Land Laws - Bihar Consolidation of Holdings and Prevention of Fragmentation
Act, 1956 - ss.3 and 4(c) - Partition suit - Dismissed by civil court -
Title appeal - During pendency thereof, notification issued u/s.3 of the
1956 Act - Consequence - Held: Once a notification has been published
u/s.3, 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 consolidation authorities 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 -
Nothing remains to be adjudicated before the civil court - In the present
case, title appeal was pending when notification was issued u/s.3 of the
1956 Act, whereafter an application u/s.4(c) of the 1956 Act was preferred
to the effect that the appeal and the suit had abated by statutory
operation of law - 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 - But the appellate court directed abatement because of
non-substitution of the legal heirs of one of the respondents - 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 - High Court did not appreciate the lis
in proper perspective and held that reliance on the findings recorded by
the civil court by the revisional consolidation authority under the 1956
Act could not be faulted - Said conclusion wholly erroneous - Matter
remanded to High Court to decide the matter on merits on basis of the
material brought before the Consolidation Authorities.
Abatement - Conceptual difference between statutory abatement and abatement
under the CPC.
Partition suit was filed by the father of the appellant No. 1 and others.
The trial court dismissed the suit holding that it was defective for non-
joinder of parties and further that the stand of the appellants that `U'
was the daughter of `A' did not appear to be correct. The appellants
preferred title appeals. Meanwhile, the State Government meanwhile issued
notification under Section 3 of Bihar Consolidation of Holdings and
Prevention of Fragmentation Act, 1956 bringing the area under consolidation
scheme. Before the lower appellate court, an application 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 lower appellate court did not
consider the application but held 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 of legal representative had
been rejected. However, it allowed the appeal to be withdrawn. In revision,
the single Judge of the High Court 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 afresh. Thereafter, Lower Appellate Court disposed
of the appeal holding that appellants were not interested to contest appeal
and that the title appeal stood abated.
Meanwhile, in the consolidation proceedings, the Director, Consolidation
held that `U' was the daughter of `D' and not of `A'. The said conclusion
was arrived on the basis of the findings recorded by the civil court. The
order was affirmed by the single Judge of High Court. In LPA, the Division
Bench held that as the title appeal had abated for non-prosecution by the
appellants and as the consolidation authorities had taken note of the
findings recorded by the civil court, the same was rightly not interfered
with by the single Judge.
The appellant contended before this Court that the High Court had fallen
into error by concurring with the view expressed by the authority below
that `U' was the daughter of `D' 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 was urged
that the High Court committed a grave factual error by expressing the view
that the appeal had abated because of the non-substitution of legal
representative and further 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.
Allowing the appeal, the Court
HELD:1.1. Once a notification has been published under Section 3 of the
Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956,
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. 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.
Nothing remains to be adjudicated before the civil court [Para 30]
1.2. 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 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. 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, the matter travelled to the High Court in a
writ petition. The single Judge ruled that the consolidation authorities
were justified in relying on the findings of civil court. [Para 33]
1.3. 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. But the appellate court directed abatement because of non-
substitution of the legal heirs of one of the respondents. 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 Judge dealing with the writ petition as
well as the 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. [Para 36]
1.4. The orders passed by the single Judge as well as of the Division Bench
are set aside and the matter is remanded to the file of the single Judge to
decide the matter on merits on the basis of the material brought before the
Consolidation Authorities. [Para 37]
Dr. Jagdish Prasad @ Jagdish Prasad Gupta v. Sardar Satya Narain Singh &
Ors. 1982 BBCJ-1 and Raja Mahto and Another v. Mangal Mahto and others 1982
PLJR 392 - not approved.
Srinibas Jena & ors. v. Janardan Jena & ors. AIR 1981 Orissa 1 (F.B.) -
distinguished.
Ram Adhar Singh v. Ramroop Singh and Others AIR 1968 SC 714: 1968 SCR 95;
Chattar Singh and others. v. Thakur Prasad Singh (1975) 4 SCC 457;
Satyanarayan Prasad Sah and others v. State of Bihar (1980) Supp SCC 474;
Mst. Bibi Rahmani Khatoon and others v. Harkoo Gope and others (1981) 3
SCC 173; 1981 (3) SCR 553;
Nathuni Ram & ors. v. Smt. Khira Devi & ors. 1981 BBCJ 413; Gorakh Nath
Dube v. Hari Nath Singh AIR 1973 SC 2451: 1974 (1) SCR 339; Mahendra Saree
Emporium (II) v. G.V. Srinivasa Murthy (2005) 1 SCC 481: 2004 (3) Suppl.
SCR 931; Bimal Kumar & Another v. Shakuntala Debi & Others (2012) 3 SCC
548; Rachakonda Venkat Rao And Others v. R. Satya Bai (D) by L.R. And
Another AIR 2003 SC 3322: 2003 (3) Suppl. SCR 629; Muzaffar Husain v.
Sharafat Hussain AIR 1933 Oudh 562 Raghubir Sahu v. Ajodhya Sahu AIR 1945
Pat 482 and Renu Devi v. Mahendra Singh and others AIR 2003 SC 1608: 2003
(1) SCR 820 - referred to.
Case Law Reference
1968 SCR 95 referred to Paras 15,20,21,
23,28,29
(1975) 4 SCC 457 referred to Para 15,23,28,291982
PLJR 392 not approved Paras 16,20,31,
32,35
(1980) Supp SCC 474 referred to Paras 16,19,20,
24,28,29-32
1981 (3) SCR 553 referred to Paras 16,19,25,
29,31,32
1982 BBCJ-1 not approved Paras 19,31,32
1981 BBCJ 413 referred to Para 19
AIR 1981 Orissa 1 (F.B) distinguished Paras 19,31,35
1974 (1) SCR 339 referred to Para 20
2004 (3) Suppl. SCR 931 referred to Para 29
(2012) 3 SCC 548 referred to Para 35
2003 (3) Suppl. SCR 629 referred to Para 35
AIR 1933 Oudh 562 referred to Para 35
AIR 1945 Pat 482 referred to Para 35
2003 (1) SCR 820 referred to Para 35
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
Act, 1956 - ss.3 and 4(c) - Partition suit - Dismissed by civil court -
Title appeal - During pendency thereof, notification issued u/s.3 of the
1956 Act - Consequence - Held: Once a notification has been published
u/s.3, 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 consolidation authorities 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 -
Nothing remains to be adjudicated before the civil court - In the present
case, title appeal was pending when notification was issued u/s.3 of the
1956 Act, whereafter an application u/s.4(c) of the 1956 Act was preferred
to the effect that the appeal and the suit had abated by statutory
operation of law - 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 - But the appellate court directed abatement because of
non-substitution of the legal heirs of one of the respondents - 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 - High Court did not appreciate the lis
in proper perspective and held that reliance on the findings recorded by
the civil court by the revisional consolidation authority under the 1956
Act could not be faulted - Said conclusion wholly erroneous - Matter
remanded to High Court to decide the matter on merits on basis of the
material brought before the Consolidation Authorities.
Abatement - Conceptual difference between statutory abatement and abatement
under the CPC.
Partition suit was filed by the father of the appellant No. 1 and others.
The trial court dismissed the suit holding that it was defective for non-
joinder of parties and further that the stand of the appellants that `U'
was the daughter of `A' did not appear to be correct. The appellants
preferred title appeals. Meanwhile, the State Government meanwhile issued
notification under Section 3 of Bihar Consolidation of Holdings and
Prevention of Fragmentation Act, 1956 bringing the area under consolidation
scheme. Before the lower appellate court, an application 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 lower appellate court did not
consider the application but held 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 of legal representative had
been rejected. However, it allowed the appeal to be withdrawn. In revision,
the single Judge of the High Court 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 afresh. Thereafter, Lower Appellate Court disposed
of the appeal holding that appellants were not interested to contest appeal
and that the title appeal stood abated.
Meanwhile, in the consolidation proceedings, the Director, Consolidation
held that `U' was the daughter of `D' and not of `A'. The said conclusion
was arrived on the basis of the findings recorded by the civil court. The
order was affirmed by the single Judge of High Court. In LPA, the Division
Bench held that as the title appeal had abated for non-prosecution by the
appellants and as the consolidation authorities had taken note of the
findings recorded by the civil court, the same was rightly not interfered
with by the single Judge.
The appellant contended before this Court that the High Court had fallen
into error by concurring with the view expressed by the authority below
that `U' was the daughter of `D' 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 was urged
that the High Court committed a grave factual error by expressing the view
that the appeal had abated because of the non-substitution of legal
representative and further 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.
Allowing the appeal, the Court
HELD:1.1. Once a notification has been published under Section 3 of the
Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956,
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. 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.
Nothing remains to be adjudicated before the civil court [Para 30]
1.2. 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 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. 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, the matter travelled to the High Court in a
writ petition. The single Judge ruled that the consolidation authorities
were justified in relying on the findings of civil court. [Para 33]
1.3. 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. But the appellate court directed abatement because of non-
substitution of the legal heirs of one of the respondents. 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 Judge dealing with the writ petition as
well as the 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. [Para 36]
1.4. The orders passed by the single Judge as well as of the Division Bench
are set aside and the matter is remanded to the file of the single Judge to
decide the matter on merits on the basis of the material brought before the
Consolidation Authorities. [Para 37]
Dr. Jagdish Prasad @ Jagdish Prasad Gupta v. Sardar Satya Narain Singh &
Ors. 1982 BBCJ-1 and Raja Mahto and Another v. Mangal Mahto and others 1982
PLJR 392 - not approved.
Srinibas Jena & ors. v. Janardan Jena & ors. AIR 1981 Orissa 1 (F.B.) -
distinguished.
Ram Adhar Singh v. Ramroop Singh and Others AIR 1968 SC 714: 1968 SCR 95;
Chattar Singh and others. v. Thakur Prasad Singh (1975) 4 SCC 457;
Satyanarayan Prasad Sah and others v. State of Bihar (1980) Supp SCC 474;
Mst. Bibi Rahmani Khatoon and others v. Harkoo Gope and others (1981) 3
SCC 173; 1981 (3) SCR 553;
Nathuni Ram & ors. v. Smt. Khira Devi & ors. 1981 BBCJ 413; Gorakh Nath
Dube v. Hari Nath Singh AIR 1973 SC 2451: 1974 (1) SCR 339; Mahendra Saree
Emporium (II) v. G.V. Srinivasa Murthy (2005) 1 SCC 481: 2004 (3) Suppl.
SCR 931; Bimal Kumar & Another v. Shakuntala Debi & Others (2012) 3 SCC
548; Rachakonda Venkat Rao And Others v. R. Satya Bai (D) by L.R. And
Another AIR 2003 SC 3322: 2003 (3) Suppl. SCR 629; Muzaffar Husain v.
Sharafat Hussain AIR 1933 Oudh 562 Raghubir Sahu v. Ajodhya Sahu AIR 1945
Pat 482 and Renu Devi v. Mahendra Singh and others AIR 2003 SC 1608: 2003
(1) SCR 820 - referred to.
Case Law Reference
1968 SCR 95 referred to Paras 15,20,21,
23,28,29
(1975) 4 SCC 457 referred to Para 15,23,28,291982
PLJR 392 not approved Paras 16,20,31,
32,35
(1980) Supp SCC 474 referred to Paras 16,19,20,
24,28,29-32
1981 (3) SCR 553 referred to Paras 16,19,25,
29,31,32
1982 BBCJ-1 not approved Paras 19,31,32
1981 BBCJ 413 referred to Para 19
AIR 1981 Orissa 1 (F.B) distinguished Paras 19,31,35
1974 (1) SCR 339 referred to Para 20
2004 (3) Suppl. SCR 931 referred to Para 29
(2012) 3 SCC 548 referred to Para 35
2003 (3) Suppl. SCR 629 referred to Para 35
AIR 1933 Oudh 562 referred to Para 35
AIR 1945 Pat 482 referred to Para 35
2003 (1) SCR 820 referred to Para 35
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
