I. Mahanty, J.
1. In the present writ application, the Petitioner has sought to challenge the Order Dated 20.4.2006 passed by the Civil Judge (Sr. Divn.), Second Court, Cuttack in C.S. No. 1 of 2003-1 whereby the Learned Civil Judge has been pleased to direct stay of the suit till disposal of the proceedings under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Lands Act, 1972 (in short "Consolidation Act").
2. Learned Counsel for the Petitioner asserts that the Trial Court has taken note of the fact that the issues raised in the present suit relate to parentage, adoption, validity of transfer etc. and determination of such issues were not within the purview of the authorities under the Consolidation Act. Learned Counsel for the Petitioner submits that after having given such a finding in the impugned order, yet the Trial Court has directed stay of the suit till disposal of the pending proceedings under the Consolidation Act, purportedly on the ground that the issue of adoption being an ancillary relief to the main issue i.e. partition, can also be adjudicated by the authorities under the Consolidation Act.
3. Mr. Sahu, Learned Counsel for the Petitioner submits that the Trial Court ought not have granted the order of stay even though a Revision petition, namely, R.P. Case Nos. 2689 to 2694 of 2002 under the Consolidation Act remained pending on the date of filing of the suit. He also submits that the Civil Court alone is competent to grant the relief sought for in the suit and the fact of pendency of the revision applications before the Director, Consolidation by itself, without reference to the issues involved therein, it cannot be contended that the bar under Section 51 of the Consolidation Act on the jurisdiction of the civil Court will operate. In other words, it is contended that the bar under Section 51 will only operate to the extent of the issues that are pending determination in the pending revision proceedings under the Consolidation Act and not otherwise. Mr. Sahu, further contends that the Trial Court having taken note of the issues raised for consideration in the suit and having prima facie concluded that such issues "are not within the purview of the consolidation authorities for consideration" ought not to have granted stay of the suit and should have proceeded with the same.
4. Learned Counsel for the Opp. Parties, on the other hand, submits that in the area in question, the Notification under the Consolidation Act was published in the Orissa Gazette on 4.4.1995 and since the revision petitions referred to hereinabove remain pending adjudication before the Commissioner of Consolidation, it is to be deemed that the consolidation proceeding remain in operation and therefore, the bar under Section 51 would continue to operate and for the aforesaid reason, Learned Counsel supports the order passed by the Trial Court.
5. Section 51 of the Consolidation Act reads as follows:
51. Bar of jurisdiction of Civil Courts-Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions contained in Clause (3) of Section 4 and Sub-section (1) of Section 7-
(1) all questions relating to right, title, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction of Revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of this Act by the appropriate authority during the consolidation operations; and
(2) no Civil Court shall entertain any suit or proceedings in respect of any matter which an officer or authority empowered under this Act is competent to decide.
6. A similar issue arose for consideration before this Court in the case of Jairam Samantray v. Baikuntha Samantaray and Ors. . In the said case, the Petitioner therein made a claim seeking inclusion of his name as a joint owner with his brothers and nephews since his name was omitted from the preliminary record. The Opp. Parties resisted the claim pleading adoption of the Petitioner by an agnate. While the Consolidation Officer negatived the claim of the Petitioner, in appeal the Appellate authority accepted the plea of adoption. But in revision, the Commissioner of Consolidation held that the question being one relating to status, the Petitioner should get the same established in a competent Court.
A Division Bench of this Court headed by Justice R.C. Patnaik (as His Lordship then was) considered the scope of the bar contemplated under Section 51 of the Consolidation Act and came to hold that the questions relating to right, title, interest and liability in land, are to be decided by the Consolidation authorities, except, those which can only be decided by the civil Court and are, therefore, out of bounds to them. In deciding questions of right, title, interest and liability in land, questions and issues relatable thereto arise for decision. The decisions on the question of right, title, interest and liability depend and hinge on the decision on the connected questions, the questions which have to be decided ancillarily and incidentally. Their Lordships further held that seeking a declaration simpliciter as to legal character as contemplated by Section 34 of the Specific Relief Act is exclusively within the jurisdiction of the Civil Court and not within the competence of the consolidation authorities. It was further held that except in cases where title is claimed on the basis of transactions inter vivos, in most cases title is claimed on the basis of relationship, say as son, father, mother, husband or wife etc. Each such question of relationship is a question pertaining to legal character or status. Their Lordships concluded that if title to property as son by birth can be adjudicated upon by the consolidation authorities, they failed to understand why, adjudication of claim to title as son by way of adoption should be out of bounds to them. Having so coming to hold that it is within the competence of the consolidation authorities to determine such question of adoption as ancillary issue, this Court quashed the revisional order passed by the Commissioner and remitted the matter back for a fresh disposal of the revision and it was further directed that if the parties had not lead evidence on the question of adoption, the Revisional Court was directed to remit the matter to the consolidation officer for disposal after permitting the parties to lead evidence on such issue.
7. In the above noted case, this Court has clearly laid down the law that every question of relationship pertaining to legal character or status connected to land has to be determined by way of evidence before the consolidation authorities and to that extent, the bar of the civil Court as contemplated under Section 51 of the Consolidation Act clearly operates.
8. In view of the aforesaid Judgment and on consideration of the facts of the present case, I am in complete agreement with the conclusion arrived at by the Learned Civil judge in the impugned order and therefore, I affirm the same.
9. At the conclusion of the hearing, Learned Counsel for the Petitioner placing reliance on a Judgment of this Court in the case of Krushna Chandra Barik v. Nimai Charan Panda and Ors. has prayed for appointment of a receiver as contained in his prayer in Misc. Case No. 5863 of 2006.
10. I am not inclined to entertain such an application in the present proceeding, but in terms of the Judgment relied upon by the Learned Counsel, liberty is granted to the Petitioner to file proper application before the civil Court and if such an application is filed for receivership, the same shall be considered and disposed of on its own merit in accordance with law.
11. Subject to the aforesaid observations and directions, the writ application is dismissed. No costs.
