High Court
Case Details
HIGH COURT OF ORISSA : CUTTACK RSA NO.57 of 2006 In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned Additional District Judge, Bhadrak in Title Appeal No.1 of 1998 setting aside the judgment and decree passed by the learned Civil Judge (Senior Division), Bhadrak in Title Suit No.154/1987-I. ……… Narayan Chandra Sahoo @ Narayan Chandra Sahu & Others Appellants -:: VERSUS ::- Raghunath Das & Others :::: Respondents. For Appellants Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- … M/s.R.K. Mohanty, (Sr. Advocate) D.K. Mohanty, S.N. Biswal, A.P.Bose, S.K. Mohanty, P.K. Samanatary, S. Mohanty & M.R. Dash, (Advocates) For Respondents … M/s.B. Baug, Advocate (R.2 to 4, 6 to 9, 12 to 18 and 20) P R E S E N T : ------ THE HON’BLE MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- :: Date of Judgment: 29.03.2023 :: --------------------------------------------------------------------------------------- D.Dash,J. The Appellants, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) have assailed the judgment and decree passed by the learned Additional District Judge, {{ 2 }} Bhadrak in Title Appeal No.1 of 1998. By the same, the Appeal filed by the Respondent Nos.1 to 10 under section 96 of the Code has been allowed and these Respondents being the Plaintiffs when had been non- suited by the Trial Court; their suit has been decreed in the First Appeal. Therefore, these Appellants being the aggrieved Defendant Nos.4 to 13 are in the Second Appeal before this Court. It may be stated here that the original Appellant No.1 having died during pendency of the Appeal, in presence of other Appellants, no further substitution has been made. Raghunath Das, the original Plaintiff No.1 having died during pendency of the First Appeal in presence of rest of the Plaintiffs, his legal heirs have not been substituted and the petition filed to that effected had been rejected on 17.08.2004. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter, have been referred to, as they have been arraigned in the Trial Court. 3. Plaintiffs case is that the disputed properties in schedule ‘Kha’ of the plaint situated in two Mouza, namely, Kusunpur and Suanpada measures Ac.3.07 dec. as per the current settlement record of right belonged to one Chakradhar Das, the father of the Plaintiff No.1. It is stated that the Plaintiff No.1, Laxman and Plaintiff Nos.19 to 20 as well as the grandfather of other remaining Plaintiffs belong to one family. It Page 2 of 24 {{ 3 }}
Legal Reasoning
is also the case of the Plaintiff that the deceased Chakradhar, his sons and his grandsons are the shareholders-cum-members of Bhadrak Co- operative Land Development Bank (Defendant No.1). They had mortgaged the disputed property in favour of the Defendant No.1-Bank by executing simple mortgage deed on 02.06.1969 for a sum of Rs.4,000/-, agreeing therein, inter alia to pay interest @ 9.1% per annum within a period of 19 years with an annual instalments of Rs.630.40 paise and that on failure to pay the instalment, the mortgagee would take the mortgage properties to Khass possession and pay up the mortgage dues from the usufructs of the mortgaged property. It is further stated that on the allegation that annual instalment amount was not paid by the mortgagers, the mortgaged property was sold by the Sale Officer (Defendant No.3) for a sum of Rs.5,269.40 in an auction held pursuant to the order passed in Execution Proceeding Case No.30/1974-75 on 31.05.1975 and it is purported therein to have been purchased by the wife of Defendant No.2, who then sold the said property to her husband, the Defendant No.2 under a registered sale deed. The wife of Defendant No.2 died few months prior to the suit. According to the case of the Plaintiffs, the delivery of possession of the suit land although is merely is shown to have been taken on 05.12.1975, that is however not in reality. It is stated that the notice under section 91 of the Orissa Co- operative Societies Act, 1962 (for short called as ‘O.C.S. Act’) in Page 3 of 24 {{ 4 }} writing requiring payment of mortgaged money or part thereof from the persons who have got interest in the said mortgaged property or who has got right to redeem the same is required and according to Rule 141 of the Orissa Co-operative Societies Rules, 1965 (for short, ‘the O.C.S. Rules’), the Sale Officer only upon the expiry of three months from the date of the notice under section 91 of the O.C.S. Act has the power to sale the mortgaged property after giving due notice in writing to all the persons having interest in the mortgaged property. The Plaintiffs alleges that the mandatory provisions of section 91 of the O.C.S. Act and rule 141 of the O.C.S, Rules as to giving of three months notice have not at all been complied with. It is also stated that the Sale Officer has no jurisdiction to initiate the proceeding for sale. The Plaintiffs alleged that the Bank-Defendant No.1 has not served any notice under section 91 of the O.C.S. Act upon anyone but only asked the Sale Officer to sale the mortgaged property, which is void and in violation of the provision of section 91 of the O.C.S. Act and rule 141 of the O.C.S. Rules. According to the Plaintiffs, no notice by registered post has been served in connection with the sale of the said mortgaged property indicating the specified amount for which the property would be sold nor the Sale Officer has made the sale proclamation as required under sub-rule (5) of the rule 141 of the O.C.S. Rules, by beat of drums in the village where the mortgaged property situates nor had sent the copy of the Page 4 of 24 {{ 5 }} proclamation to Revenue Officer, Bhadrak for affixing the sale in their notice board; also no copy of the said proclamation to any of the Plaintiffs has been served. It is the further case of the Plaintiffs that the Sale Officer on 30.08.1974, having found that no bidder turned up in contravention of the provisions contained in rule 141(6) of the O.C.S. Rules instead of adjourning/postponing the sale to any specified date, again on 01.05.1975 after lapse of eight months, fixed the sale date to 31.05.1975 but then no fresh proclamation was issued as required under Rule 141(6) of the O.C.S. Rules. According to the Plaintiffs as no fresh proclamation was issued, no other bidder could participate in the said bid except that Saraswati and her bid was accepted. The property sold would have been more than the value at which it was sold. It is stated that the Sale Officer has failed to exercise the power vested in him under sub-rule 6 of rule 141 of the O.C.S. Rules in issuing fresh proclamation in seeking participation of adequate number of bidders. It is also stated that there has been deliberate violation of statutory provisions of the O.C.S. Act and the Rules made thereunder and thus said sale is attacked as invalid and as such it is said that the auction purchaser has not acquired right, title and interest over the property under that invalid sale. It is stated that the delivery of possession of the disputed property as noted pursuant to the auction sale to have been given to the auction purchaser only reflected in the paper but not in the field when the facts Page 5 of 24 {{ 6 }} remain that the Plaintiffs have been in possession of the property and paying the rent. It is also stated that when Saraswati, the auction purchaser could not possess the disputed property and as the Plaintiffs remained in possession as before, she had lodged an F.I.R. against the Plaintiffs alleging commission of offence under section 379, I.P.C. and that case ended in favour of the Plaintiffs. It is stated that after such acquittal, said auction purchaser with the help of some persons came upon the suit land one fine morning in the month of December, 1984 and forcibly cut and removed the paddy and since then said auction purchaser remained in possession of the suit land till her death. It is next stated that Plaintiff Nos.3,4,7,8,9,10,14 and 15 were minors when the disputed property was mortgaged to the Defendant- Bank by their father guardian. They also say that the mortgage for the above reason is illegal as the minors were not the members of the society. It is also said that the mortgage of the property where the minors had their interest without the permission of the learned District Judge could not have been made. According to the Plaintiffs, Chakradhar having died in the year 1972, the interest of the Plaintiffs Nos.11,12,16,17,18,19 and 20 are not affected by the said auction sale and as such neither the auction purchaser or her transferee have no right, title and interest over the suit property. They having forcibly dispossessed the Plaintiffs from the disputed property, the suit came to Page 6 of 24 {{ 7 }} be filed after serving notice as required under section 127 of the O.C.S. Act. 4. The Defendant Nos.1 and 3 did not file any written statement. The auction purchaser Saraswati having died, her husband, the Defendant No.2 filed the written statement and other legal representatives have been impleaded as Defendant Nos.4 to 13. The Defendant Nos.4,5,8,10 and 11 have filed an additional written statement indicating that it was also on behalf of Defendant Nos.3,4,7,9,10,11 and 12. The Defendant No.6 has filed another written statement and the contesting Defendant Nos.2 and 8 have filed an additional written statement along with Defendant No.9. The Defendant No.2 and other L.Rs. of Sawaswati although have filed three sets of written statement, from all practical points of view, those remains the same. 5. The contesting Defendants plead that the Plaintiffs have no cause of action; the suit is barred by limitation and the Plaintiffs are not entitled to get any relief which they claim since the title of the auction purchaser in the auction has been confirmed under section 103 of the O.C.S. Act which is not questionable in Civil Court. It is stated that the R.O.Rs. granted by the Consolidation Authority finally deciding the right, title and interest of the parties is no more amenable to challenge. It is also stated that the suit is hit by the principles of res judicata as the Plaintiffs having duly contested the Consolidation Proceedings Page 7 of 24 {{ 8 }} concerning the suit land in Objection Case No.775 /52,776 and 777 of 1986 before the Consolidation Officer and also in Consolidation Appeal No.96/86 before the Deputy Director, Consolidation, Bhadrak, there has been a finality on the question of right, title and interest of Saraswati, the auction purchaser over the said land. Therefore, it is no more in dispute that Saraswati purchased the suit land in the auction sale. The Defendant denied the averments taken in the plaint about the mortgage and the terms and conditions of mortgage and the allegation of non- payment of instalments. According to them, Saraswati was the title holder being the auction purchaser of the land and as such was in possession of the same till her death, which came to her LRs. The non- observance of the provision of section 91 of the O.C.S. Act and rule 141 of the O.C.S. Rules has been denied. They also deny the fact that the delivery of possession of the auction property in favour of the auction purchaser was merely on the paper and to have not been physically made. It is stated that the suit property having been recorded in favour of the Saraswati in the consolidation R.O.R., her possession over the suit land as the auction purchaser is established. They state that when some of the Plaintiffs created disturbance in their possession over the suit property of the auction purchaser there having arisen the apprehension of breach of peace, proceeding under section 144, Cr.P.C. had been initiated against the Plaintiffs which came to be numbered as Misc. Case Page 8 of 24 {{ 9 }} No.34/80 and 56/81 before the Sub-Divisional Magistrate, Bhadrak. It is stated that the auction purchaser possessed the land since 1975 and remained in cultivating possession of the same till her death. After her, the Defendant No.2 and other LRs. are in possession of the same land under Consolidation Khata No.29 and 163 and have been harvesting crops over there. They state that the F.I.R. lodged by Saraswati was not based on false facts. It is also stated that the acquittal order passed therein was not on the ground of non-proving of the actual delivery of possession. They also denied to have taken possession of the suit land forcibly with the help of other persons. According to them, the right of the father was there as the Karta of the family to mortgage the joint family property and there was no necessity for him to take permission from the learned District Judge for mortgaging the same. They denied that the thereby any interest of Plaintiff Nos.11,12,16 and 20 has ever been affected. According to them, Saraswati had duly purchased the property in auction and was put in possession of the said purchased land and since then, the Plaintiffs are never in possession of the said land. It is stated that the Plaintiffs had full knowledge regarding the execution proceeding before the Assistant Registrar of Co-operative Societies, Bhadrak and although Subarna, the Plaintiff No.13 had filed a petition to set aside the same in Execution Proceeding No.30/1974-75 after inquiry it was dismissed and the sale was confirmed. It is stated that Subarna Page 9 of 24 {{ 10 }} had again filed Revision Case No.35/75 before the Additional Registrar of Co-operative Societies, Bhubaneswar and by order dated 12.05.1977, the Revision was dismissed and the order of the ARCS has been confirmed. The Plaintiffs thus having failed in all their attempts to get the sale nullified, the Consolidation Authorities have rightly recorded the land in suit. 6. On the above rival pleadings, the Trial Court in total framed eight issues. Answering the crucial issues, i.e., Issue Nos.4,5 and 6 which relate to the auction purchaser taking delivery of possession, right of Chakradhar to mortgage the property and the right, title and interest as claimed by the Plaintiffs over ‘Kha’ schedule land, the Trial Court upon examination of evidence and their evaluation, has answered as under:- (a) though the suit properties originally belonged to Chakradhar, the predecessor-in-interest of the Plaintiffs, the Plaintiffs have lost title in view of the auction sale and its confirmation by means of which Saraswati acquired title and has been put in possession of the suit properties; (b) Chakradhar had the right to mortgage the interest of the minor Plaintiffs and they had no right over the mortgage the property; (c) the auction purchaser had taken delivery of possession of the mortgage property in the auction sale; Page 10 of 24 {{ 11 }} (d) the suit is barred by limitation as the auction sale was held and confirmed on 10.09.1975 when the suit has been filed on 27.11.1987; (e) the claim of the Plaintiffs that they were dispossessed on 05.12.1985 is false in view of the evidence on record; and (f) the Consolidation Authority have recorded the land in favour of the auction purchaser namely, Saraswati. Having found all these above, the Trial Court dismissed the suit. 7. The unsuccessful Plaintiffs having filed the Appeal, the First Appellate Court has held as follows:- (i) the sale certificate and auction proceeding along with the consolidation R.O.R. are illegal; (ii) the delivery of possession of the auction property to the auction purchaser is symbolic. Having said all these above, the First Appellate Court has passed the following order:- “The sale certificate and the sale proceeding are declared illegal and so also the consolidation R.O.Rs. The right, title and interest of the Plaintiffs over the suit lands is hereby declared and confirmed. The delivery of possession to the auction purchaser is held as a symbolic paper transaction as the land is now lying fellow. The possession of the Plaintiffs is confirmed. The auction Purchaser-Defendant and the Bank are restrained from entering into or disturbing in Page 11 of 24 {{ 12 }} any manner in the peaceful possession of the Plaintiffs over the suit land.” 8. The instant Second Appeal having been filed by the aggrieved Defendants, the same has been admitted to answer the substantial questions of law as indicated in Ground Nos.(C) (D) and (E) of the Memorandum of Appeal, which are:- (I) Whether the jurisdiction of the Civil Court is barred in the instant case? (a) In view of Section of 121 of the Co-operative Societies Act, specifically ousting the Civil Court’s jurisdiction to interfere with any proceeding, order, decision, determination or award under the said Act. (b) In view of Section 94 of the Co-operative Societies Act , which specifically mandates that the auction purchasers (Defendant- Appellants) title cannot be questioned on the ground of notice and the Plaintiff/Respondent Nos.1 to 20 are only entitled to damages. (c) In view of section 9 of the C.P.C. barring the jurisdiction of Civil Court where statutory remedies are available. (N.B.- In the instant case the Plaintiffs/Respondents 1 to 20 have unsuccessfully exhausted all statutory remedies under the Co-Operative Societies Act). Page 12 of 24 {{ 13 }} (II) Whether the Plaintiffs’ suit can be decreed in the absence of proper specification of the suit property as required under Order-7, Rule 3, C.P.C.? (a) When the mortgaged property has undergone statutory transformation under the provisions of the OCH & PFL Act and has merged with other lands forming new chakas in favour of the Defendant/Appellants. (b) When the persons who have been allotted chakas inclusive of the mortgaged property are not parties to the suit. (c) When no executable decree can be passed in the absence of any nexus between the alleged mortgaged property and the present property allotted by way of chakas to the Defendant-Appellants. (III) Whether the mortgage in question can be nullified, particularly after being subjected lawfully to the provision of the Act? (a) When the suit mortgage deed clearly authorizing the Bank to auction. (b) When The suit mortgage has been executed by the father/karta of the family who is authorized to do so under Article 236 of the Old Hindu Law and section 85(A) of the Orissa Co-operative Societies Act; Page 13 of 24 {{ 14 }} (c) When there is no allegation that the suit mortgage was not for the benefit of the family so as to bring the suit within the extended limitation prescribed under Article 60 of the Limitation Act.
Legal Reasoning
9. Mr. R.K. Mohanty, learned Senior Counsel for the Appellants (Defendants) submitted that the provision contained in section 121 of the O.C.S. Act specifically bars the jurisdiction of the Civil Court or Revenue Court in respect of any proceeding under the Act. According to him, the loanee has a right under rule 103(4) of the O.C.S. Rules to apply for setting aside the sale before the Sale Officer and the aggrieved party is given the right of appeal and revision. He thus submitted that as in the instant case, there was a prayer from the side of the Plaintiffs to set aside the sale in Execution Case No.30 of 1974-75 and as no fraud is pleaded and proved when one of the Plaintiffs as it reveals from Ext.G, challenged the auction sale by taking recourse to set aside the auction sale in different forums, which was rejected, Therefore, he submitted that the Plaintiffs are not entitled to question the validity of sale conducted by the statutory authority under the O.C.S. Act in the present suit after long lapse of time. In this connection, he has also referred to Ext.H, the order of the Revisional Authority and submitted that as against that there being no further move under section 113 of the O.C.S. Act, it is clear that the sale was then accepted by surrendering to the orders of the statutory authorities. He thus submitted that the bar Page 14 of 24 {{ 15 }} contained in section 121 of the OCS Act squarely stands against the entitlement of the suit. He further submitted that section 85(A) of the O.C.S. Act authorizes the Manager of the joint Hindu family to execute the mortgage in favour of the Bank and in such a case it shall be binding on all the members. It was also submitted that as provided in Article 236 of the old Hindu Law, the father as the Karta is empowered to execute mortgage on behalf of the joint family and in the instant case, the Plaintiffs when have never made out a case that the mortgage was not for the benefit of the family and Chakaradhar had no authority at all to mortgage the property in question, the findings of the First Appellate Court cannot be sustain and must yield to quashment. He submitted that when section 94 of the O.C.S. Act provides a statutory protection to a bonafide purchaser who having participated in the process in the statutory proceeding has lawfully acquired the property through court auction on payment of valuable consideration and when the said provision mandates that a sale shall not be questioned on the ground provided therein including the lack of notice, it was incumbent upon the aggrieved Plaintiffs to satisfy the statutory authorities on the invalidity and they having failed successively before the statutory forums, cannot question the title of the auction purchaser in the present suit when the only remedy available to them is to claim damages against the Defendant-Bank which has not been so advanced in the instant case. It Page 15 of 24 {{ 16 }} was further submitted that even the plea of non-service of notice has not been substantiated through any documentary evidence, save and except the bald statement taken in the plaint which is not the proof. In this regard, he submitted that the Plaintiffs having filed an application under Order 11, Rule 14 of the Code on 20.03.1989 to direct the Sale Officer to produce documents although it had been allowed on 23.06.1989 thereafter they having not taken the step under Order 16, Rule 10 of the Code to cause production of the documents in the manner prescribed therein, the presumption under section 114(g) of the Evidence Act stands drawn that the documents if would have been so tendered in evidence would have gone against the Plaintiffs. He, therefore, submitted that for such inaction on the part of the of the Plaintiffs, adverse inference to their case is bound to be drawn, which the First Appellate Court has totally overlooked. He then submitted that the decision of the Consolidation Authority on the question of title which ultimately has culminated in publication of the ROR, operates as res judicata. According to him, the Plaintiffs having failed to get their title established before the Consolidation Authorities which has finally resulted in publication of the consolidation R.O.R. and as the decision of the Original Consolidation Authorities shows that the pleas taken by the Plaintiffs in the suit had been taken there and turned down, they raising the same Page 16 of 24 {{ 17 }} plea for adjudication and decision afresh cannot succeed in the suit. In this connection, he has referred to the decision in case of Srinibas Jena & Others Vrs. Jandardan Jena & Others, AIR, 1981 Orissa 1, wherein it has been held that finality is attached to the decision of the Consolidation Authorities and, therefore, the same shall not be called in question in any Court of law and that once the parties work out their rights before the Consolidation Authorities and exhaust the remedies under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, the OCH & PFL Act), cannot agitate the same question over and again before the Civil Court and, therefore, the Consolidation Authorities decision would operate as res judicata. He also submitted that the Plaintiffs suit is liable to be dismissed for lack of proper identification of the suit properties in as much as the Plaintiffs have not provided the details of the changed specifications brought about in the Consolidation Proceedings, which under the changed situation was obligated upon. According to him, the original mortgaged property has in the meantime been converted into the Chakas with new boundaries being amalgamated with other properties as would be evident from Ext.A and B. Therefore, as no executable decree can be passed in favour of the Plaintiffs as per the specifications of the land provided in the plaint which have become the extinct after the closure of the consolidation operation and publication of the record Page 17 of 24 {{ 18 }} of right vide Exts.A and B, the suit on that ground alone is bound to to fail. 10. Mr.B. Baug, learned counsel for the Respondent Nos.2 to 4, 6 to 9, 12 to 18 and 20 submitted that Chakradhar having expired in the year 1972, the execution proceeding initiated in the year 1974-75 against Chakradhar alone though he was not the sole mortgager and the order passed therein is a nullity. He further submitted that there being complete violation of the mandatory provisions contained in section 91 of the O.C.S. Act and rule 141 of the O.C.S. Rules, the sale is void ab initio. It was also submitted that when the lands were mortgaged, some of the mortgagers were minors and, therefore, their interest could not have been sold in execution proceeding. Therefore, according to him, the sale of mortgaged property in which the minors have the interest is illegal and void which the First Appellate Court has rightly held. It was submitted that since the provisions of the O.C.S. Act and Rules which are mandatory in nature have been violated, the Civil Court has the jurisdiction to entertain the suit and the provision of section 121 of the O.C.S. Act will not stand as a bar for this suit with the reliefs claimed. He submitted that the provision of section 51 of the O.C.H. & P.F.L. Act would not come on the way of the suit since the Consolidation Authorities had no jurisdiction to set aside the auction sale and merely because objections were filed by some of the Plaintiffs and they had Page 18 of 24 {{ 19 }} carried the Appeal, the decision of the Consolidation Authorities would not operate as res judicata. He further submitted that some properties which had not mortgaged at all have been sold in that Execution Proceeding Case vide Ext.6 and, therefore, the Execution Proceeding in which the sale has been made is null and void. 11. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement and have perused the evidence, both oral and documentary. 12. Section 121 of the O.C.S. Act as it stands after amendment vide Orissa Act No.28 of 1991 which came into force with effect from 01.05.1993 reads as under: 121. Save as provided in this Act no Civil or Revenue Court shall have any jurisdiction on any ground whatsoever in in respect of any proceeding under this Act and Rules or any order, decision, determination of award, by whatever expression called, made or given thereunder. This provision prior to the above amendment read as follows:- 121(1) Save as provided in this Act, no Civil or Revenue Court shall have any jurisdiction in respect of– (a) the registration of a society or bye-laws or of an amendment of a by-law; Page 19 of 24 {{ 20 }} (b) the removal of a committee ; (c) any dispute required under section 68 to be referred to the Registrar; and (d) any matter concerning the winding up and the dissolution of a society. (2) While a society is being wound up, no suit or other legal proceedings relating to business of such society shall be proceeded with, or instituted against the liquidator as such or against the society or any member thereof, except by leave of the Registrar and subject to such terms as he may impose. (3) Save as provided in this Act, no order, decision or award made under this Act shall be questioned in any Court on any ground whatsoever. The provision as to the bar as it stands after amendment would have its play as it had come to the statute by the time the decision was rendered by the Trial Court on 03.10.1997. 13. The loanee has a right as provided in Rule 103(4) of the O.C.S. Rules to apply for setting aside the sale before the Sale Officer. The party aggrieved by the said decision has been given the right of Appeal and Revision. In the instant case, a prayer to set aside the sale was made in Execution Proceeding Case No.35/1974-75. Thus, there was a contest from the side of the Plaintiffs to the auction sale. Ext.G reveals that one Page 20 of 24 {{ 21 }} of the Plaintiffs had taken recourse to set aside the auction sale in question by presenting an application which was rejected on 10.09.1975. He then had preferred an Appeal before the Deputy Registrar of Co- operative Societies which stood numbered as Appeal Case No. 38 of 1975 and then a Revision being carried out, it was numbered as Revision No.35 of 1975. Those having been dismissed, as evident from Ext.G and Ext.H, the orders passed, although a right of further Revision before the State Government under section 113 of the Act was available, the same has not been availed of. Therefore, the present suit filed in the year 1987 questioning the validity of the sale conducted by the statutory authority under the O.C.S. Act way back in 1975, in my view would be barred as provided in section 121 of the O.C.S. Act. Having said above, this Court finds no further need to discuss to the decisions in cases of Ugramadhab Joshi Vs. the Assistant Registrar, Co-operative Societies and Ors., MANU/OR/0211/1983; Kela Gouda Vs. Krishna Panigrahi & Ors., AIR 1987 Orissa 243 and Iswar Chandra Beura & after him Dilip Kumar Beura & Ors. Vs. Ghanashyam Swain & Ors., 72 (1991) C.L.T. 420, which discuss on the invalidity of auction sale for noncompliance of the relevant provision of OCS Act and Rules in seisin of writ proceedings carried to the High Court in assailing the orders passed in those proceedings by the statutory Authorities but not in subsequent suit Page 21 of 24 {{ 22 }} being instituted projecting those grounds seeking the relief of declaration of the auction sale as void. 14. In the given case, it further appears that the Plaintiffs in spite of their attempt have failed to obtain a decision on their title in respect of the suit land before the Consolidation Authorities both in the Original and Appellate forum. Finally, the Consolidation Record of Right has been published. The Plaintiffs as it reveals from Ext.5, the decision of the original Consolidation Authority having raised the pleas which they have taken in the present suit, those have been turned down. The Appellate Authority being approached by these Plaintiffs, the move in that regard has also been unsuccessful as would be evident from Exts.K and L. In consequence thereof, the Record of Rights have been issued in favour of the Defendants under Ext.A and B. The Consolidation Authority being empowered to decide the title, in order to rule upon the same concerning the suit lands, which were the subject matter of the auction in E.P. Case No.35 of 1974-75, the power was squarely then resting with said Authorities to decide as to whether in that auction sale, the title in respect of the property auctioned had passed on to the hands of the auction purchaser, i.e., Saraswati keeping in view the very claim of the Plaintiffs that said auction is void in view of non-compliance of mandatory provisions of OCS Act and Rules as also involvement of the Page 22 of 24 {{ 23 }} interest of the minors over the property so mortgaged and auctioned which they attack on that ground too as void. That apart, the description of the suit properties are found to be not in consonance with the said specifications of the lands as per the Consolidation Record of Right and the fact remains that the properties which were the subject matter of the auction sale have in the meantime in the Consolidation Operation being amalgamated with other lands have been converted to Chakas with new boundaries, taking new identities and that too have been mingled with other properties losing their identity as before and thus have undergone sea change in the field, which are wholly irreversible. For all these aforesaid, this Court is of the view that not only that the provision of section 51 of the O.C.H & P.F.L. Act would stand as a bar for the present suit but also the suit is also liable to be dismissed on the ground that no executable decree can be passed in view of such massive changes concerning the said auctioned land in the field which are totally irreversible. The substantial questions of law are accordingly answered against the Plaintiffs. Therefore, it is held that the judgment and decree passed by the First Appellate Court are liable to be set aside and the Plaintiffs suit as laid for the reliefs claimed is liable to be dismissed. Page 23 of 24 {{ 24 }} 15.
Decision
In the result, the Appeal is allowed and the judgment and decree passed by the First Appellate Court being set aside; those passed by the Trial Court, non-suiting the Plaintiffs stand restored. No order as to cost. (D. Dash), Judge. Himansu Page 24 of 24