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Saturday, October 6, 2012

whether under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Administration of Land Act, 1972 (for short `the 1972 Act’) a final decree stood abated. The Full Bench referred to the notification issued under Section 3(1) of the 1972 Act, scanned the language employed in sub-section (4) of Section 4 and came to hold that a final decree proceeding cannot be characterized as a suit or a proceeding for right, title or interest in respect of any land. It has been opined there that Section 4(4) does not include an appeal arising out of a final decree as the same would not declare any right, title or interest of the parties but deal with certain matters pertaining to what has already been declared. Pendency of an appeal against the final decree cannot take away the finality of the preliminary decree which has already declared the rights, title and interest of the parties. We may repeat for clarity that in the said case, the preliminary decree passed in the suit had become final as it was not challenged by way of an appeal. Thus, the factual matrix was quite different. Suffice it to say that in the present case the title appeal was pending against the preliminary decree and an application under Section 4(c) had been preferred. It would have been advisable on the part of the appellate court to record a finding that the entire proceeding of the civil suit stood abated. Unfortunately, the appellate court directed abatement because of non-substitution of the legal heirs of one of the respondents. We are conscious that an order is to be passed on an application filed under Section 4 (c) of the Act, but we do not intend to relegate the matter to that stage as it is obvious that in the suit, right, title and interest and status were involved which do come within the scheme of consolidation. Hence, the suit as well as the appeal abated and resultantly the very commencement of the civil proceeding came to a naught and, therefore, findings recorded in the said proceeding became extinct. The learned Judge dealing with the writ petition as well as the learned Judges deciding the intra-court appeal did not appreciate the lis in proper perspective and opined that the reliance on the findings recorded by the civil court by the revisional authority under the 1956 Act could not be faulted. The said conclusion is wholly erroneous and deserves to be overturned and we do so. 37. Consequently, the appeal is allowed, the orders passed by the learned single Judge as well as of the Division Bench are set aside and the matter is remanded to the file of the learned single Judge to decide the matter on merits on the basis of the material brought before the Consolidation Authorities. We repeat at the cost of repetition that none of the findings recorded by the civil court shall be taken aid of. There shall be no order as to costs.


                                                                Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL No. 7234           2012
                (Arising out of SLP (C) No.  24463  of 2011)


Paras Nath Rai and others                          ….. Appellants

                             Versus

State of Bihar and Ors.                            … Respondents






                               J U D G M E N T



Dipak  Misra, J.


      Leave granted.

2.    Calling in question the legal acceptability of  the  order  dated  2nd
May, 2011 passed by the Division Bench of the High Court  of  Judicature  at
Patna in LPA No. 947 of 2002 whereby stamp of approval  has  been  given  to
the order dated 9th August, 2002 passed by the learned single Judge in  CWJC
No. 1851 of 2000 wherein the learned single Judge affirmed the  order  dated
17th December, 1999 passed by the Director of  Consolidation,  Bihar,  Patna
in Revision Suit Nos. 151/75, 152/75 and 624/77  respectively,  the  present
appeal by special leave has been preferred.

3.    The facts which are essential to be stated  for  the  adjudication  of
the present appeal are that Partition suit No. 123  of  1963  was  filed  by
Sesh Nath Rai, father of the appellant No. 1 and others  against  Kanta  Rai
and others.  The claim in the suit for partition pertained to the house  and
“Sahan” standing over plot Nos.  593  and  595  under  Khata  No.  18.   The
learned Munsif by judgment and decree dated 4th April,  1968  dismissed  the
suit observing that the plaintiffs’ stand that  one  Umraoti  Devi  was  the
daughter of Ananta Rai did not appear to be  correct.   The  learned  Munsif
further opined that there had been a previous partition  and  the  suit  was
defective for non-joinder of parties.  However, on  the  determined  status,
he carved out  the  shares  and  concluded  that  the  plaintiffs  were  not
entitled to any relief claimed and accordingly dismissed the suit.

4.     Being  dissatisfied  with  the  aforesaid  judgment  and  decree  the
appellants preferred Title Appeal Nos. 30/41 of 1968/71.  It  is  worthy  to
note that the State Government had issued notification No. 1168  dated  26th
November, 1970 under Section  3  of  Bihar  Consolidation  of  Holdings  and
Prevention of Fragmentation Act, 1956 (for short  ‘the  Act’)  bringing  the
area under consolidation scheme.  Before the appellate court a petition  was
filed under Section 4 (c) of the Act to the effect that the appeal  and  the
suit had abated by statutory operation of law.  The appellate  court  failed
to consider the application  and  decided  that  the  appeal  could  not  be
allowed to proceed as one of the respondents had died  during  the  pendency
of the appeal and  the  application  for  substitution  had  been  rejected.
However, he allowed the appeal to be withdrawn observing as follows:-

                 “In the present  appeal  I  find  that  the  suit  of  the
           plaintiffs-appellants was dismissed by the learned  lower  Court
           and a decree  was  prepared  accordingly.   Again  by  the  non-
           substitution of the heirs of Panna Devi  the  whole  appeal  has
           become incompetent and it has abated against those  respondents.
           As such I have no doubt  that  a  vested  right  has  come  into
           existence in favour of the respondents before the  petition  for
           withdrawal was made.  Relying on the authorities quoted above  I
           find that the appellants cannot be allowed permission to file  a
           fresh suit.  However, they are allowed to withdraw the appeal as
           prayed for.”

5.    Grieved by the aforesaid order a Civil Revision No. 559  of  1975  was
filed  whereby  the  learned  single  Judge  returned  a  finding  that  the
appellant had not  made  any  prayer  for  withdrawal  of  the  appeal  and,
therefore, the order  passed  by  the  lower  appellate  court  was  without
jurisdiction and accordingly he remitted the matter to the  lower  appellate
court for disposal of the appeal in accordance with  law.   It  was  further
observed that any defect with regard to the competency of the  appeal  shall
be decided by the appellate court at the  time  of  hearing  of  the  appeal
itself.

6.    After the remit the Title Appeal was revived and  eventually  on  26th
November, 1980 the learned sub-Judge, Bhaubhua took note of  the  fact  that
the appellant was not represented and the respondent Nos. 1 and 2 had  filed
cross objection and had also filed  an  application  for  abatement  of  the
appeal.  The learned sub-Judge noted that the appellant was  not  interested
to contest the appeal and, accordingly, opined that  the  Title  Appeal  No.
30/68 and Title Appeal No. 123/63 stood abated.

7.    At this juncture, it  is  necessary  to  refer  to  the  consolidation
proceedings.  The Consolidation Officer vide order dated  23rd  March,  1974
arrived at the conclusion that the applicant Umraoti Devi  is  the  daughter
of Anant Rai and hence, claim  of  the  applicant  therein  deserved  to  be
rejected.  Being of this view he directed entry in Khata No. 142  of  recent
revisional survey of village Lakhanpatti Thana No.  407  which  was  in  the
name of the  Shesh  Nath  Rai,  the  respondent  therein,  would  remain  in
operation.  The appeals preferred from the said order  did  not  render  any
success to the appellants.

8.   Be it noted,  there  were  two  revision  petitions,  namely,  Revision
Petition Nos.  151/1975  and  152/1975  which  were  decided  ex-parte.  The
revisional authority by order dated 1.09.1978 confirmed  the  orders  passed
by the Consolidation Officer and the Deputy Director, Consolidation.

9.    The two orders passed by  the  Revisional  Authority  were  challenged
before the High Court in CWJC Nos. 1638  and  1640  of  1981.   The  learned
single Judge by order  dated  15.11.1985  quashed  the  order  impugned  and
directed the Additional Director to  decide  the  revision  petitions  along
with other pending revisions if mentioned.

10.    After  the  remand,  three  revisions,  namely,  Revision  Suit  Nos.
151/1975, 152/1975 and 624/1977 were disposed of vide order dated  8.10.1987
by the Deputy Director, Consolidation holding that Umraoti Devi was not  the
daughter of Dhyani Rai and she had no right in the disputed land.

11.   The aforesaid common order was assailed in CWJC No. 5610/1987 and  the
learned single Judge by order dated 14.05.1998 expressed the view  that  the
Deputy Director, Consolidation could not have decided  the  revisions  while
in-charge of Director and hence, the order had been passed by  an  authority
who did not have jurisdiction and, accordingly, remanded the  matter  to  be
heard afresh and disposed of by the revisional authority.

12.     After the remand, the Director, Consolidation  dismissed  the  three
revisions by expressing the view that  Umraoti  Devi  was  the  daughter  of
Dhyani Rai and not of Anant Rai.  The said conclusion  was  arrived  on  the
base of findings recorded by the civil court.  The said  order  came  to  be
challenged in C.W.J.C. No. 1851 of 2000.  The learned single Judge by  order
dated 9.08.2002 concurred with view  of  the  appellate  authority  and  the
revisional authority and, accordingly, dismissed the writ petition.

13.      The decision of the learned single Judge was called in question  in
LPA No. 947 of 2002 and the Division Bench opined that  as  the  appeal  had
abated for the non-prosecution by the appellants and  as  the  consolidation
authorities had taken note of the findings recorded by the civil court,  the
same had been rightly not been interfered with by the learned single  Judge.
 Being of this view, the Division Bench  dismissed  the  appeal.   The  said
orders are the subject matters of assail in the present appeal.

14.   We have heard  Mr.  Nagendra  Rai,  learned  senior  counsel  for  the
appellants and Mr. S.B. Sanyal, learned senior counsel for the  respondents.


15.   It is urged by Mr. Nagendra Rai that the High Court  has  fallen  into
error by concurring with the view expressed by the revisional authority  and
the forums below that Umraoti  Devi  was  the  daughter  of  Dhyani  Rai  as
recorded by the civil  court  without  taking  note  of  the  fact  that  an
application for abatement was filed under Section 4 (c) of the  Act  to  the
effect that the title appeal had abated  after  issue  of  the  notification
under Section 3 of the Act.  It is urged by him  that  the  High  Court  has
committed a grave factual error by expressing the view that the  appeal  had
abated because of the non-substitution  of  legal  representative.    It  is
canvassed by him that once appeal as well  as  the  suit  stood  abated  the
findings recorded in the  suit  could  not  have  formed  the  base  of  the
decision.  To buttress the said  submission  he  has  commended  us  to  the
decisions in Ram Adhar Singh v. Ramroop Singh and Others[1];  Chattar  Singh
and others. v. Thakur Prasad Singh[2].

16.   Mr. Sanyal, learned senior  counsel  appearing  for  respondents,  per
contra, would contend that after the suit  was  decreed  and  a  preliminary
decree had been passed, the same would not come within the  purview  of  the
suit or appeal or reference or revision and hence, would  not abate.  It  is
also urged by him that the decree passed by the civil  court  could  not  be
nullified and therefore, the findings recorded in the suit could  be  relied
upon.  To bolster his proponement, he has placed reliance on Section  4  (c)
of the Act and drawn inspiration from  Raja  Mahto  and  Another  v.  Mangal
Mahto and  others[3],  Satyanarayan  Prasad  Sah  and  others  v.  State  of
Bihar[4] and Mst. Bibi  Rahmani  Khatoon  and  others  v.  Harkoo  Gope  and
others[5].

17.   To appreciate the rivalised  submission  raised  at  the  bar,  it  is
relevant  to  state  here  that  during  the  pendency  of  the   appeal   a
notification under Section 3  of  the  Act  had  come  into  existence.   An
application under Section 4 (c) was filed for abatement of  the  appeal.  It
was misconstrued and treated as an application for abatement of  appeal  due
to non-substitution of the legal representative of the respondents.   It  is
also necessitous to state here that at one point of time it  was  raised  by
Mr.  Sanyal  that  the  notification  was  withdrawn  but   the   same   was
controverted by Mr. Rai that such withdrawal of notification was  challenged
before the High Court and it was quashed.  The said  position  was  accepted
by Mr. Sanyal as a matter of fact.  This being the factual position  we  are
required to address what would be the effect on issue of notification  under
Section 3 of the Act.

18.   Section 4  of  the  Act  provides  the  consequences  of  issuance  of
notification under sub-Section 1 of Section 3.  One significant  consequence
as set out in Section 4(c) reads as under:-

           4(c)- “Every proceeding for the correction of records and  every
           suit and proceedings in respect  of  declaration  of  rights  or
           interest in any land lying in the area  or  for  declaration  or
           adjudication of any other right in regard to  which  proceedings
           can or ought to be taken under  this  Act,  pending  before  any
           court or authority whether of the first instance or  of  appeal,
           reference or revision, shall, on an order being passed  in  that
           behalf by the court  or  authority  before  whom  such  suit  or
           proceeding is pending, stand abated”.

Be it noted, there are as many as five provisos to Clause (c) of  Section  4
of the Act.  The proviso relevant for the present purpose reads as follows:-


           “Provided further that such abatement shall be without prejudice
           to the rights of the persons affected to agitate  the  right  or
           interest in dispute in the said suits or proceedings before  the
           appropriate consolidation authorities under  and  in  accordance
           with the provisions of this Act and the rules made thereunder.”

19.  A Division Bench of the Patna High Court in the  case  of  Dr.  Jagdish
Prasad @ Jagdish Prasad Gupta v. Sardar Satya Narain Singh & Ors.[6],  after
referring to the decisions in Nathuni Ram  &  ors.  v.  Smt.  Khira  Devi  &
ors.[7], Srinibas Jena & ors. v. Janardan Jena & ors.[8],  Ram  Adhar  Singh
(supra), Satyanarayan Prasad Sah (supra), Mst. Bibi Rahmani Khatoon  (supra)
came to hold as follows :-

           “In my opinion, the  Supreme  Court  did  not  differ  with  the
           principle laid down in the former case  of  Satyanarayan  Prasad
           Sah.  Hence we are of the opinion that under  section  4  (c)  a
           suit, an appeal a reference or a revision will abate and neither
           a preliminary decree nor a final decree will abate.   Hence,  we
           dismiss the petition filed by the appellant under section 4  (c)
           of the Act.  Even if it is held that  the  appeal  abates  under
           section 4 (c) of the Act, the effect will be that  it  will  not
           help the party inasmuch as even if the appeal abates, the  final
           decree  remains  alive.   The  suit  comes  to  an  end  when  a
           preliminary decree is  passed  for  the  purpose  of  the  Bihar
           Consolidation of Holdings and Prevention of Fragmentation  Act.”



20.   In Raja Mahto and Another  (supra)  the  learned  Judges  referred  to
Section 3 of the Act, scanned the anatomy  of  Section  4(c),  distinguished
the decisions in Ram Adhar Singh (supra), Gorakh  Nath  Dube  v.  Hari  Nath
Singh[9]  and placing reliance on Satyanaryan Prasad Sah (supra), opined  as
follows :-

           “I am, therefore, of the opinion that under Section 4 (c) of the
           Act, the suit, appeal, reference or revision abates and not  the
           decree or preliminary or final decree abates.”



21.   In Ram Adhar Singh (supra) a three-Judge Bench of  this  Court,  while
dealing with a controversy that had arisen under amended Section 5 of  Uttar
Pradesh Consolidation of Holdings Act,  1953  (hereinafter  referred  to  as
‘1953 Act’) which provided that after publication of the notification  under
Section 4 of the 1953 Act all proceedings for correction of the records  and
all suits for  declaration  of  rights  and  interests  over  land,  or  for
possession of land, or  for  partition,  pending  before  any  authority  or
court, whether of first instance, appeal, or reference  or  revision,  shall
stand abated.
22.   After scrutinizing the scheme of the Act this Court ruled thus:-
           “We have referred only to some of the salient provisions of  the
           Act; and they will clearly show that the subject-matter  of  the
           dispute, between the parties in this litigation, are all matters
           falling for adjudication, within the purview of the authorities,
           constituted under the Act. In fact, clause (b),  of  sub-section
           (2) of Section 5 of the Act, as it now stands,  also  lays  down
           that the abatement of the proceedings, under clause  (a),  shall
           be without prejudice to  the  rights  of  persons  affected,  to
           agitate the right or interest in dispute in the  said  suits  or
           proceedings, before the  appropriate  consolidation  authorities
           under the Act and in accordance with the provisions of  the  Act
           and the Rules made, thereunder.”

23.   In Chattar Singh (supra) while the  appeal  was  pending  before  this
Court a notification had been issued under Section 4 of the  1953  Act.   By
virtue of the operation of Section 5(2)(a) of the  said  Act,  there  was  a
statutory abatement of the suit and  other  proceedings  pending  therefrom.
The three-Judge Bench referred to the decision in Ram  Adhar  Singh  (supra)
and  opined  that  even  appeals  pending  before  this  Court  would  abate
consequent upon statutory provision.  This Court ruled  that  the  suit  and
the appeal stood abated and it was open to the parties  to  work  out  their
rights before the appropriate consolidation authorities.

24.   At this juncture, it is relevant to  refer  to  the  pronouncement  of
this Court in Satyanarayan Prasad Sah (supra).  This Court, while  upholding
the constitutional validity of Section 4(c) of the 1956 Act, held  that  the
High Court should not have “nullified” the decree of  the  trial  court  but
should have merely declared that the  proceedings  stood  abated,  which  of
course, means that the civil proceedings came to naught.

25.   In Mst. Bibi Rahmani Khatoon (supra) a title  suit  was  filed  before
the learned Additional Subordinate Judge I, Gaya, for declaration  of  title
and for recovery of possession of  certain  agricultural  land.   The  trial
court decreed the suit declaring that the  plaintiffs  were  the  owners  of
certain khatas and were entitled to recover  possession  of  the  same.   On
appeal being preferred the  learned  District  Judge,  Gaya,  dismissed  the
appeal and affirmed the decree of the trial court.   In  Second  Appeal  the
High Court took note of the fact that one of the defendants had died  during
pendency  of  the  appeal  before  the  District   Court   and   his   legal
representatives were neither impleaded nor any one claiming under  him  came
to be substituted in the appeal pending in the District Court.   During  the
pendency of the Second Appeal before the High Court an affidavit  was  filed
stating that a notification under Section  3  of  the  1956  Act,  had  been
issued and in view of the language employed in Section 4  of  the  said  Act
the suit and  the  appeals  stood  abated.   The  High  Court  accepted  the
submission and disposed of the appeal by stating that the proceedings  stood
abated and resultantly  the  judgments  and  decrees  of  the  courts  below
deserved to be set aside.  This Court referred to Section 4  as  amended  in
1973 and thereafter referred to the material part of the proviso  to  Clause
(c) of Section 4 of the Act.

26.   A contention was raised that the  High  Court  had  erred  in  setting
aside the judgments and decrees of the trial court as well as of  the  first
appellate court which were in favour of the appellants before this Court  on
the ground that those proceedings had stood abated.  In that  context,  this
Court adverted to the scheme of consolidation and opined thus: -

           “9. When a  scheme  of  consolidation  is  undertaken,  the  Act
           provides for adjudication of various claims to land involved  in
           consolidation by the authorities set up under the Act. In  order
           to permit the authorities to pursue adjudication of rival claims
           to land  unhampered  by  any  proceedings  in  civil  courts,  a
           wholesome  provision  was  made  that  the  pending  proceedings
           involving claims to land in the hierarchy of civil  courts,  may
           be in the trial court, appeal or revision,  should  abate.  This
           provision  was  made  with  a  view   to   ensuring   unhampered
           adjudication of claims to land before the authorities under  the
           Consolidation Act without being  obstructed  by  proceedings  in
           civil courts or without being hampered or impeded  by  decisions
           of the civil courts in the course of consolidation of  holdings.
           In order to avoid conflict consequent upon  rival  jurisdictions
           the legislature provided  that  the  proceedings  involving  the
           claims to  land  put  in  consolidation  should  be  exclusively
           examined by the authorities under the Consolidation Act and  all
           rival  jurisdiction  would  be  closed.  Simultaneously  it  was
           necessary to deal with the pending proceedings and that  is  why
           the provision for abatement of such proceedings.”


27.    It  is  worthy  to  note  that  this  Court  noticed  the  conceptual
difference of abatement in civil law and in the scheme of the 1956 Act,  and
observed that if the abatement as conceptually understood  in  the  Code  of
Civil Procedure is imported to Section 4 of the 1956  Act,  it  would  cause
irreparable harm and the party  whose  appeal  is  pending  would  lose  the
chance of convincing the appellate court which, if  successful,  would  turn
the tables against the other party in whose favour the judgment,  decree  or
order would become final on abatement of  the  appeal.   The  Bench  further
proceeded to state that regard  being  had  to  the  same,  the  legislature
intended that not only the appeal or revision would abate but the  judgment,
order or decree against which the appeal is pending would  also  become  non
est as they would also abate and that would leave consolidation  authorities
free to adjudicate the claims of title or other rights or interest  in  land
involved in consolidation.

28.   At this juncture, it is seemly to note that a reference  was  made  to
the decisions in Ram Adhar Singh (supra) and Chattar Singh  (supra).   After
analyzing  the  ratio  laid  down  therein,  this  court  adverted  to   the
pronouncement in Satyanarayan Prasad Sah (supra) and proceeded to  state  as
follows: -
           “Both the aforementioned decisions were noticed in  Satyanarayan
           Prasad Sah v. State of Bihar (supra).  In  that  case  upon  the
           issue of a notification under Section 3 of the  Act  at  a  time
           when the matter was pending in the High Court an order was  made
           under Section 4(c) abating the proceeding as also the suit  from
           which the proceeding arose. Writ petitions were  filed  in  this
           Court under Article  32  of  the  Constitution  questioning  the
           constitutional validity  of  Section  4  of  the  Act  as  being
           violative of Articles 14  and  19  of  the  Constitution.  After
           repelling the challenge to the vires of Section  4,  this  Court
           affirming the decisions in Ram Adhar Singh (supra)  and  Chattar
           Singh (supra) cases, held that may be that the High Court should
           not have nullified the decree of the trial court but should have
           merely declared that the  proceeding  stood  abated  which  this
           Court understood to mean that the civil proceeding  comes  to  a
           naught. In other words, the proceedings  from  its  commencement
           abate and no decision in the proceeding at any stage would  have
           any impact on the adjudication of claims by  the  parties  under
           the Act.”
                                                         [Emphasis supplied]


After so holding, the Bench ruled thus: -

           “Both on principle and precedent it is crystal clear that  where
           a notification is issued bringing the land involved in a dispute
           in the civil proceeding under a  scheme  of  consolidation,  the
           proceedings pending in the  civil  court  either  in  the  trial
           Court, appeal or revision, shall abate as a consequence  ensuing
           upon the issue of a notification and  the  effect  of  abatement
           would be that the civil proceeding as a whole would  come  to  a
           naught.  Therefore, the order of the High Court impugned in this
           appeal is legal and  valid  so  far  as  it  not  only  directed
           abatement of the appeal pending before the High Court  but  also
           abating the judgments and decrees of the  trial  Court  and  the
           first appellate Court because the entire civil  proceeding  came
           to naught.”


      At this juncture, we may hasten to clarify  that  we  have  reproduced
the aforesaid passages in extenso as this Court has succinctly  stated  that
not only there is abatement of appeal pending before  the  High  Court,  but
also of the proceedings before trial court and of the first appellate  court
because the entire civil proceeding comes to a naught as that is the  effect
of Section 4(c) which deals  with  the  effect  of  the  notification  under
Section 3(1) of the Act.

29.    At this juncture, we think it profitable to refer  to  a  three-Judge
Bench  decision  in  Mahendra  Saree  Emporium  (II)   v.   G.V.   Srinivasa
Murthy[10].  The Court was dealing with the effect and  impact  of  Sections
69 and 70 of the Karnataka Rent Act, 1999 which had  come  into  force  with
effect from 31.12.1999 after repeal  of  the  Karnataka  Rent  Control  Act,
1961.  This Court addressed to the legislative scheme under Sections 69  and
70 and the applicability of Clauses  (b)  and  (c)  of  sub-section  (2)  of
Section 70 of the 1999 Act to the proceedings pending before this  Court  in
exercise of the jurisdiction conferred by Article 136 of  the  Constitution.
It was treated to be a plenary power and eventually held that  in  spite  of
old 1961 Act having been repealed by  the  new  Act,  i.e.,  1999  Act,  the
appeal preferred by special leave under  Article  136  of  the  Constitution
does not abate and survives for adjudication on merits.  It is  apposite  to
note that as regards the plea of  abatement of the appeal certain  decisions
under the 1956 Act and 1953  Act  were  placed  reliance  upon.   The  Bench
referred to the concept of statutory  abatement  and  upon  perusal  of  the
decisions in Ram Adhar (supra), Chattar Singh (supra),  Satyanarayan  Prasad
Sah (supra) and Mst. Bibi Rahmani  Khatoon  (supra)  opined  that  the  said
authorities dealt with statutory abatement consequent  upon  a  notification
under the State consolidation of holding legislation having been issued.  It
was  ruled  that  in  the  said  decisions  the  provisions  of  the   State
legislation which came up for consideration of the Court  provided  for  the
original case, wherefrom the subsequent proceedings had  originated,  itself
to stand abated on the  commencement  of  such  legislation  and/or  on  the
issuance of the requisite notification thereunder,  without  regard  to  the
stage at which the proceedings were pending. It was held that appeal  was  a
continuation of the suit and inasmuch as the local law  made  provision  for
an effective alternative remedy to be pursued before an exclusive  forum  to
redeem the grievance raised before the court, the local law had  the  effect
of terminating and nullifying the initiation of the proceedings itself  and,
therefore, nothing remained for the court to adjudicate upon in  the  appeal
which was rendered infructuous.

30.   From the aforesaid enunciation of law it is crystal clear that once  a
notification has been published under Section 3 of the Act, every  suit  and
proceeding in respect of declaration of  rights  or  interest  in  any  land
lying in areas or for declaration or adjudication of  any  other  rights  in
regard to which proceeding can or ought to be taken under  the  Act  pending
before any court or authority whether of the first instance  or  of  appeal,
reference or revision, shall, on order being passed in that  behalf  by  the
court or authority before whom such suit  or  proceeding  is  pending  shall
stand abated with a view to ensure  the  jurisdiction   of  the  authorities
under the Consolidation Act remains unhampered and the said authorities  are
not obstructed by the proceedings in civil courts and  their  decisions  are
not impeded by the decisions of the civil courts.  It  is  also  vivid  that
the purpose  of  the  scheme  of  consolidation  is  to  avoid  conflict  of
jurisdiction  in  order  to  confer  jurisdiction   on   the   consolidation
authorities who are required to exclusively examine the rival claims of  the
parties.  Apart from that there is conceptual difference  between  statutory
abatement and abatement under the Code of Civil Procedure.  On the basis  of
a statutory abatement,  the  whole  proceeding  from  its  inception  stands
abated because the local law has provided an  effective  alternative  remedy
to be perused before an exclusive  forum  to  remedy  the  grievance  raised
before the court.   It has  been  further  pronounced  by  this  Court  that
nothing remains to be adjudicated before the civil court and it  is  apt  to
note in the case of Satyanarayan  Prasad Sah (supra)  this  Court  had  held
that the High Court should not have nullified the decree of the trial  court
but should have declared that the proceedings stood abated which meant  that
civil proceedings came to a naught, that is to  say,  the  proceedings  from
its commencement stood abated.

31.   It is interesting to note that though the decision in Raja  Mahto  and
Another (supra) referred to the decision in Satyanarayan Prasad Sah  (supra)
yet wrongly applied the ratio by giving an opinion that  the  second  appeal
pending before the court had abated but the  preliminary  decree  passed  in
suits and both the appeals had not abated.  In Dr.  Jagdish  Prasad  (supra)
the learned Judge who authored  the  judgment  in  Raja  Mahto  and  Another
(supra) sitting in the Division Bench in a Miscellaneous  Appeal  which  was
an appeal under Order XLIII of the Code  of  Civil  Procedure  again  opined
that  a  suit,  appeal,  reference  or  revision  would  abate   neither   a
preliminary decree nor a final decree would abate.   Be  it  noted,  in  the
said case the Division Bench expressed the view  that  this  Court  in  Mst.
Bibi Rahmani Khatoon  (supra) had not adverted with the  view  expressed  in
Satyanaryan Prasad Sah  (supra) and on that foundation reiterated  that  the
suit comes to an end when a preliminary decree is passed for the purpose  of
1956 Act.  It is also stated therein neither  a  preliminary  decree  nor  a
final decree would  abate  under  Section  4  (c).   For  the  said  purpose
reliance was placed on a  Full  Bench  decision  of  Orissa  High  Court  in
Srinibas Jena & Ors. (supra).

32.   At this stage, it is condign to clarify that the High Court  of  Patna
in Dr. Jagdish Prasad (supra) and Raja Mahto and  Another(supra)   had  read
the judgment of this Court absolutely erroneously.   It  has  been  held  by
this Court that the entire civil proceeding  from  its  commencement  stands
abated and it comes to a naught.  In  Satynaryan  Prasad  Sah  (supra)  this
Court had found an error in the decision of the  High  Court  in  nullifying
the decree.  It was explained in Mst. Bibi Rahmani  Khatoon’s  (supra)  case
that what is the impact when a scheme  of  a  consolidation  is  undertaken.
This Court had referred  to  the  pronouncement  in  Satynaryan  Prasad  Sah
(supra) and stated both in principle and precedent it is clear that where  a
notification is issued bringing the land involved in a dispute in the  civil
proceeding under a scheme of consolidation, the  proceeding  pending  before
the civil court either in trial court, appeal or revision shall abate  as  a
consequence ensuing upon  the  issue  of  notification  and  the  effect  of
abatement would be that the civil proceeding as a whole come  to  a  naught.
To elaborate not only the judgment and decrees would become extinct but  the
entire civil proceeding would come to a naught.

33.   Thus, the view expressed by the High Court in the aforesaid  judgments
that appeal may abate but the decree would not abate is  not  correct,  more
so, when the preliminary decree is under challenge in appeal.  In  the  case
at hand, judgment and decree passed by the trial court was assailed  in  the
title appeal.  Though a petition was filed under Section 4(c) of the Act  no
order was passed thereon, yet the appeal  was  permitted  to  be  withdrawn.
Challenge being made in the civil revision the High Court had  remanded  the
matter directing the appeal to be restored to file with a further  direction
that the matter would be dealt with on merits including  the  competence  of
the court to hear the appeal.  Despite the remit the  trial  court  did  not
take note of the petition filed by the appellant under Section 4(c)  of  the
Act, but observed that they are not interested to  contest  the  appeal  and
accordingly directed the appeal stood abated  because  of  non-substitution.
This order shows total non application of mind and in a way paving the  path
of travesty of justice.  As is evincible the consolidation  proceedings  had
continued and at one stage the authorities were relying on the  findings  of
civil court and  at  some  other  ignoring  the  same.   Eventually,  as  is
manifest, the matter travelled to the High Court in  a  writ  petition.  The
learned  single  Judge  ruled  that  the  consolidation   authorities   were
justified in relying on the findings of civil court.

34.    We may hasten  to  add  that  some  evidence  was  adduced  and  some
documents were filed before  the  consolidation  authorities  to  substitute
their respective claims as regards status and their  respective  shares  but
the whole issue, as is demonstrable, has turned on reliance on the  findings
recorded by the civil court.

35.   The question that emanates for consideration if the appeal which is  a
continuation of suit had abated  whether  findings  recorded  therein  could
have been relied upon.  We have noted that in the cases of  Raja  Mahto  and
Another(supra) and Dr. Jagdish Prasad  (supra) the High Court of  Patna  had
taken a view that on issuance of notification under Section  3  of  the  Act
the suit or appeal would abate but neither the preliminary  decree  nor  the
final decree would abate.  For the said purpose inspiration had  been  drawn
from Srinibas Jena & Ors. (supra) a decision rendered by the Full  Bench  of
the High Court of Orissa.  In the Full Bench decision of the High  Court  of
Orissa, the preliminary decree was allowed to attain  finality  and  nothing
remained to be adjudicated.  There  is  a  distinction  between  preliminary
decree and  the  final  decree.   Recently  in  Bimal  Kumar  &  Another  v.
Shakuntala Debi & Others[11] this Court after referring to the decisions  in
Rachakonda  Venkat  Rao  And  Others  v.  R.  Satya  Bai  (D)  by  L.R.  And
Another[12], Muzaffar Husain  v.  Sharafat  Hussain[13],  Raghubir  Sahu  v.
Ajodhya Sahu[14], Renu Devi v. Mahendra  Singh  and  others[15],  has  ruled
thus:-

           “A preliminary decree is  one  which  declares  the  rights  and
           liabilities of the parties  leaving  the  actual  result  to  be
           worked out in further proceedings.  Then, as  a  result  of  the
           further inquiries conducted pursuant to the preliminary  decree,
           the rights of the parties are finally determined and a decree is
           passed in accordance with such determination, which is the final
           decree.    Thus,   fundamentally,   the   distinction    between
           preliminary and final  decree  is  that:  a  preliminary  decree
           merely declares the rights and shares of the parties and  leaves
           room for some further inquiry to be held and conducted  pursuant
           to the directions made in the preliminary decree  which  inquiry
           having been conducted and the  rights  of  the  parties  finally
           determined a decree incorporating such determination needs to be
           drawn up which is the final decree.”



36.   The Full Bench was dealing with an appeal directed against  the  final
decree for partition.  The question before the Full Bench was whether  under
Section 4(4) of the Orissa  Consolidation  of  Holdings  and  Prevention  of
Administration of Land Act, 1972 (for short `the 1972 Act’) a  final  decree
stood abated.  The Full Bench referred  to  the  notification  issued  under
Section 3(1) of the 1972 Act, scanned the language employed  in  sub-section
(4) of Section 4 and came to hold that  a final decree proceeding cannot  be
characterized as a suit or a proceeding for  right,  title  or  interest  in
respect of any land.   It has been opined there that Section 4(4)  does  not
include an appeal arising out of a  final  decree  as  the  same  would  not
declare any right, title or interest of the parties but  deal  with  certain
matters pertaining to what  has  already  been  declared.   Pendency  of  an
appeal against the final  decree  cannot  take  away  the  finality  of  the
preliminary  decree  which  has  already  declared  the  rights,  title  and
interest of the parties.  We may repeat for clarity that in the  said  case,
the preliminary decree passed in the suit had become final  as  it  was  not
challenged by way  of  an  appeal.   Thus,  the  factual  matrix  was  quite
different.  Suffice it to say that in the present case the title appeal  was
pending against the preliminary decree  and  an  application  under  Section
4(c) had been preferred.  It would have been advisable on the  part  of  the
appellate court to record a finding that the entire proceeding of the  civil
suit stood abated.  Unfortunately, the appellate  court  directed  abatement
because of non-substitution of the legal heirs of one  of  the  respondents.
We are conscious that an order is to  be  passed  on  an  application  filed
under Section 4 (c) of the Act, but we do not intend to relegate the  matter
to that stage as it is obvious that in the suit, right, title  and  interest
and status were involved which do come within the scheme  of  consolidation.
Hence, the suit as well as  the  appeal  abated  and  resultantly  the  very
commencement of the civil  proceeding  came  to  a  naught  and,  therefore,
findings recorded in the said proceeding became extinct.  The learned  Judge
dealing with the writ petition as well as the learned  Judges  deciding  the
intra-court appeal did not appreciate the  lis  in  proper  perspective  and
opined that the reliance on the findings recorded by the civil court by  the
revisional authority under the 1956 Act could  not  be  faulted.   The  said
conclusion is wholly erroneous and deserves to be overturned and we do so.

37.   Consequently, the appeal is allowed, the orders passed by the learned
single Judge as well as of the Division Bench are set aside and the  matter
is remanded to the file of the learned single Judge to decide the matter on
merits on the basis  of  the  material  brought  before  the  Consolidation
Authorities.  We repeat at  the  cost  of   repetition  that  none  of  the
findings recorded by the civil court shall be taken aid of.  There shall be
no order as to costs.

                                                             ……………………………….J.
                            [K. S. Radhakrishnan]



                                                             ……………………………….J.
                                                     [Dipak Misra]


New Delhi;
October 05, 2012
-----------------------
[1]     AIR 1968 SC 714
[2]    (1975) 4 SCC 457
[3]    1982 PLJR 392
[4]    (1980) Supp SCC 474
[5]    (1981) 3 SCC 173
[6]     1982 BBCJ-1
[7]    1981 BBCJ 413
[8]    AIR 1981 Orissa 1 (F.B.)
[9]    AIR 1973 SC 2451
[10]   (2005) 1 SCC 481
[11]   (2012) 3 SCC 548
[12]   AIR 2003 SC 3322
[13]   AIR 1933 Oudh 562
[14]   AIR 1945  Pat 482
[15]   AIR 2003 SC 1608

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