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1982 DIGILAW 70 (PAT)

Raja Mahto v. Mangal Mahto

1982-05-18

B.P.JHA

body1982
Judgment 1. I shall dispose of these two appeals, namely, Second Appeals Nos.289 and 290 of 1976, by a common judgement as these two appeals arise out of a common judgement passed by the Civil Court. 2. Title Suit No.87/76 of 1961-62 was filed for a declaration of title and recovery of possession and Title Suit No.17/24 of 1963-66 relates to partition. Both the suits were tried together and one judgement was delivered by the trial Court and by the appellate Court. In this Court, against the judgement of the appellate Court, these two appeals viz., Second Appeals Nos.289 and 290 of 1976, have been filed. One Mangal Mahto, respondent in both the appeals, has filed an application to the effect that a notification has been published under Sec.3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act). It is, therefore, stated in the supplementary affidavit that the suits and the appeals abated under Sec. 4(c) of the Act. 3. It is, therefore, relevant to quote Sec. 4(c) of the Act, which runs thus :- "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 ha 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." On a perusal of this section, it is clear that the abatement takes place in respect of a proceeding or a suit, pending before the Court with respect to declaration of title or interest in any land where consolidation proceeding is going on. Sec. 4(c) of the Act also provides that suit, appeal or revision will abate. On a perusal of this section, it is clear that neither the decree or preliminary decree nor final decree will abate as there is no such provision under Sec. 4(c) of the Act. Sec. 4(c) of the Act envisages abatement of a suit, appeal, reference or revision. Sec. 4(c) of the Act does not state about the abatement of decree or preliminary decree or final decree. Sec. 4(c) of the Act envisages abatement of a suit, appeal, reference or revision. Sec. 4(c) of the Act does not state about the abatement of decree or preliminary decree or final decree. This view has been upheld by a decision of the Division Bench of this Court in the case of Jagdish Prasad V/s. Satya Narain Singh, 1982 BBCJ (HC) 1 : ( AIR 1982 Pat 37 ). As a single Judge, I am bound to follow the decision of the Division Bench. 4. Learned counsel for the appellants bas relied on a decision in Ram Adhar Singh V/s. Ramroop Singh ( AIR 1968 SC 714 ). It is stated in this decision that under S.4(c) of the Act, the suit or appeal will abate. This decision does not help the learned counsel for the appellants. Learned counsel for the appellants has also relied on a decision of the Supreme Court in Gorakh Nath Dubey V/s. Hari Narain Singh ( AIR 1973 SC 2451 ). In this case, their Lordships were pleased to set aside the decree of the High Court in view of the application of the principle of abatement. This is a judgement of two Hon ble Judges, namely, the Hon ble Mr. Justice K.K. Mathew and the Hon ble Mr. Justice M.H. Beg. The views of these two Hon ble Judges were not followed by the three Hon ble Judges in Satyanarayan Prasad V/s. State of Bihar ( AIR 1980 SC 2051 ). Their Lordships quoted in para 2 of the judgement as follows :- "True, the petitioner is right in saying 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 of course, means that the civil proceeding comes to nought." Therefore, the judgement of the three Hon ble Judges of the Supreme Court were of the opinion that the decree passed by the trial Court is not nullified under Sec. 4(c) of the Act I am bound to follow the decision of the three Hon ble Judges of the Supreme Court. 5 I am, therefore, of the opinion that under Sec. 4(c) of the Act, the suit, appeal, reference or revision abates and not the decree or preliminary or final decree abates. 6. 5 I am, therefore, of the opinion that under Sec. 4(c) of the Act, the suit, appeal, reference or revision abates and not the decree or preliminary or final decree abates. 6. In the result, suits and both these appeals, viz., Second Appeals Nos.289 and 290 of 1976, have abated before this Court. The decree or preliminary decree passed in suits and in both the appeals have not abated.