Banarasi Tewari v. State Of Bihar — 1996 DIGILAW 674 (PAT)

Judgment Ashok Kumar Ganguly, J. 1. This case raises an interesting question on the interpretation of the provisions of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the said act ). 2. The facts of the case are as follows: -The dispute in the present a case is over the title of an area of 2.60 acres of land situate in -Rupananpur RS. Ramgarh, district- Rohtas, the details of which are given in paragraph 3 of the writ-petition. 3. It has been admitted in the writ-petition that out of the plot of lands mentioned in para 3 of the writ petition, the dispute is in respect of half of the area has abated under the provisions of the Order XXII of the Code of Civil procedure, and as such the present dispute in this writ-petition is confined to the other half of the property, i. e. , 1.30 acres of land. 4. Respondent Nos.3 and 4 along with their mother (since deceased) instituted a suit being Title Suit No.98 of 1961 in the Court of Second Munsif, sasaram against the petitioners and some other persons. The said suit was for declaration of title and recovery of possession with respect to lands described in Schedule A of the plaint. The lands described in the plaint are the same land which, has been detailed in para 3 of the writ application. During the pendency of the said suit one defendant, namely, Deonath Tiwari died as a result of which the Trial Court by his order dated 18th September, 1965 held that the suit abated as a whole Thereafter, on appeal preferred by the plaintiff, the Appellate Court confined the abatement to the share of Deonath tiwari which was to the extent of one half of the lands mentioned in paragraph 3 of this writ-petition. The Trial court decreed the aforesaid suit in respect of the properties which remained after abatement and consequent upon the death of Deonath tiwari. 5. Thereafter the petitioners preferred title appeal in the Court of the Sub. Judge, Bhabhua and by the order dated 4th October, 1978 passed by the Sub. Judge, Bhabhua it was ordered that the appeal has abated under Sec.4 (C) of the Act. 6. After abatement, the dispute in question came before the consolidation authorities for decision, that is how the matter came before the consolidation court. Judge, Bhabhua and by the order dated 4th October, 1978 passed by the Sub. Judge, Bhabhua it was ordered that the appeal has abated under Sec.4 (C) of the Act. 6. After abatement, the dispute in question came before the consolidation authorities for decision, that is how the matter came before the consolidation court. In the consolidation proceeding the Deputy Director of Consolidation decided the case in favour of the petitioner and the same was affirmed in appeal, but in revision, the Director of consolidation reversed the findings and decided the case against the petitioners. 7. Respondent Nos.3 and 4 filed consolidation Revision Case No.708 of 1977 before the Director of consolidation Bihar Patna in which the impugned order was passed. The impugned order passed by the Director of Consolidation is dated 9th April, 1984. 8. The grievance of the petitioners is that the respondent No.2 ought to have decided the revision in accordance with the materials and evidence on records, but instead of doing so, he decided the matter on the basis of the decree passed in Title Suit No.98 of 1961. 9. In this proceeding, respondent nos.3 and 4 appeared and filed a counter-affidavit. In the counter affidavit, respondent Nos.3 and 4 have asserted that the suit being Title Suit No.98 of 1961 was decreed on 21st December, 1973 and the delivery of possession was given on 8th January, 1977 in an execution proceeding. The contention of the private respondents is that the decree passed in the said title was stood satisfied and executed. 10. On the aforesaid facts it has been urged by the Counsel for the privace respondent Nos.3 and 4 that the delivery of possession was effected on the spot on 8th January, 1977 in execution of the decree passed in the said suit. Therefore, the abatement of appeal on 4th October, 1978 under Section 4 (C) of the Act can have no effect on the said delivery of possession which according to them has taken place earlier to the abatement. It has also been stated by respondent Nos.3 and 4 that the execution case No.5 of 1976 was satisfied, and as such, the Director of Consolidation while passing the order has not at all acted erroneously while passing the order has not at all acted erroneously while passing the order in terms of the said decree. 11. It has also been stated by respondent Nos.3 and 4 that the execution case No.5 of 1976 was satisfied, and as such, the Director of Consolidation while passing the order has not at all acted erroneously while passing the order has not at all acted erroneously while passing the order in terms of the said decree. 11. From a perusal of the concluding portion of the revisional order, it appears that the revisional Court decided the matter on the basis of the judgment and decree passed in the Civil court and the revisional Court has also came to the conclusion that the abatement of appeal by the Appellate Court decree will not abate the decree unless the decree of the Civil Court is modified by the Higher Court, the said decree of the Civil Court will remain operative. The learned Counsel for the respondents states that in view of the judgment of this Court in the case of Bikrama dubey and Another V/s. Hrishikesh Singh and Others, reported in 1979 B. B. C. J. page 726, the decision of the revisional authority is right. 12. Learned Counsel relied upon the observation made in para 5 of the said Division Bench judgment in which the Hon ble Mr. Justice S. Sarwar Ali as Acting Chief Justice (as his Lordship then was) was pleased to observe "indeed the scheme of consolidation has to be in consonance with the decree which is binding on the parties. A decree of the Court, which is not sub-judice, will have to be given effect to in the consolidation proceedings itself and the rights entered in the register of lands according to such a decree. " 13. The learned Counsel for the respondents said that in the instant case a decree which has been passed in the title suit has been satisfied and the delivery of possession has been given pursuant to that decree much before the abatement of the appeal, and the consolidation authority is right in proceeding on the basis of the said decree as the said decree has not abated even though the appeal against the decree abated. 14. 14. In Bikrama Dubey (supra) the division Bench in paragraph 5 also came to the following conclusions which are set out below: - "the expression "in regard to which proceeding can or ought to be taken under this Act, in Sec.4 (1) (c) can be read to refer only to the expression" for declaration or adjudication of any other right. alternatively it may also be read to refer to the earlier expression" every suit and proceeding in respect of declaration of right or interest in land lying in the area. In other to determine which of the two interpretations is acceptable it would be appropriate to refer to the scheme of the Act. The scheme of the Act has been set forth in Para 3 of the full bench decision of this Court in Ramkrit Singhs case. It has also been referred to in Sub-hag Sah and Ore V/s. Doma Sah and ore and it may not be repeated here. What is clear, however, is that objections of the nature that are to be determined in an execution proceeding cannot be adjudicated upon by the consolidation authorities. It is also manifest that the consolidation authorities have no right to execute a decree which is binding on the parties. It is further apparent that the execution of a decree cannot and does not in any way put impediments in the consolidation proceedings or in giving effect to the scheme of consolidation. " The further observations in para 5 of the said judgment are as follows: - "it is, therefore, in consonance with reason and justice that the execution proceedings should not be covered under the provisions of Sec.4 (1) (c) of the act. Where two interpretations are pos-sible it is a well settled rule of constructions that an interpretation which avoids inconvenience and advances the cause of justice should be preferred. Indeed, in my view, strong and compelling words are required to oust the jurisdiction of Courts or prevent the execution of decrees passed by Courts of competent jurisdiction. Such compelling words are absent in the instant case. " 15. The learned Judges of the division Bench while dealing with the provisions of Sec.4 (1) (b) of the Act came to the cone usion that a restricted meaning has to he given to the words used in Sec.4 (1) (b) of the Act. Such compelling words are absent in the instant case. " 15. The learned Judges of the division Bench while dealing with the provisions of Sec.4 (1) (b) of the Act came to the cone usion that a restricted meaning has to he given to the words used in Sec.4 (1) (b) of the Act. The learned Judges of the Division Bench held that if such restricted meaning is not given then tie provisions will become unconstitut-onal. 16. Learned counsel for the respondent Nos.3 and 4 has further submitted that the aforesaid proposition of law has been affirmed by the subsequent Division Bench of this Court in the case of Pasupati Nath Singh Vs. Jai ram Singh reported in 1987 P. L. J. R. page 1007 : 1988 BLJ 231 . In the said division Bench, the learned Judges came to the conclusion that the provisions of Sec.4 (C) of the Act are not applicable to an execution proceeding, and the execution cases are not barred either before or after issuance of notification under Section 3 (1) of the Act. 17. The learned Judges of the division Bench in Bikrama Dubey (Supra) gave a restricted meaning to section 4 (1) (B) and 4 (1) (C) of the act, for saving the provisions of Sections 4 (1) (B) and 4 (1) (C) of the Act from the vice of unconstitutionality. But no such restricted interpretation was necessary in view of the decision of the Supreme Court in the case of Ram adhar Singh Vs. Ramroop Singh, reported in A. I. R.1968 Supreme Court page 714. In Ram Adhar Singh (supra)the constitutional vires of the amendment to Sec.5 of Uttar Pradesh consolidation and Holdings Act was challenged. The said amended Section 5 of the Uttar Pradesh Act is in part materia with Sec.4 (C) of the Bihar act, as observed by the Supreme Court in Rahamani Khatoon Vs. Harkoo gope, reported in A. I. R.1981 Supreme court, p - 1450, para 11, of the report. 18. And in Ram Adhar Singh (supra), a three Judge-Bench of the supreme Court upheld the vires of the amended Sec.5 of the U. P. Act (Para 13, page 717 of report ). 19. Again in Chattar Singh and others versus Thakur Prasad Singh, reported in A. I. R.1975 Supreme Court page 1499, another three-judge. 18. And in Ram Adhar Singh (supra), a three Judge-Bench of the supreme Court upheld the vires of the amended Sec.5 of the U. P. Act (Para 13, page 717 of report ). 19. Again in Chattar Singh and others versus Thakur Prasad Singh, reported in A. I. R.1975 Supreme Court page 1499, another three-judge. Bench of the Supreme Court affirmed the decision in Ram Adhar singh (supra ). 20. But unfortunately the attention of the learned Judges of the division Bench in Bikrama Dubey (supra) reported in 1979 was not drawn to either of those two decisions of supreme Court in Ram Adhar Singh (supra) reported in 1968 and Chattar singh (supra) reported in 1975. In both the above noted decisions the learned judges of the Supreme Court held that as a result of the statutory abatement introduced by the amended Sec.5, the suits in both the cases abated even though while the matter was pending in supreme Court and during the pendency of the proceedings in Supreme Court, the amendment to Sec.5 was brought about. 21. The challenge to constitutional validity of the Bihar Act on the grounds of Articles 14 and 19 has been expressly given a quietus by another three-judge Bench of the Supreme court in Satya Narayan Prasad Shah and others V/s. State of Bihar and others reported in A. I. R.1980 Supreme Cour page 2149. In the said judgment in satya narayan Prasad Shah (supra), Suprerm court came to the conclusion in para that as a result of abatement the civi proceeding comes to naught 22. Recently by the Constitution (Seventy-Eighth, Amendment) Ac 1995, the said Act, namely, the Biha consolidation of Holdings and Preven tion of Fragmentation Act, 1956, am the subsequent amendments to the sai act by Bihar Act 7 of 1970, Bihar Act 2 of 1975, Bihar Act 35 of 1982 have bee included in the Ninth Schedule to the constitution vide entries 259, 260, 26.263 of List. 23. The judgment in Rahamai khatoon (supra) was delivered on the bihar Act. While dealing with the con cept of abatement in para 9 of the sai judgment, the learned Judges of the supreme Court came to the conclusic that the concept of the abatement und the said Act is not the same as the concept of abatement which is usually known in the Civil law. While dealing with the con cept of abatement in para 9 of the sai judgment, the learned Judges of the supreme Court came to the conclusic that the concept of the abatement und the said Act is not the same as the concept of abatement which is usually known in the Civil law. The learned judge explained the position by saying that the concept of abatement which is known to civil law as if a party to a proceeding dies either in the Trial Court or during any appeal or revision dies and the right to sue survives or a claim has to be answered, unless the deceased person is substituted by the legal heirs the suit would abate. If a party to an appeal or revision and either the appeal or revision abates, it will have no impact on the judgment, decree or order against which the appeal or revision is preferred. But the Hon ble Judges of the supreme Court refused to construe the concept of statutory abatement under the Act similarly and made the following observations in para 10, page 1453 of the report. "here, if the statement as is conceptually understood in the Code of Civil Procedure is imported, it will do irreparable harm. To illustrate, if an appeal abates rendering either the trial Court judgment or the judgment in first appeal final and binding, the consolidation authorities would also be bound by it and the party whose appeal or revision abated would lose its chance of persuading the appellate or revisional authority to accept its case which may result in interfering with or setting aside the judgment, order cr decree in appeal. Such was not and could not be the intention of Sec.4. This becomes manifestly clear from the proviso to clause (C) of Sec.4 extracted hereinabove which shows that such abatement shall be without prejudice to the rights of the person affected to a private (sic) the rights or interest in dispute in the suit or proceeding before the appropriate consolidation authorities under and in accordance with the provisions of the Act. No one would, therefore, stand to suffer on account of the abatement because there is a special forum carved out for adjudication of the rights which were involved in proceedings which would abate as a consequence of the notification under Sec.3. No one would, therefore, stand to suffer on account of the abatement because there is a special forum carved out for adjudication of the rights which were involved in proceedings which would abate as a consequence of the notification under Sec.3. If the construction as canvassed for were to be adopted it would result in irreparable harm and would be counter-productive. The consolidation work would be wholly hampered and a party whose appeal is pending would lost 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 learned Judge has further observed in the same paragraph: "therefore, 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 this would leave consolidation authority free to adjudicate the claims of title or other rights or interest in land involved in consolidation. In our opinion, therefore, the High Court was right in mot only holding that the second appeal pending before it abated but also the judgment and decree of the Trial Court and first Appellate Court would stand abated. along with those proceedings. We reach this conclusion on the language of sections 3 and 4 and the scheme of the act but the view which were are taking is also borne out by some decisions though in none of them this position was directly canvassed. " 24. From the aforesaid extracts of the Supreme Court judgment it is clear that the learned Judges have come to the aforesaid conclusion on a reading of the provisions of Sections 3 and 4 of the act and also the Scheme of the Act. Therefore, the aforesaid conclusion of the learned Judges of the Supreme court in the case of Mst. Bibi Rahmani khatoon (supra), is the declaration of law under Article 141 of the Constitution and is binding on all Courts within the territory of India. 25. Therefore, the aforesaid conclusion of the learned Judges of the Supreme court in the case of Mst. Bibi Rahmani khatoon (supra), is the declaration of law under Article 141 of the Constitution and is binding on all Courts within the territory of India. 25. Having regard to the aforesaid clear declaration of law given by the supreme Court, this Court cannot either follow the decision given in the case of Bikrama Dubey (supra) or the division Bench decision given in the case of Pasupati Nath Singh (supra) as a binding precedent in view of the constitutional mandate under Article 141 of the Constitution. 26. This Court has noted that when the Division Bench judgment in Bikrama Dubey (supra) was delivered in the year 1979, the aforesaid judgment of the supreme Court in the case of Mst. Bibi rahmani Khatoon (supra), which was delivered in 1981. was not available. But it was certainly available when the subsequent Division Bench judgment in pasupati Nath Jha (supra) was rendered, but unfortunately the said judgment in rahmani Khatton (supra) was not brought to its notice. 27. It goes v/ithout saying that the interpretation given by the Supreme court to Sections 3 and 4 of the said Act in Mst. Bibi Rahmani Khatoon (supra) is the declaration of law under Article 141 of the Constitution and the same is obviously binding on this Court. In this connection this Court is reminded of the decision of other Division Bench of the Patna High Court in the case of deepak and other; Vs. The State of Bihar and Ors. reported in A. I. R.1982 Patna page 126, : 1982 BLJ 340 in which the learned Judge of the Division Bench came to the conclusion that the High court will be bound by the Supreme courts pronouncement which is the law of land under Article 141 of the Constitution. The High Court is bound to follow the law as laid down by the supreme Court. The said observation has been made in para 12 at page 129 of the said judgment in the case of Deepak (supra ). 28. Following the aforesaid position in law, this Court is of the view that the Division Bench Judgment in Bik-rama Dubey (supra) and Pasupati Nath jha (supra) are no longer binding precedents and this Court does not follow the same. 28. Following the aforesaid position in law, this Court is of the view that the Division Bench Judgment in Bik-rama Dubey (supra) and Pasupati Nath jha (supra) are no longer binding precedents and this Court does not follow the same. This Court therefore hold that the abatement contemplated under Sec.4 of the said Act would also apply to a decree. 29. In that view of the matter, the order passed by the revisional authority cannot be sustained. The said order is set aside and the matter is sent back on remand to the re-visional authority for hearing on the merits of the case disregarding the decree passed in the said title suit No.98 of 1961. The writ petition is allowed to the extent indicated above. 30. Since this is an old matter, this court directs the petitioners and the respondents No.3 and 4 to appear before the revisional authority within a period of fortnight from the date of receipt/production of a copy of this order, and ask for fixing the date aforesaid, the revisional authority will decide the matter afresh in the light of the observations made in this judgment preferably within a period of six months from the date of appearance of the parties. Petition Allowed.