JUDGMENT : S.S. Sandhawalia, C.J. Whether in a suit for partition the proceedings subsequent to the preliminary decree (which has achieved finality) in pursuance thereof for the preparation of the final decree would be hit and consequently abate under section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter called 'the Act'), is the significant question before this Full Bench on a reference. 2. The facts are not in dispute and lie in a narrow compass. In Title Suit No. 245 of 1964 pending in the court of Sub-Judge, Purnea JUDGMENT : was rendered on the 21st of August, 1970 and a preliminary decree based thereon was duly prepared on the 2nd of September, 1970. It is the admitted position that at that time consolidation proceedings with regard to the suit properties had not at all been initiated. However the proceedings for the preparation of the final decree apparently continued and dragged on. Meanwhile a notification under section 3 of the Act was later duly notified by the State Government. The defendants then filed a petition claiming that the final decree proceedings in the suit would also stand abated under section 4(c) of the Act aforesaid. A rejoinder petition was filed on behalf of the plaintiff on the 22nd of September, 1979 pointing out that the preliminary decree had already been passed and taking the stand that the proceedings for preparation of a final decree in the suit are not hit by section 4 (c) of the Act aforesaid. Firm reliance was placed on the decision in the case of Sheikh Md. Safi v. Abdul Razak (Civil Revision No. 1754 of 1978 decided on 26th July, 1979). 3. The learned Sub-Judge basing himself primarily on the JUDGMENT : aforesaid held that the final decree proceedings in the suit do not come within the mischief of section 4(c) of the Act and rejected the application of the defendants. Being aggrieved thereby the present civil revision has been preferred. 4. This case originally was placed for hearing before a Division Bench. Before it reliance was also placed on behalf of the opposite party on a decision in the case of Nathuni Rai v. Smt. Khira Devi (1981 B.B.C.J. 413). Being aggrieved thereby the present civil revision has been preferred. 4. This case originally was placed for hearing before a Division Bench. Before it reliance was also placed on behalf of the opposite party on a decision in the case of Nathuni Rai v. Smt. Khira Devi (1981 B.B.C.J. 413). However, the correctness of that view was sought to be assailed on the basis of the decision in Satya Narain Sah v. State of Bihar [A.I.R. 1980 S.C. 2051 : 1981 PLJR 220 (SC)] and Mosst. Bibi Rahmani Khatoon v Harkhoo Gope [A.I.R. 1981 S.C. 1450 : 1982 PLJR 59 (SC)]. Expressing some doubt about the correctness of earlier view and noticing the significance of the issue the civil revision was referred to the Full Bench and that is how it is before us now. 5. The controversy herein inevitably revolves round section 4(c) of the Act which may, therefore, be read at the very outset for facility of reference. "4. Effect of notification under section 3(1) of the Act. - Upon the publication of the notification under sub-section (1) of section 2 in the official gazette the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified in the notification till the close of the consolidation operation, ensue in the area to which the notification relates, namely :- x x x x x x (c) every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights of interest in any land lying in the area or for declaration of 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" ..... Pinning himself with some literality on the letter of the law in the provision aforesaid, Mr. T.K. Jha, the learned counsel for the petitioners raised a twin contention. It was argued that in a partition suit the preliminary decree is in no way a final determination of the rights and interest of the parties in the land. Pinning himself with some literality on the letter of the law in the provision aforesaid, Mr. T.K. Jha, the learned counsel for the petitioners raised a twin contention. It was argued that in a partition suit the preliminary decree is in no way a final determination of the rights and interest of the parties in the land. This is so because now a binding precedent in Phoolchand v. Gopal Lal (A.I.R. 1967 S.C. 1470) has laid down that in the event of variation of the rights of parties subsequent to the preliminary decree, a second preliminary decree may also be passed and on the same analogy even a third or fourth preliminary decrees may be well visualised in law. Consequently the submission was that a preliminary decree is in no way final and it is only when the seal is set thereupon by the preparation of the final decree that the whole matter achieves finality and not otherwise and not earlier. Allied thereto is then the technical stand that the language employed in clause (c) is unqualified and unrestricted and declares that every suit and proceeding in respect of the declaration of the rights or interest in any land would stand abated. In sum, the contention is that the suit for partition is in no way over or concluded till the final decree is passed and the proceedings for its preparation are part and parcel thereof and such a suit must consequently abate as a whole by the mandate of law aforesaid. Reliance was primarily on A.I.R. 1967 S.C. 1470 (supra) and further on G. Martha v. B. Pradhan (A.I.R. 1977 Orissa 154) and A.I.R. 1981 S.C. 1450 (supra). 6. Ere I appraise the contention aforesaid, it must perhaps be said at the very outset for the sake of clarity or precedent that herein we are dealing narrowly with the question of suits for partition of immoveable property. Undoubtedly there are other kinds of suit visualised by the Civil Procedure Code wherein also a preliminary and final decrees are passed. However, the discussion herein is confined purely to suits for partition of immoveable property and must not at all be understood to extend beyond the same because different considerations sometimes might well ensue. 7. Now there is no gainsaying the fact that issue is not entirely free from difficulty. However, the discussion herein is confined purely to suits for partition of immoveable property and must not at all be understood to extend beyond the same because different considerations sometimes might well ensue. 7. Now there is no gainsaying the fact that issue is not entirely free from difficulty. As a matter of history one may record that earlier there was a sharp cleavage of opinion in the different High Courts with regard to the fact that whether only one preliminary decree can be passed in a partition suit followed by one final decree thereafter. This conflict has, however, been now set at rest by their Lordships in A.I.R. 1967 S.C. 1470 (supra) holding that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and indeed should pass a second preliminary decree. Even though this issue is now well settled I am inclined to the view that the stand taken on behalf of the petitioners by Mr. T.K. Jha, suffers from falsehood of a logical extreme, and tends to hypertechnicality resting on the letter and dry bones of law whilst ignoring the spirit and flesh thereof. 8. Moving from the firm base that a second or even a third preliminary decree may be possible in a partition suit it and in strictitude it continues till the final decree, the real question is as to the true nature of the proceeding in the interrognum betwixt a preliminary decree (which has achieved finality) and the preparation of the final decree in pursuance thereof. What deserves highlighting herein is that clause (c) of section 4 does not talk of every suit and every proceeding in a vacuum. It does not declare that in every suit or every proceeding shall stand abated consequent to a notification under section 3(1) of the Act. The crucial and the meaningful qualification is that such suit or such proceeding must be for the "declaration of rights or interest in the land" lying in the area under consolidation. This would also take its hue from the subsequent clause of' “declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act”. I may reiterate that the crucial language herein is that clause (c) visualises the determination or adjudication of rights and interest of the parties in the land and their declaration. I may reiterate that the crucial language herein is that clause (c) visualises the determination or adjudication of rights and interest of the parties in the land and their declaration. It is only such suits and proceedings which are mandated for abatement and not others. Therefore, the core question herein is as to what is the true nature of a preliminary decree in a partition suit in contrast with the final decree prepared in pursuance thereof and the scope and character of the proceedings in the interregnum betwixt the two. 9. We may now proceed to first examine the real character of a preliminary decree in a suit for partition of immoveable property. Here what first meets the eye is the Explanation to section 2 (2) of the Code of Civil Procedure which defines a decree. Explanation -"A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final". The crucial words in the above for our purposes are the last namely "it may be partly preliminary and partly final'. Therefore, the mere fact that a decree is labelled as preliminary is in no way conclusive. The law visualises a synthesis in this context and envisages a hybrid. It, therefore, follows that even though in a partition suit where the decree may be named as preliminary it may nevertheless have the attributes of finality as well in certain aspects. It is true that it cannot be executed forthwith as such but so far as the adjudicatory and determinatory process of the rights and interest of the parties is concerned, it might well be final. 10. It is against this background that one may now go on to notice the provision of ORDER :XX Rule 18 of the Code of Civil Procedure. This pertains to the decree in a suit for partition of property or separate possession of shares thereof. Clause (2) of Rule 18 which particularly deals with the preliminary decree is in the following terms:- "18. Decree In suit for partition of property or separate possession of a share therein.- Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then. Clause (2) of Rule 18 which particularly deals with the preliminary decree is in the following terms:- "18. Decree In suit for partition of property or separate possession of a share therein.- Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then. (1) xx xx xx (2) If and in so far as such decree relates to any other immoveable property or to moveable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required." Now an anlaysis of clause (2) clearly project the nature of such a preliminary decree to declare the rights or the several parties interested in the property. When clause (c) of section 4 of the Act talks of suits in respect of the declaration of rights and interest in any land, then it is the preliminary decree which declares such rights of the parties in the said land. Cause (2) aforesaid further warrants the giving of such further direction as may be required in this context. Equally clause (1) of Rule 18 which has not been quoted above, also visualises that the decree shall declare the rights of several parties interested in the property directing further partition or separation to be made by the Collector or any gazetted officer subordinate to the collector in accordance with the provisions of section 5 of the Code. 10. It seems manifest from the aforesaid provisions that in so far as the adjudicatory process of determining and declaring the rights and interest of the parties is concerned in the immoveable property to be partitioned, a preliminary decree has the stamp of finality about it, with the basic qualification that such decree has itself achieved finality, Therefore, an equally important test is, has the preliminary decree itself achieved finality? Reference in this connection may be made to sections 96 and 97 of the Code. The former section provides for appeals from the original decrees passed by any court exercising original jurisdiction. Section 97 is then in the following terms:- "97. Appeal from final decree where no appeal from preliminary decree. Reference in this connection may be made to sections 96 and 97 of the Code. The former section provides for appeals from the original decrees passed by any court exercising original jurisdiction. Section 97 is then in the following terms:- "97. Appeal from final decree where no appeal from preliminary decree. - Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree". By the aforesaid provisions undoubtedly an appeal lies against a preliminary decree straight way even before any final decree has been passed. This in itself is a strong pointer to the fact that because a preliminary decree in this context finally adjudicates and determines the rights and interest of the parties in the property, therefore, the law provides for an appeal against it forthwith. Section 97 then provides that where the decree which has not been appealed against, achieves finality and is immune from any further challenge in any subsequent appeal preferred from the final decree. Therefore, reading sections 2 (2), 54, 96 and 97 and ORDER :XX Rule 18 of the Code together in the peculiar context of a preliminary decree in a suit for partition, it is manifest that the said decree may well be final in so far as the adjudicatory, determinative and the declaratory process of the rights and interest of the parties is concerned. Without being exhaustive a preliminary decree may achieve finality atleast in three clearly instances firstly where no second preliminary decree bas been passed or is contemplated in the proceeding; secondly where no appeal has been preferred from the preliminary decree within the time prescribed and it becomes an immune from challenge under section 97; and thirdly when a preliminary decree has been appealed from and is finally affirmed or modified and consequently merges in such appellate decree. The acid test is whether the preliminary decree has achieved finality in the modes noticed above or any other. Once that test has been passed or crossed then such a preliminary decree determines and declares the rights and interest of the parties in the suit land. The acid test is whether the preliminary decree has achieved finality in the modes noticed above or any other. Once that test has been passed or crossed then such a preliminary decree determines and declares the rights and interest of the parties in the suit land. Till such a preliminary decree is passed, the suit for partition of immoveable property retain its character of being adjudicatory, determinative, and declaratory of the rights and interest of the parties in such property. The true nature and character of the proceedings up to that point are clearly adjudicatory and determinative. The preliminary decree provides clear and distinct watershed in the proceedings in such a suit. 12. In somewhat sharp contrast thereto the final decree proceeding does not originate in itself and follows the earlier preliminary decree passed in the suit. The final decree proceedings start only after adjudication and determination of the rights and interest of the parties in relation to land. As already noticed under the provisions of ORDER :20 rule 18 of the Code of Civil Procedure the preliminary decree declares the rights of the parties interested in the property and thereafter may make further direction therefore. The final decree proceeding is to enforce what has already been decided which may even mean that it excludes declaration of right and interest in the land which has already been declared by the preliminary decree. The final decree proceedings only relates to matters which are related to physical division or what is commonly known here as Takhta bandi but do not relate to the adjudication of any substantive right of the parties as to the title to the properties. Once a preliminary decree has been passed all that remains is the effectuation of such a determination or declaration or rights. 13. Even assuming entirely for the sake of argument (without in the least bolding so) that after the preliminary decree there may also remain some trifling modicum of adjudication of rights and interest by some variation subsequent to the preliminary decree, then also the dominant and subservient test may have to apply on determining the true nature of a final decree. There seems no manner of doubt that the primal or dominant purpose of the preparation of the final decree is the effectuation or execution of the declared rights and interest by the preliminary decree and not the adjudication thereof. There seems no manner of doubt that the primal or dominant purpose of the preparation of the final decree is the effectuation or execution of the declared rights and interest by the preliminary decree and not the adjudication thereof. Even where it becomes necessary it is something entirely ancillary thereto. Therefore viewed from any angle, in some what sharp contrast to the preliminary decree, the final decree in a partition suit is primarly procedural and executive in its character. 14. Once the true character of preliminary and final decree has been determined the issue of the charater of the proceeding in the interregnum is some what easy sailing. Once it is held that preliminary decree which has achieved finality is a determination and declaration of the parties in the land, then such a decree provides a clear watershed in such a suit. Thereafter the nature and character of the suit undergoes a sea change and total metamorphasis. Thereafter, all that remains is to give shape and concretise the earlier determination of rights and interests. The interregnum betwixt the preliminary decree which has achieved finality and the preparation of the final decree is nothing but proceedings in the nature of an execution of the said preliminary decree in ORDER :to effectuate its purpose. In my mind clearly and irrevocable these partake this character of execution proceed mg. They are in no sense adjudicatory or determinative. Once it is so held it is then well settled that section 4(c) of the Act does not apply to execution proceeding as such and there is no reason why it should apply to the proceeding subsequent to preliminary decree which has achieved finality. 15. Having held as above on principle one may now advert to precedent.- The learned counsel for the petitioners had very fairly conceded that there was no direct decision covering the issue on all fours in his favour. The decision of their Lordships in Phool Chand and another v. Gopal Lal (A.I.R. 1967 Supreme Court, 1470), Satyanarayan Prasad Sah and others v. State of Bihar & ors [A.I.R. 1980 Supreme Court, 2051 : 1981 PLJR 220 (SC)] and Mst. The decision of their Lordships in Phool Chand and another v. Gopal Lal (A.I.R. 1967 Supreme Court, 1470), Satyanarayan Prasad Sah and others v. State of Bihar & ors [A.I.R. 1980 Supreme Court, 2051 : 1981 PLJR 220 (SC)] and Mst. Bibi Rahmani Khatoon and others v. Harkoo Gope and others A.I.R. 1981 Supreme Court, 1450: 1982 PLJR 59 (SC)] are by way of analogy and being binding precedent there can possibly be no quarrel with the proposition that a suit for partition is not over in its literal sense till the final decree and further that a second preliminary decree is not in any way barred by the Code of Civil Procedure in a partition suit. These JUDGMENT :s do not travel any further to determine the nature and character of a suit after the preliminary decree which has achieved finality. Therefore, no meaningful aid can be derived by the learned counsel for the petitioner therefrom. Equally the High Court JUDGMENT :s holding to the same effect in Hari Narain Choudhary and others v. Ramnebi Kuer and others (sic) (A.I.R. 1969 Patna 7), Babhuru Besuveyye and other v. Babburu Guraveyye and another (A.I.R. 1951 Madras, 938). Nanja Raiehen v. Rangammal (A.I.R. 1972 Madras, 384), Ramanathan Chetty v. Alagappa Chetty & ors (A.I.R. 1930 Madras, 528), and Awadhendra Prasad Narayan Singh and others v. Raghubansmani Prasad Narain Singh and others (A.I.R. 1979, Patna 50) are of no aid or assistance to the stand of the petitioner's counsel. 16. On the other hand, there is a long line of consistent precedent in support of the contrary view which conclusively buttresses the stand of the respondent. Pride of place herein must go to the Full Bench JUDGMENT : in Srinibas Jane and others v. Janardan Jone and others (A.I.R. 1981 Orissa, 1). It is noticeable that section 4(4) of the Orissa Consolidation and fragmentation Act, 1972 is pari materia with section 4(c) of the Act. Therein after an exhaustive discussion on principle & procedent it has been held that final decree proceeding in a suit for partition does not abate under section 4(4) of the Act. In so holding the Full Bench has placed reliance on the observation of the Chief Justice Rankin in Full Bench case of Talib Ali v. Abdul Aziz (A.I.R. 1929 Calcutta 689 and Banwari Lal and others v. Shaikh Shakrullah & others (A.I.R. 1940 Patna, 204). In so holding the Full Bench has placed reliance on the observation of the Chief Justice Rankin in Full Bench case of Talib Ali v. Abdul Aziz (A.I.R. 1929 Calcutta 689 and Banwari Lal and others v. Shaikh Shakrullah & others (A.I.R. 1940 Patna, 204). It is true that there is no exhaustive discussion in the Division Bench JUDGMENT : of Nathuni Rai and another v. Smt. Khira Debi and others (1981 B.B.C.J. 413) but following the Orissa Full Bench aforesaid it has been held categorically that section 4(c) of the Act does not apply to execution proceeding or to the preparation of the final decree subsequent to preliminary decree in a suit for partition of immovable property. This in turn has been reaffirmed by the Division Bench in the State of M.P. and another v. Kumari Nivadita Jain and others (1982 B.B.C.J.). Equally it has been held by the Division Bench in Ramdhari Lath & ano. v. Kishan Lal Agrawal & others: [1985 B.B.C.J. 256 : 1985 PLJR 32 (NOC)] that section 4(c) of the Act does not apply to an execution proceedings. On behalf of the petitioner no meaningful challenge could be laid to the consistent precedent in this Court as also in other High Courts. 17. Before one closes it equally well to apply the last litmus test even on the assumption that herein two constructions are well matched. Assuming that two views are possible it is a settled canon of construction to avoid that which leads to either anomalous or misbheivous results. With the long line of precedent in favour of the respondent noticed above there can possibly be no gainsaying the fact that the view convassed on their behalf is not only a plausible one, but indeed which bas been acceded by so large a body of judicial opinion. On the other hand the view canvassed on behalf of the petitioner seems to me to lead to harsh if not absurd results. It tends to deprive the party of the fruits of litigation which be may have achieved in a prolonged and chequered course. On the other hand the view canvassed on behalf of the petitioner seems to me to lead to harsh if not absurd results. It tends to deprive the party of the fruits of litigation which be may have achieved in a prolonged and chequered course. The argument on behalf of the petitioner carried to logical length means that even if a preliminary decree has been appealed fro m, and has been affirmed right up to the Supreme Court it will all evaporate into thin air if before the preparation of the final decree the fortitous circumstance of a notification under section 3 (1) of the Act intervenes. The present case is itself a salient example of such a situation. Herein the JUDGMENT : and preliminary decree in favour of the respondent was issued way back in 1970 and they have been denied and threatened of the fruits of that decree for well nigh 16 years. The legislature can not easily be attribute of having intended such an oppressive result it is a sound principle of law that there would be no taking away of the rights of the citizen by implication and when ever the legislature intends to do so a clear provision is made. One cannot find any such clear mandate in section 4(c) of the Act. Yet again it is a settled rule that the jurisdiction of the Court is not to be easily ousted except on express mandate or necessary implication. Therefore, even if two competing views were open, one must necessarily title to the one advocated on behalf of the respondents. 18. To conclude, on principle and precedent and on the language of the statute, it has to be held that in a suit for partition the proceeding subsequent to the preliminary decree (which has achieved finality) in persuance thereof for the preparation of the final decree are in the nature of execution proceeding and would, therefore, not be hit by section 4(c) of the Act and consequently they would not abate. 19. In the light of the aforesaid findings the sole question in this case has to be decided in favour of the respondent. The learned Subordinate Judge in the ORDER :under revision has, therefore, rightly held that the proceedings before him did not come within the mischief of section 4(c) of the Act. 19. In the light of the aforesaid findings the sole question in this case has to be decided in favour of the respondent. The learned Subordinate Judge in the ORDER :under revision has, therefore, rightly held that the proceedings before him did not come within the mischief of section 4(c) of the Act. Affirming the same we dismiss the Civil Revision but leave the parties to bear their own costs. Revision dismissed.