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1988 DIGILAW 120 (PAT)

Bishwanath Rai v. Dulhin Indrasani Devi

1988-03-30

S.ROY

body1988
JUDGMENT Satyeshwar Roy, J. An application has been filed by the appellants in which it has been stated that in view of the fact that a notification under section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, (hereinafter to be referred to as 'the Act') has been issued with regard to Dumraon Anchal in the district of Bhojpur, the suit as well as appeal has abated. No rejoinder has been filed by the respondents. 2. Respondents 1 to 6 filed the suit for partition of the agricultural land situated in Dumraon Anchal in the district of Bhojpur. The suit was filed in 1970. The suit was decreed by the court below in favour of respondents 1 to 6 by the judgment and the decree dated 24.5.1973. 3. While the wit was pending by notification No. S.O. 1168 dated 16.11.1970 the State Government declared its intention to make a scheme for consolidation of holdings within Dumraon Ancha1. In spite of the said notification the suit proceeded and, as noticed above, disposed of on merit. During the subsistence of that notification this appeal was filed and on 4.1.1988 the petition in question was filed by the appellants for passing an order that both the suit and the appeal have abated. I may notice that it has also been stated on behalf of the appellants that no notification under section 26A of the Act has been published stating that the consolidation operations have been closed in Dumraon Anchal. 4. I may notice that it has also been stated on behalf of the appellants that no notification under section 26A of the Act has been published stating that the consolidation operations have been closed in Dumraon Anchal. 4. It was urged on behalf of the appellants that in view of the subsistence of that notification under section 3 of the Act and in absence of a notification under section 26A of the Act, as the lands in suit are all agricultural lands within the meaning of the Act, in view of the provision of section 4 (c) of the Act it must be held that the suit as well as appeal has abated, We are concerned in this appeal with section 4 (c) of the Act the relevant portion of which reads as follows:- "Upon the publication of the notification under sub-section (1) of section 3 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, xx xx xx (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." 5. Two decisions of this Court, which are applicable, are : Chaturbhuj Prasad Singh v. Saryu Prasad Singh (1985 B.B.C.J. 383 : 1985 PLJR (NOC) 48 and Hari Mohan Thakur v. Mahendra Narain Chand (1987 P.L.J.R. 88). In Chaturbhuj Prasad Singh's case it was held that the partition suit with regard to agricultural land situated within the area covered by notification issued under section 3 of the Act would abate and the suit would proceed with regard to the agricultural land so far as it related to the area not covered by the notification. In Chaturbhuj Prasad Singh's case it was held that the partition suit with regard to agricultural land situated within the area covered by notification issued under section 3 of the Act would abate and the suit would proceed with regard to the agricultural land so far as it related to the area not covered by the notification. I may mention that in that suit partition was prayed for which included properties situated within the area notified under section 3 of the Act and the area which was outside it. 'In Hari Mohan Thakur's case the controversy was whether in view of section 4(c) it could be said that a suit at the final decree proceeding stage would also abate. In that connection it was observed: ...........Till such a preliminary decree is passed, the suit for partition of Immovable property retain its character of being adjudicatory, determinative, and declaratory of the rights and interest of the parties in such property..." 6. In this connection it is also necessary to notice section 8A of the Act which reads as follows : “(1) The Assistant Consolidation Officer or the Consolidation Officer may, either on an application or on their own motion, partition joint holdings. (2) The partition of joint holdings shall be effected on the basis of shares: Provided that where the raiyats concerned, agree, it may be effected on the basis of specific plots." 7. It will appear from section 4(c) of the Act that it postulates three situations namely, (i) Every proceeding for the correction of records; (ii) Every suit and proceeding in respect of a declaration of rights of interest in any land laying in the area; and, (iii) For declaration or adjudication of any other right in regard to which proceeding can or ought to have been taken under this Act. In either of three events every proceeding and every suit pending before any court or authority at whatever stage it may be shall stand abated. It is, therefore, clear that if for any adjudication of any right if proceeding can or ought to be taken under this Act, the suit shall abate. Section 8A provides for partition of joint holdings either at the instance of any of the owners of the joint holdings or at his own motion by the Assistant Consolidation Officer or Consolidation Officer. The respondent nos. Section 8A provides for partition of joint holdings either at the instance of any of the owners of the joint holdings or at his own motion by the Assistant Consolidation Officer or Consolidation Officer. The respondent nos. 1 to 6, there fore, could have filed an application before the Assistant Consolidation Officer or the Consolidation Officer for partition of the joint holdings and if such an application was filed the officers named therein were competent to partition the joint holdings. Apart from what has been stated in the two decisions noticed above, for the reasons aforesaid also it must be held that the suit and appeal have abated. 8. It appears from the schedule to the plaint that it consists of land as defined in section 2(9) of the Act. Some property therein has also been described as land consisting of houses within Dumraon Municipality. In Betiah Estate v. Pushpa Devi (1986 P.L.J.R. 222), with reference to definition of land in section 2(9) and holding in section 2(7) of the Act and following earlier judgments it was held that only such land which has nexus to agriculture will be covered by the Act. Admittedly, the land with buildings in the town of Dumraon with municipal limit has nothing to do with agriculture. The provision of the Act shall not be attracted to such land. 9. It is, therefore, ordered that the suit and the appeal have abated with regard to property given in the schedule to the plaint, except 33 dec. of land with buildings in plot nos. 3571 3847, 3857, 3129 and 3864.