" allotted

to him as he had in the original holding and the rights and interests of all other persons in respect

of such original holdings shall stand transferred to the said "Chaka" or to such part thereof as

specified in the Final Consolidation Scheme."

Section 36 of the Consolidation Act gives the Consolidation Commissioner powers of revision

against any decision of the Director of Consolidation. Section 37 confers suo motu power of

revision on the Consolidation Commissioner and the Director, Consolidation and in doing so

those authorities may call for and examine the records of any case decided or proceedings taken

up by any subordinate authority for the purpose of satisfying himself as to the regularity of the

proceedings or as to the correctness, legality or propriety of any order passed by any such

authority.

Section 41 of the Consolidation Act provides for closure of consolidation operation which shall

be after preparation and publication of final R.O.R. under Section 22, though the operation of the

provisions of Chapter-IV relating to enforcement of the final consolidation scheme as contained

in the final R.O.R. may continue. Section 41 of the Act is quoted here in below:

. Closure of consolidation operations - (1) As soon as may be after the final maps and the records

have been prepared under Section 22, the State Government shall issue a notification to the affect

that the consolidation operations have been closed in the unit and then the village or villages

forming part of the unit shall cease to be under the consolidation operations:

Provided that the issue of a notification under this section shall not affect the operation of the

provisions contained in Chapter IV.

(2) Notwithstanding anything contained in Sub-section (1), consolidation operations shall not be

deemed to have been closed in respect of any case or proceeding pending under the provisions of

this Act on the date of issue of notification under Sub-section (1).

(3) The orders passed by the competent authorities in matters referred to in Sub-section (2) shall

be given effect to by such authorities as may be prescribed.

It is a salutary principle of interpretation of statute that the provision of an Act should be read

harmoniously so as to avoid anomaly and conflict. Hence, in view of the provisions of the

Consolidation Act and OSS Act as discussed above, it must be held that the Consolidation

Commissioner or Director of Consolidation has no authority to examine in exercise of revisional

power under Section 37 of the Consolidation Act, the correctness of R.O.R. published under

Section 13(1) of the Act and preceded by publication of cancellation order under Section 5(1) of

the Act. In view of the deeming provision of Section 13(4) of the Consolidation Act an R.O.R.

published under Section 13(1) before publication of cancellation notification under Section 5(1)

shall have all the consequences attached to the R.O.R. as if it is one published under the OSS Act

and, therefore, correctness thereof can be examined by the Settlement Commissioner under

Section 15(b) of the said Act. By exercising power under Section 15 of the OSS Act, the

Settlement Commissioner does not decide right and title in the land. For the reasons aforesaid,

contention of the learned counsel for the petitioner fails and the writ petition is dismissed.

Before parting, this Court puts on record sincere appreciation for the painstaking assistance

rendered by Mr. N.K. Sahu and Mr. U.K. Samal, the learned Amicus curies.

IN THE HIGH COURT OF ORISSA

Civil Revision No. 130 of 1979

Decided On: 20.08.1986

Appellants: Bishnu Mohan Mallik

Vs.

Respondent: Dhruba Naik

Hon'ble Judges/Coram:

Agarwala, C.J. and S.C. Mohapatra, J.

The short facts are that the plaintiff filed a Title Suit for recovery of possession of certain lands

with mesne profits in the Court of the Munsif, Bhubaneswar. A Notification Under Section 3(2)

of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972

(Orissa Act 21 of 1972) (for short, 'the Act') in respect of the mouza in question had already been

published in the meantime

The general principle, that the validity of a decree can be challenged in execution proceedings

only on the ground that the Court which passed the decree was Jacking in inherent jurisdiction in

the sense that it could not have seisin of the case because the subject-matter was wholly foreign

to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree

passed, or some such other ground which could have the effect of rendering the Court entirely

lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it, is well-

settled and undisputable. (See MANU/SC/0041/1961; Hira Lal Patni v. Sri Kali Nath).

It may well be that in view of the bar created by Section 51 read with Section 4(4) of the Act, the

jurisdiction of the Civil Court was ousted but the ouster of jurisdiction was not automatic, and as

the scheme of the Act also suggests, an order has to be passed by the Court in this regard.

There may be an exception to this well-accepted principle, e. g. where a Court with limited

jurisdiction, such as an Industrial Tribunal which has no power to decide a jurisdictional fact, but

wrongly holds or assumes that such facts existed and passes an order in exercise of such assumed

jurisdiction, the order cannot operate as res judicata being void for want of jurisdiction because

want of jurisdiction in such a case is 'aparant' But determination of question of title is generally

the functions of the Civil Court and therefore in such cases the party is debarred from raising the

same questions over and over again. No decision taking a contrary view in the matter was

brought to our notice by the learned Advocate for: the opposite party.

The Full Bench of the Allahabad High Court in Bikram Singh's case (supra), while considering

the scope of Section 5 of the U. P. Act, which is in pari materia with the Orissa Act, observed

that the legislature did not take away the jurisdiction of the Civil Court completely. It merely

directed stay of the proceedings to avoid conflict of decisions by two competent authorities on

one and the same point between the same parties. After the publication of the Notification Under

Section 4of the said Act, the stay of the proceedings as provided Under Section 5 cannot be

automatic for one more reason. The Court before which the suit or the appeal or the proceedings

are pending Will have to decide whether or not the provisions of Section 5 of the Act would

apply to the case. All that the law requires is that the proceedings before it should be stayed, and

after the matter is decided by the Consolidation authorities, the decision is to be communicated

to the Court who shall proceed with the proceeding or the suit, as the case may be. Thereafter, it

is clearly laid down that the effect of Section 5(b)(i) of the Act was not to destroy of take away

the jurisdiction of the Court before whom a suit or an appeal was pending. It remained seized of

the case throughout and ultimately it had to pass a judgment or order or decree in a case.

Therefore, it cannot be said that a decree or order of judgment passed by such a Court would be a

nullity even though it alone had the jurisdiction to pass the order or the decree or the judgment.

The Full Bench referred with approval the view of an earlier Division Bench in Lakhpat Singh v.

Dal Singh (1964 Allahabad Law Journal 1949) that if an appeal is decided on merits in ignorance

of the fact that a Notification Under Section 4 of the Act has been issued, the judgment would

not be a nullity but it would be a case of the Court acting with material irregularity in the

exercise of its jurisdiction

From the discussion and authorities noticed above, it becomes clear that the Civil Court being a

Court having the initial and otherwise inherent jurisdiction over the subject-matter to entertain

the suit under the Code of Civil Procedure which has been ousted by a subsequent legislation, a

special statute no doubt created a Court of pro tanto jurisdiction, but nonetheless, if the Civil

Court decides rightly or wrongly that it is competent to maintain the suit and ultimately passes a

decree, then the executing Court being a Court of co-ordinate jurisdiction cannot question the

legality of that decision on an objection Under Section 47, C.P.C., as that would obviously

amount to going behind the decree.

On the above discussions, I am led to the conclusion that the executing Court has committed a se

Before, however, parting with this case, yet another argument that was advanced on behalf of the

judgment-debtor has to be noticed.

It was submitted that in any view of the matter, the decree would not be executed as in the

meantime the revenue authorities have already closed the ceiling proceeding so much so that

Chaks have already been formed Under Section 31 of the Act and distributed. It was therefore

submitted that at this stage it is not possible to going back to the decree stage with respect to the

suit land.

This plea of the judgment-debtor, in my opinion, has got two simple answers, namely. (1) this

question does not arise from the order under revision and therefore the facts which have been

stated before us cannot be properly examined, and (2) even assuming that the facts stated are

correct, the decree of the Civil Court being binding on the judgment-debtor as well as on the

revenue Courts, it could not be rendered nugatory or unenforceable at the instance of the

judgment-debtor by keeping the revenue Courts uniformed of this fact and obtaining the orders

in his favour. Accordingly, suit orders as are based on mistake of facts as also of law cannot

supersede the binding force of the Civil Court decree. Otherwise, the whole theory of res judicata

will become meaning-less and deprive the successful party to enjoy the benefits of the decision

of a competent Civil Court in his favour by the act of an unscrupulous litigant. For this obvious

proposition, no authority need be cited.rious error of jurisdiction in holding that the decree under

execution was a nullity.

This application must therefore succeed, and it is accordingly allowed, but in the circumstances, i

leave the parties to bear their own costs

REFERENCE

THE ORISSA CONSOLIDATION OF HOLDINGS AND PREVENTION OF

FRAGMENTATION OF LAND ACT, 1972

MANUPATRA

SCC ONLINE

WESTLAW