Ramanand Singh v. Bidyapati Devi — 1983 DIGILAW 271 (PAT)

JUDGMENT P.S. Mishra. J. This appeal by the defendants in a suit for partition was filed in this Court on 26-2-1975. Its records suffered under the floods of August, 1975 and after re-constructing the records, it could be heard under Order 41 Rule 11 of the Code of Civil Procedure only on 10-11-1980. L.M. Sharma, J while admitting the appeal noticed as many as four questions of law, but all relating to the merit of the case. The appellants had, however, filed an application under section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act, No. XXII of 1956) (hereinafter to be referred to as the Act). A question of law directly arising in the, appeal on the basis of the said petition, however, was not formulated at the time of admission of the appeal. Later, however, when this application was placed for orders before L.M. Sharma, J, in view of the fact that there has been a counter affidavit filed by the plaintiffs-respondents, it was ordered to be taken up at the time of final hearing of the appeal. 2. Learned counsel for the appellants has pressed his application under section 4(c) of the Act, at the first instance as in the event of his succeeding, the suit, the appeal in the Court below as well as the, appeal in this Court shall stand abated. No further investigation of the questions involved in the appeal, therefore, shall be necessary. 3. Learned counsel for the appellants has pressed his application under section 4(c) of the Act, at the first instance as in the event of his succeeding, the suit, the appeal in the Court below as well as the, appeal in this Court shall stand abated. No further investigation of the questions involved in the appeal, therefore, shall be necessary. 3. Section 4(c) of the Act, runs as extracted below: "(c) every proceeding for the correction of records and every suit and proceeding 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: Provided that if the State Government empowers any other officer appointed under this Act, to dispose of any proceeding relating' to survey settlement operations under the provisions of Chapter x of the Bihar Tenancy Act, 1885 (Bihar Act, viii, 1885), or Chapter 12 of Chotanagpur Tenancy Act, 1908 (Bengal Act, 1908) or Santhal Parganas Settlement Manual, 1872 (Manual 3, 1872) and transfer such proceeding to such officer for disposal, then the proceeding shall not abate or shall not be considered to have been abated: Provided also that no such order shall be passed without giving to the parties notice by post or in-any other manner that may be convenient and after giving them an opportunity of being heard: 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 provision of this Act, and the rules made thereunder; Provided that the State Government may, by notification in the Official gazette, exempt any such proceeding, suit, appeal, reference or revision, or any class of them, if in its opinion their abatement is not in public interest, and is not necessary for the purposes of this Act: Provided further that nothing in this section shall apply to any proceedings under Chapter XI and XII of the Code of Criminal Procedure, 1898 (Act v of 1898), section 48E of the Bihar Tenancy Act, (Act viii of 1885) and the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Act XII of 1962). 4. Title Partition Suit No. 18 of 1967 was filed in the year 1967. It was disposed of by a judgment and decree dated 30-9-1972. Respondent No.1, who is plaintiff No. 2 in the original suit, filed Title Appeal No. 179 of 1972 on 4-12-1972 which was finally disposed of by the learned Additional District judge 3rd Court, Arrah, on 18-1-1975. During the pendency of the appeal before him, however, a notification under section 3(1) of the Act, was published on 10-12-1972. No application of abatement of the appeal in the court below was filed by either party. After the disposal of the appeal, the appellants filed this appeal on 26-2-1975 before this Court. For all these years, only because the parties did not take any initiative the question as to the abatement remained pending. Today, however, is the day when this has to be heard and decided. 5. There is no dispute that the suit in question relates to agricultural holdings including some homestead lands with houses thereon. Homesteads involved in the suit are Khesra No. 747 of Khata No. 138 of Mauza Chakia and plot No. 148, which is a mistake for plot No. 140 and plot No. 111 of Mauza Balua per Exts. 2/J and 2/F are cadastral survey khatians. In these khatians, the lands in the homesteads are described as Quaimi Belagan of the raiyat. There has been some dispute about cattle also. Learned counsel appearing for both the parties agree that there is no further need of any division of the cattle as they no longer exist. The suit, therefore, (and consequently the appeal) essentially is a suit for partition of the agricultural holdings including, of course, the aforesaid homestead lands. 6. It is evident that 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 which is covered by a declaration under section 3 (1) of the Act, by notification in the official gazette has got to abate. 'Land' has been defined under section 2 (9) of the Act, to mean agricultural land, and includes horticultural land, Kharhur land with bamboo clumps pasture land, cultivable waste land, homesteads, tanks, wells and water channels. All homesteads, therefore, are not excluded from the operation of the Act. 'Land' has been defined under section 2 (9) of the Act, to mean agricultural land, and includes horticultural land, Kharhur land with bamboo clumps pasture land, cultivable waste land, homesteads, tanks, wells and water channels. All homesteads, therefore, are not excluded from the operation of the Act. A homestead, which may be used for agricultural purposes has to fall under section 4 (c) of the Act. In Ram Pratap Mahto & others Vs. Diplal Mahto and other this Court considered the meaning of homestead in relation to the provision for the abatement under section 4 (c) of the Act, and said; "thus the expression homestead would have the same meaning as in the respective tenancy laws, depending on where the land is situate. Under the tenancy law homestead has an accepted connotation. Without trying to be exhaustive one could say that homesteads are connected with cultivation. Thus it would not be correct to say that homesteads within the meaning scribable to them under the tenancy law, have nothing to do or are unconnected with the cultivation of the lands. The second reason is, as already stated that when the language is clear, unambiguous, specific it would not be permissible to omit or obliterate the expression homestead from the definition of land. It must, however, be made clear that if a building or structure does not come within the meaning of the expression homestead it cannot be said to be covered by the definition of the expression 'land'. To illustrate if a person who is not an agriculturist, has a house, unconnected with agricultural operations, such a house or building cannot be covered by section 4 (c) of the Act. Further where even an agriculturist has two houses one connected with agricultural operation and other unconnected therewith, it is the former which can come under the definition of 'homestead'. The reason is that the latter house or building is not homestead within the meaning of law. It must also be clarified that where a controversy arises whether a building is homestead or not, the court would have to decide this controversy before applying the provisions of section 4 (c) of the Act." 7. The reason is that the latter house or building is not homestead within the meaning of law. It must also be clarified that where a controversy arises whether a building is homestead or not, the court would have to decide this controversy before applying the provisions of section 4 (c) of the Act." 7. Learned counsel for the appellants has brought to my notice rule 278 as contained in Chapter VI of the Technical Rules of the settlement department of the State which is applied in connection with the settlements under the Bihar Tenancy Act. This rule states that the status of tenants of homestead lands requires special attention. If the raiyat holds his homestead as a part of his holding, separately assessed to rent or not, the status of the homestead follows that of the rest of the holding, and both are included in the same Khatian. But, where homestead land is held otherwise than as part of a raiyati holding, the provisions of section 182 of the Bihar Tenancy Act, must be applied. This rule has also referred to a distinction between persons who are raiyats and persons who are not raiyats and said that if the tenant is an agricultural raiyat, he is entitled to acquire occupancy rights in his homestead land, but for such occupancy rights it is necessary that he should be of the agricultural class and who holds his homestead as a raiyat, that is for agricultural purposes, and not for other purposes, such as trade or exercise of a profession or non-agricultural calling. According to the learned counsel there is no manner of doubt, in view of the survey entry in the Khatians that the aforesaid two holdings, although homesteads, are homesteads of a raiyat and accordingly are homesteads for agricultural purposes' and not for other purposes such as trade or the exercise of a profession or non-agricultural calling. He has drawn my attention to the statements made in paragraphs 8 and 9 of the petition in which he has asserted that late Parmanand Singh, the recorded 'tenant, was an agriculturist by profession, so are the appellants and the respondents, these homesteads are not used for any trade or business un-connected with agriculture, and the absence of specific denial of these facts in the counter affidavit filed by the contesting respondents. On these facts, he has submitted that there is no other alternative, but to hold that the suit and the appeal abated when the notification under section 3 (1) of the Act, was published. He has placed reliance upon the case of Chandra Shekhar Singh and others Vs. Ramlakhan Singh and others in which it has been held that the language of section 4 (o) of the Act, expresses In unequivocal terms the intention of the legislature that from the date specified in the notification till the close of the consolidation operation every suit in' respect of declaration of right or interest in any land lying in the area or for declaration or adjudication of interest and right in regard to which can or ought to be taken under this Act, shall stand abated. 8. The respondents have not denied the allegation of the appellants that the homesteads involved in the suit are used for agricultural purposes. The evidence, meagre though it is, is sufficient for suggesting that even the homestead lands involved in the suit satisfy the definition of 'land' under the Act. I accordingly hold that the "lands "involved in the suit are such that they satisfy the definition of the 'land' under the Act. 9. A suit arising for a claim of title and partition of such properties is undoubtedly a suit for interest in the land which shall abate as provided under section 4 (c) of the Act. 10. From the facts stated above, it is obvious that this abatement shall apply with effect from 10.12.1972, that is to say the date of the publication of the declaration under section 3 (1) of the Act, and shall remain operative until the expiry of the proceedings under the Act. There is no dispute as to the fact that the consolidation proceedings have not yet concluded. As the suit and the appeal in the court below abated with effect from 10.12.1972, it is obvious, the present appeal shall also be deemed to have abated accordingly. 11. There is no dispute as to the fact that the consolidation proceedings have not yet concluded. As the suit and the appeal in the court below abated with effect from 10.12.1972, it is obvious, the present appeal shall also be deemed to have abated accordingly. 11. To conclude, the suit, that is to say, Title Suit No. 18 of 1967 of the court of the 1st Subordinate Judge, Arrah the appeal, that is to say, Title Appeal No. 170 of 1972 of the court of Additional District Judge 3rd Court, Arrah and this appeal being Second Appeal No. 80 of 1975 have all abated and shall remain so abated until the conclusion of the consolidation proceedings. This appeal is accordingly disposed of. On the facts and in the circumstances of the case, there will be an order as to costs. Appeal abates.