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2013 DIGILAW 1425 (PAT)

Raja Devi v. Parbhawati Devi

2013-12-10

MUNGESHWAR SAHOO

body2013
JUDGMENT : MUNGESHWAR SAHOO, J.:–The defendants have filed this second appeal against the judgment and decree of the Lower Appellate Court dated 14.10.1985 passed in Title Appeal No.55 of 1983 whereby the Lower Appellate Court allowed the appeal in part and thereby modified the judgment and decree of the trial court dated 27.05.1983 passed by 4th Additional Sub Judge, Arrah in Title Suit No.79 of 1980. 2. The plaintiffs filed the aforesaid suit for partition of the suit property alleging that the ancestor of the parties namely Bhikhari Choudhary had three sons. Mangal Choudhary died issueless in jointness with his brothers. Plaintiff is the grand-daughter of third son, Kanhai Choudhary being the daughter of Bishwanath Choudhary. The branch of second son of Kanhai and the first son of Bhikhari Choudhary are the defendants. According to the plaintiffs, there was separation between two sons of Kanhai but there was no partition by metes and bounds. Since the Chakbandi operation was going on in the village, the suit for partition has been filed for houses used for residential purpose, orchard and land having bamboos clumps which are exempted from Chakbandi operation. The plaintiffs claimed 1/4th share. 3. The defendants filed contesting written statement alleging that the plaintiff is not the daughter of Bishwanath Choudhary rather she was the daughter of Namjad Choudhary and sister of Manoj Choudhary of village Kosihan. The suit property are all for the purpose of agriculture and, therefore, the suit is not maintainable in view of the pendency of the consolidation proceeding as notification has been issued under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. 4. The trial court dismissed the plaintiff’s suit recording the finding that the suit lands are used for agricultural purpose as such, it is barred under Section 4(c) of the Consolidation Act. On appeal, the Lower Appellate Court recorded the finding that Sonapati is the daughter of Bishwanath. The Lower Appellate Court held that suit had abated regarding the house on plot no.601, 604 of khata no.57 and plot no.677 of khata no.128. The Lower Appellate Court further held that plot nos.524 and 523 measuring 16 decimals and 23 decimals of khata no.110 which are Baswari and orchard are not within the purview of Consolidation Act. The Lower Appellate Court held that suit had abated regarding the house on plot no.601, 604 of khata no.57 and plot no.677 of khata no.128. The Lower Appellate Court further held that plot nos.524 and 523 measuring 16 decimals and 23 decimals of khata no.110 which are Baswari and orchard are not within the purview of Consolidation Act. Accordingly, the Lower Appellate Court held that the plaintiff has got 1/4th share in the aforesaid two plot nos.524 and 523 and decreed the plaintiff’s suit to that extent only. 5. At the time of admission on 31.03.1986, the following substantial question of law was formulated:— “Whether the Lower Appellate Court was justified in holding that suit has abated only partially with respect to plot nos.524 and 523 merely because they were described as Basbari of Bagicha, without considering the question as to whether they were in any way connected with agricultural, horticultural operations or not, within the meaning of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 or the court below should have held that the entire suit abated in view of the provision of Section 4(c) of that Act?” 6. The learned senior counsel appearing for the appellants submitted that while decreeing the plaintiff’s suit for partition with respect to two plots 524 and 523, the Lower Appellate Court did not consider the definition of land defined under Section 2(9) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. Therefore, the judgment and decree of the Lower Appellate Court in favour of the plaintiff is liable to be set aside. According to the learned counsel, in view of the definition of land, plot nos.524 and 523 are also within the purview of the Consolidation Act, therefore, the plaintiff’s suit itself will abate as a whole. Moreover, Section 4(b) excludes the jurisdiction of the Civil Court during the pendency of the consolidation proceeding and in the present case, the plaintiff in the plaint itself admitted the fact that prior to institution of the suit, the consolidation proceeding was going on. Therefore, the plaintiff’s suit itself was barred under Section 4(b) of the Consolidation Act. Regarding parentage, the learned counsel submitted that wrong onus has been shifted on the defendant to prove that the plaintiff is not the daughter of Bishwanath. Therefore, the plaintiff’s suit itself was barred under Section 4(b) of the Consolidation Act. Regarding parentage, the learned counsel submitted that wrong onus has been shifted on the defendant to prove that the plaintiff is not the daughter of Bishwanath. According to the learned counsel, the burden was on the plaintiffs to prove that she was the daughter of Bishwanath. On this score also, the Appellate Court judgment is not sustainable. 7. On the other hand, the learned counsel for the respondents submitted that considering the provision of the Consolidation Act, the Lower Appellate Court has rightly held that plot nos.524 and 523 are not within the purview of consolidation proceeding, therefore, the suit cannot abate for partition of the said two plots. The substantial question of law formulated, therefore, be answered against the appellants and in favour of the plaintiffs-respondents. 8. Section 4(b) and 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 read as follows:— “4(b). No suit or other legal proceeding in respect of any land in such areas shall be entertained in any court, and in calculating period of limitation applicable to such suits and proceedings such period shall not be counted. 4(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.” (proviso are not quoted herein) 9. Admittedly, in the present case, prior to institution of the partition suit consolidation proceeding was going on and it is the admitted case of the parties. In such view of the matter, in view of Section 4(b), the Civil Court had no jurisdiction to decide the matter if the suit lands are within the purview of the consolidation proceedings. So far Section 4(c) is concerned, it speaks that if on the date of issuance of notice, any suit or appeal or revision is pending, then it will abate. So far Section 4(c) is concerned, it speaks that if on the date of issuance of notice, any suit or appeal or revision is pending, then it will abate. In the present case, it is not relevant for deciding as to whether the provision contained in Section 4(b) will apply or Section 4(c) will apply. The main question according to the substantial question of law is whether two plots are within the purview of the consolidation proceeding and, therefore, the suit with respect to these two plots was not maintainable or should have been held to be abated. If it is held that these two plots are within the purview of the consolidation proceeding, it makes no difference to the plaintiff because in any case, the plaintiff’s suit will be dismissed either on the ground that the Civil Court had no jurisdiction or that the suit has abated. 10. Now let us consider as to whether the Lower Appellate Court is right in holding that the suit has not abated regarding plot nos.524 and 523. Section 2(9) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 defines land as “Land” means agricultural land, and includes horticultural land, Kharaur land, land with bamboo clumps, pasture land, cultivable waste land homesteads, tanks, wells and water channels. 11. From perusal of the judgment of the Lower Appellate Court, it appears that the Lower Appellate Court clearly at paragraph 37 held that plot no.524 is Baswari and 523 is orchard. At paragraph 36, after considering the Pleader Commissioner’s report, the Lower Appellate Court found that in the suit plot, there were 12 bamboo clumps having 61 standing bamboos besides 84, 64, 42 and several other bamboo clumps and standing trees of Mango, Tar, 12 Kathal trees, 10 Mahua trees etc. Therefore, both the plots are orchard and Baswari having bamboos clumps. This is finding of fact. From the definition of land as quoted above, land with bamboo clumps is included within the meaning of the term “land”. The Lower Appellate Court has not considered the definition of land. Now, the question is whether the orchard can be held to be included in the definition of “land”. 12. In the case of Mirza Sulaiman Beg & Ors. Vs. The Lower Appellate Court has not considered the definition of land. Now, the question is whether the orchard can be held to be included in the definition of “land”. 12. In the case of Mirza Sulaiman Beg & Ors. Vs. Harihar Mahto & Ors., 1985 PLJR 152 , a Division Bench of this Court considered the question as to whether a Kabristan is within the ambit of the wide sweep of the definition of land in Section 2(9) of the of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 and has held a Kabristan is within the ambit of the definition of land. From perusal of the decision, it appears that argument was advanced before the Division Bench that land under a Kabristan was not agricultural land, and, would, therefore, stand out of the definition under section 2(9) of the of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. The Division Bench held that even in common parlance a graveyard and the land under it would still be ordinarily understood as land and so far definition of land is concerned, it is not restricted to agricultural land only because the definition is not a constrictive one, but indeed is expansive. The provision uses the well known phrase “means” and “includes”. It seems to be plain therefrom that the definition, far from confining the land to being strictly agricultural in nature, in fact extends it to matters and things, which cannot strictly be labelled as “agricultural land” for instance, it includes ‘homesteads’, and, by itself, a homestead is not an agricultural land stricto sensu. Similarly, a tank or a well are plainly not agricultural land. Therefore, the wide ranging language employed in Section 2(9)would, far from excluding Kabristan land. 13. In view of this interpretation of the definition by Division Bench of this court, now it cannot be said that the orchard is not included within the definition of land because it is not used as agricultural land. So far Baswari is concerned, as stated above, it is specifically included in the definition. 14. In view of this position of law laid down by the Division Bench, in my opinion, the orchard and Baswari are also included in the definition of “land” as defined under Section 2(9) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. 14. In view of this position of law laid down by the Division Bench, in my opinion, the orchard and Baswari are also included in the definition of “land” as defined under Section 2(9) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. Therefore, the plaintiff’s suit itself was not maintainable in view of Section 4(b) or it can be said that the suit has abated in view of Section 4(c) of the Consolidation Act. In either view, the plaintiff’s suit has abated and not maintainable. As such, the substantial question of law is answered in favour of the appellants and against the plaintiffs-respondents. 15. So far parentage of plaintiffs is concerned, it appears that Lower Appellate Court after appreciation of evidences recorded the finding that she is the daughter of Bishwanath. The defendants pleaded different case that she is the daughter of another person but has failed to prove the same. Therefore, this is a pure finding of fact and I do not find it to be a substantial question of law. 16. In the result, this Second Appeal is allowed. That part of the judgment and decree of the Lower Appellate Court is set aside and the plaintiff’s suit is held not maintainable as barred under Section 4(b) and/or has abated under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. ?