PETITIONER:
BIBI RAHMANI KHATOON & ORS.
Vs.
RESPONDENT:
HARKOO GOPE & ORS.
DATE OF JUDGMENT22/04/1981
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
ISLAM, BAHARUL (J)
CITATION:
1981 AIR 1450 1981 SCR (3) 553
1981 SCC (3) 172 1981 SCALE (1)739
ACT:
Bihar Consolidation of Holdings and Prevention of
Fragmentation Act, 1956-Section 4(1)(c)-Scope of-Section
provides that, without prejudice to rights of parties all
pending proceedings at any stage before any court in respect
of lands taken up for consolidation shall abate-Plaintiffs'
suit for declaration of title decreed-Notification issued
when appeal pending before High Court-Effect of
notification-Whether judgment and decree of trial court
would abate.
HEADNOTE:
Section 4(1)(c) of the Bihar Consolidation of Holdings
and Prevention of Fragmentation Act, 1956 provides that upon
the issue of a notification under section 3(1) of the Act
every proceeding pending before any court or authority,
whether of the first instance or of appeal shall, on an
order being passed in that behalf by the Court or authority
before whom such suit or proceeding is pending, stand
abated. The proviso to the section enacts that such
abatement shall be without prejudice to the rights of
persons affected to agitate the right in dispute before the
appropriate consolidation authorities in accordance with the
provisions of the Act. The State Government issued a
notification under section 3(1) of the Act.
The plaintiffs' (appellants herein) suit for a
declaration of their title and for recovery of possession of
agricultural lands bearing khata Nos. 458 and 459 against
defendants (respondents herein and three other defendants)
was decreed by the trial court. Defendant No. 7 claimed
interest in Khata No. 458 only while the other defendants 1
to 4 claimed interest in Khata No. 459. On appeal the
Additional District Judge affirmed the decree of the trial
court. Defendant No. 7 died when the first appeal was
pending before the District Judge. Neither his legal
representatives nor any one claiming under him were
substituted nor was an appeal preferred by any of them to
the High Court.
Before the High Court the defendants 1 to 4 submitted
that the work of consolidation of holdings in respect of the
lands in dispute having been taken up by the concerned
authorities consequent on the issue of a notification under
section 3 of the Act the appeal would abate by virtue of the
provisions of section 4 of the Act. Accepting the contention
the High Court held that the appeal abated and set aside the
judgment and decree of the courts below in respect of both
Khatas 458 and 459.
In appeal to this Court it was contended on behalf of
the appellants-plaintiffs that (1) even if the second appeal
abated in respect of Khata No. 459 the High Court could not
set aside the judgment and decree of the trial court as well
as of the first appellate court both of which became final
and (2) in any event, on the
554
death of defendant No. 7 during the pendency of the first
appeal, his legal representatives having not been
substituted, his appeal abated and none of the present
respondents had any interest in the property. Therefore, the
High Court was in error in setting aside the decree of the
trial court in so far as that property was concerned.
Dismissing the appeal in part,
^
The effect of a notification issued under Section 3 of
the Act bringing a land in dispute in a civil proceeding
under a scheme of consolidation is that the proceedings
pending in the civil court either at the stage of trial,
appeal or revision would come to naught. The High Court was
right in holding that the second appeal abated in respect of
Khata No. 459 and that the judgment and decree of the trial
court and the first appellate court stood abated along with
those proceedings. [562 G-H]
When a scheme of consolidation is undertaken, the Act
provides for adjudicating of claims by the authorities under
the Act. In order to permit them to pursue adjudication of
rival claims unhampered by any proceedings in civil courts a
wholesome provision is made that pending proceedings
involving claims to land at whatever stage they might be,
should abate. To avoid conflict between rival jurisdictions
the Act provides that such proceedings should be examined
exclusively by the authorities under the Act. Provision has
been made for abatement of pending proceedings as well. [558
F-G]
The concept of abatement known to civil law is that if
a party to a proceeding dies either in the course of trial
or appeal or revision and the right to sue survives, the
heirs and legal representatives of the deceased party would
have to be substituted, failure to do which would result in
abatement of the proceedings. If a party to an appeal or
revision dies and if the appeal or revision abates it will
have no impact on the judgment, decree or order against
which the appeal or revision is preferrers. Such judgment,
decree or order under appeal or revision would become final.
[559 B-D]
But the abatement contemplated by section 4 of the Act
is of a different kind. If the concept of abatement as
understood in the Code of Civil Procedure is imported into
this case, it would do irreparable harm to the parties. For
example, if an appeal abates rendering either the judgment
of the trial court or the judgment in the first appeal final
and binding the consolidation authorities would also be
bound by it and the party whose appeal or revision abated
would lose the chance of persuading the appellate or
revisional authority to accept its case which may result in
interfering with or setting aside the judgment etc. in
appeal. That this could not be the intention of section 4 is
manifest from the proviso to clause (c) of section 4. By
virtue of the proviso no one would stand to suffer on
account of abatement because a special forum is carved out
for adjudication of the rights of parties. [559 E-G]
Ram Adhar Singh v. Ramroop Singh and ors [1968] 2
S.C.R. 95, Chattar Singh and Ors. v. Thakur Prasad Singh,
A.I.R. 1975 SC 1499, and Satyanarayan Prasad and ors. v.
State of Bihar and Anr., A.I.R. 1980 SC 2051; referred to.
555
The High Court was in error in holding that the
judgment and decree in respect of Khata No. 458 also abated.
Defendant No. 7 claimed separate, specific and exclusive
right in respect of that Khata. On his death his legal
representatives having not been substituted, his appeal
abated. His legal representatives did not prefer an appeal
to the High Court. The appellants' title in respect of Khata
458 therefore became established under the decree of the
trial court. The abatement of the second appeal will have no
impact on the appellants to Khata No. 458. [562 C-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1359 of
1981.
Appeal by special leave from the judgment and order
dated the 18th August, 1979 of the Patna High Court in
Second Appeal No. 697 of 1974.
B.P. Singh for the Appellants.
S.K. Mehta for the Respondents.
The Judgment of the Court was delivered by
DESAI, J. Mst. Bibi Rahmani Khatoon and others filed
Title Suit No. 3/70 in the Court of the Additional
Subordinate Judge I, Gaya for declaration of their title and
for recovery of possession of agricultural lands admeasuring
4 acres 29 gunthas comprised in two holdings bearing khata
nos. 458 (nakdi) and 459 (Bhouli) in Touzi No. 7535 situated
in village Parsain. The defendants in the suit were the
present respondents and three others defendants Nos. 5, 6
and 7. One Brahmadeo was defendant 7 claiming an interest in
khata no. 458 on the basis of a sale deed executed on March
31, 1959, by one Deonandan Singh who was defendant 5 in the
trial court. It must be made distinctly clear that Brahmadeo
claimed interest in khata no. 458 while the present
respondents claimed interest in khata no. 459 only. The
trial court decreed the suit declaring that the plaintiffs
were the owners of both the khatas and were entitled to
recover possession of the same.
Title Appeal No. 7/74 was preferred in the court of the
Distt. Judge, Gaya, and it was heard by the learned Fourth
Addl. District Judge as per his judgment and decree dated
July 12, 1974. The learned Addl. District Judge dismissed
the appeal and affirmed the decree of the trial court.
Present respondents alone preferred Second Appeal No.
697/74 in the High Court of Judicature at Patna. It must be
specifically
556
mentioned that neither defendant 7 Brahmadeo who died
pending the appeal before the District Court and whose legal
representatives were not impleaded, nor anyone claiming
under him either came to be substituted in the appeal
pending in the District Court nor any of them preferred
appeal to the High Court. This has some relevance to the
disposal of the appeal before us and, therefore, it has been
categorically set out.
Harkoo Gope and three others who claimed interest in
khata no. 459 only, preferred second appeal against the
dismissal of their appeal by the learned Distt. Judge. When
the Second Appeal No. 697/74 was pending in the High Court,
an affidavit was filed on behalf of the appellants
(respondents in this Court) on November 16, 1978, drawing
attention of the Court to a notification under s.3 of the
Bihar Consolidation of Holdings and Prevention of
Fragmentation Act, 1956 (‘Act’ for short) and further
intimating to the Court that the village in which the
disputed khatas were situated was taken up for consolidation
of holdings and, therefore, the appeal pending in the High
Court would abate in view of the provision contained in s. 4
of the Act. The High Court accepted the submission and
disposed of the appeal by its order dated August 18, 1979,
the operative portion of which reads as under:
“The appeal abates and the judgments and decrees
of both the courts below are hereby set aside as having
abated”.
Original plaintiffs having been dissatisfied by the order of
the High Court not only abating the second appeal preferred
by the respondents but also setting aside the judgments and
decrees of the trial court and the first appellate court as
having abated, have preferred this appeal by special leave.
Shri B.P. Singh, learned counsel who appeared for the
appellants contended that even if the Second Appeal abates
by virtue of the provision contained in s. 4, on issue of a
notification under s. 3 of the Act, the High Court cannot
set aside the judgments and decrees of the trial court and
the first appellate court as according to him when an appeal
abates the judgment and decree of the court against which
the appeal is preferred becomes final. The second contention
of the learned counsel is that in any view of the matter as
the present respondents had no interest in khata no. 458 and
as Brahmadeo on sale to him by Deonandan Singh alone claimed
interest in khata no. 458 and since the death of Brahmadeo
when the
557
first appeal was pending and his heirs and legal
representatives having not been substituted, the appeal qua
him in respect of khata no. 458 had abated and the present
respondents could not have preferred appeal in respect of
khata no. 458 and, therefore, the High Court could not have
set aside the decree in respect of khata no. 458.
Section 3 of the Act confers power on the State
Government to make a declaration of its intention to frame a
scheme for consolidation of holdings. When the State
Government entertains an intention to make a scheme for
consolidation of holdings in a given village, it has to
issue a notification declaring its intention to make a
scheme for the consolidation of holdings in the specified
area. Section 4 provides that upon the publication of a
notification under sub-s. (1) of s. 3, the consequences
enumerated in s. 4 shall ensue. One such consequence is as
set out in sub-clause (c) which reads as under:-
“4. Effect of notification under section 3(1) of the
Act-
Upon the publication of the notification under
subsection (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 operations
ensue in the area to which the notification
relates, namely:-
(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 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”.
There are as many as 5 provisos to clause (c) of s. 4 but
only one is material which reads as under:
558
“Provided further that such abatement shall be
with out 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 provisions of this Act
and the rules made thereunder”.
Present appeal arises out of a suit filed by the
present appellants, who were plaintiffs, for a declaration
of their title and consequential relief of possession
meaning that it was a suit concerning agricultural land to
which title was claimed and disputed. This suit was pending
in Second Appeal at the instance of the respondents when the
notification under s. 3 (1) came to be issued. Accordingly,
s. 4 (c) would be attracted and the necessary consequence
statutorily prescribed, must ensue. Therefore, it is
incontrovertible that the second appeal would abate. Shri
Singh, learned counsel for the appellants does not dispute
this legal consequence.
The grievance of Shri Singh is that the High Court
while making an order declaring that the second appeal has
abated, was in error in setting aside the judgments and
decrees of the trial court as well as of the first appellate
court which were in favour of the present appellants on the
ground that those proceedings have also abated. At first
blush this argument is very attractive but if accepted it
has a potentiality of doing irreparable harm.
When a scheme of consolidation is undertaken, the Act
provides for adjudication of various claims to land involved
in consolidation by the authorities set up under the Act. In
order to permit the authorities so pursue adjudication of
rival claims to land unhampered by any proceedings in civil
courts, a wholesome provision was made that the pending
proceedings involving claims to land in the hierarchy of
civil courts, may be in the trial court, appeal or revision,
should abate. This provision was made with a view to
ensuring unhampered adjudication of claims to land before
the authorities under the Consolidation Act without being
obstructed by proceedings in civil courts or without being
hampered or impeded by decisions of the civil courts in the
course of consolidation of holdings. In order to avoid
conflict consequent upon rival jurisdictions the legislature
provided that the proceedings involving the claims to land
put in consolidation should be exclusively examined
559
by the authorities under the Consolidation Act and all rival
jurisdiction would be closed. Simultaneously it was
necessary to deal with the pending proceedings and that is
why the provision for abatement of such proceedings.
The concept of abatement is known to civil law. If a
party to a proceeding either in the trial court or any
appeal or revision dies and the right to sue survives or a
claim has to be answered, the heirs and legal
representatives of the deceased party would have to be
substituted and failure to do so would result in abatement
of proceedings. Now, if the party to a suit dies and the
abatement takes place, the suit would abate. If a party to
an appeal or revision dies 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. In
fact, such judgment, decree or order under appeal or
revision would become final. Such is not the scheme of
abatement as conceived by s. 4 of the Act. Here, if the
abatement 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 or decree in
appeal. Such was not and could not be the intention of s. 4.
This becomes manifestly clear from the proviso to clause (c)
of s. 4 extracted hereinabove which shows that such
abatement shall be without prejudice to the rights of the
person affected to agitate 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 s. 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 lose 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. Therefore, the legislature intended that not
560
only the appeal or revision would abate but the judgment,
order or decree against which the appeal is pending would
also become honest 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 not 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 ss. 3 and 4 and the scheme of the Act but
the view which we are taking is also borne out by some
decisions though in none of them this position was directly
canvassed.
In Ram Adhar Singh v. Ramroop Singh & Ors., this Court
examined the effect of a provision in pari materia in a
parallel statute, namely, s. 5 of the Uttar Pradesh
Consolidation of Holdings Act, 1953 (‘U. P. Act’ for short).
Section 5 provided for the consequences of a declaration of
intention to prepare a scheme for consolidation of holdings
made under s. 4. As the section stood prior to its amendment
in 1966, it did not provide for abatement of proceedings
pending in civil courts at the commencement of consolidation
proceedings. By the Amending Act 21 of 1966, s. 5 was
amended introducing sub-s. (2)(a) to provide for abatement
of pending proceedings. This section is in pari materia with
s. 4 (c) of Act. At the time of the issue of the
notification an appeal by special leave was pending in this
Court and a notice of motion was taken out requesting the
Court to pass an order abating the appeal after taking note
of sub-s. (2)(a) introduced by the Amending Act of 1966.
After negativing the contention challenging the
constitutional validity of the Amending Act, this Court held
that the suit out of which the appeal came to the Court
would stand abated in view of sub-s. (2) (a) introduced in
s. 5. The emphasis is that not only would the appeal pending
in this Court abate but the suit as a whole abated. True it
is that no contention was taken whether only the appeal
would abate keeping the judgment under appeal intact or the
suit as a whole would abate, but the observation of this
Court will clearly indicate that in the opinion of this
Court the suit as such would abate rendering the appeal
pending before this Court infructuous. This decision in Ram
Adhar Singh’s case supra was
561
in terms followed in Chattar Singh & Ors. v. Thakur Prasad
Singh. The appeal in Chattar Singh’s case related to a suit
which had a reference to a claim to the land in respect of
which a notification was issued under the U.P. Act as
amended by Act 21 of 1966. The notification was issued when
the appeal was pending before this Court. The appellants
moved for passing an order of abatement. Granting the
motion, this Court held that the suit and the appeals stood
abated, leaving it open to the parties to work out the
rights before the appropriate authorities under the U. P.
Act. Both the aforementioned decisions were noticed in
Satyanarayan Prasad Sah and others v. State of Bihar and
another. In that case upon the issue of a notification under
s. 3 of the Act at a time when the matter was pending in the
High Court an order was made under s. 4 (c) abating the
proceeding as also the suit from which the proceeding arose.
Writ Petitions were filed in this Court under Article 32 of
the Constitution questioning the constitutional validity of
s. 4 of the Act as being violative of Arts. 14 and 19 of the
Constitution. After repelling the challenge to the vires of
s. 4 this Court affirming the decisions in Ram Adhar SIngh
and Chattar Singh’s case (supra) held that maybe that the
High Court should not have nullified the decree of the trial
court but should have merely declared that the proceeding
stood abated which this Court understood to mean that the
civil proceeding comes to a naught. In other words, the
proceedings from its commencement abate and no decision in
the proceeding at any stage would have any impact on the
adjudication of claims by the parties under the Act.
Accordingly, both on principle and precedent it is
crystal clear that where a notification is issued bringing
the land involved in a dispute in the civil proceeding under
a scheme of consolidation the proceedings pending in the
civil court either in the trial court, appeal or revision,
shall abate as a consequence ensuing upon the issue of a
notification and the effect of abatement would be that the
civil proceeding as a whole would come to a naught.
Therefore, the order of the High Court impugned in this
appeal is legal and valid so far as it not only directed
abatement of the appeal pending before the High Court but
also abating the judgments and decrees of the trial court
and the first appellate court because the entire civil
proceeding came to naught.
562
The next contention of Shri Singh was that the High
Court ought not to have nullified the decree with regard to
khata no. 458 in which Brahmadeo and Deonandan Singh,
defendants 7 and 5 respectively, alone were interested and
the present respondents had no interest in khata no. 458.
Learned counsel who appeared for the respondents conceded
that the present respondents have no interest in khata no.
458. It also transpires that Brahmadeo claimed interest in
khata no. 458 alleging that he had purchased the land
involved in the khata from Deonandan Singh, defendant 5. The
suit proceeded ex-parte against defendants 5 and 6 and
Brahmadeo, defendant 7 contested the suit in respect of
khata no. 458. The trial court negatived the contention of
defendant 7 Brahmadeo and accepted plaintiff’s title.
Defendant 7 Brahmadeo along with other defendants preferred
an appeal to the District Court. When the appeal was pending
in the District Court, Brahmadeo, the appellant died. His
legal representatives were not substituted. Since defendant
7 Brahmadeo as appellant claimed separate, specific and
exclusive right to khata no. 458, on his death his legal
representatives ought to have been substituted. He was the
appellant. No one was substituted on his behalf. Obviously,
therefore, the appeal preferred by Brahmadeo abated. It may
also be made clear that legal representatives of Brahmadeo
have not preferred second appeal. Second Appeal was
preferred by the present respondents who claimed interest in
khata no. 459 only. Accordingly, when the appeal preferred
by the present respondents abated, it only abated with
reference to khata no. 459 and in no case it would have any
impact on the title of present appellants which became
established under a decree of the trial court which became
final on the appeal of Brahmadeo having abated before the
notification under s. 3, and it could not at all be dealt
with by the High Court. To that extent this appeal will have
to be allowed and an appropriate modification would have to
be made.
Accordingly, this appeal succeeds in part. Proceedings
with regard to khata no. 459 (Bhouli) in Touzi 7535, village
Parsain were rightly abated by the High Court and the civil
proceeding with regard to khata no. 459 as a whole would
abate leaving the parties to get their rights adjudicated
before the authorities under the Act. The title of the
appellants declared by the trial court in respect of khata
no. 458 (nakdi) has become unchallengeable at the hands of
Brahmadeo or anyone claiming through him and the
563
abatement of the second appeal will have no impact on the
title of the appellants to khata no. 458. The declaration
made by the trial court in respect of khata no. 458 is
restored. In the circumstances of the case there will be no
order as to costs.
P.B.R. Appeals allowed in part.
564
