{"id":189549,"date":"1981-04-22T00:00:00","date_gmt":"1981-04-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bibi-rahmani-khatoon-ors-vs-harkoo-gope-ors-on-22-april-1981"},"modified":"2017-09-12T12:45:27","modified_gmt":"2017-09-12T07:15:27","slug":"bibi-rahmani-khatoon-ors-vs-harkoo-gope-ors-on-22-april-1981","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bibi-rahmani-khatoon-ors-vs-harkoo-gope-ors-on-22-april-1981","title":{"rendered":"Bibi Rahmani Khatoon & Ors vs Harkoo Gope & Ors on 22 April, 1981"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bibi Rahmani Khatoon & Ors vs Harkoo Gope & Ors on 22 April, 1981<\/div>\n
Equivalent citations: 1981 AIR 1450, \t\t 1981 SCR (3) 553<\/div>\n
Author: D Desai<\/div>\n
Bench: Desai, D.A.<\/div>\n
           PETITIONER:\nBIBI RAHMANI KHATOON & ORS.\n\n\tVs.\n\nRESPONDENT:\nHARKOO GOPE & ORS.\n\nDATE OF JUDGMENT22\/04\/1981\n\nBENCH:\nDESAI, D.A.\nBENCH:\nDESAI, D.A.\nISLAM, BAHARUL (J)\n\nCITATION:\n 1981 AIR 1450\t\t  1981 SCR  (3) 553\n 1981 SCC  (3) 172\t  1981 SCALE  (1)739\n\n\nACT:\n     Bihar  Consolidation  of  Holdings\t and  Prevention  of\nFragmentation  Act,  1956-Section  4(1)(c)-Scope  of-Section\nprovides that,\twithout prejudice  to rights  of parties all\npending proceedings at any stage before any court in respect\nof lands  taken up for consolidation shall abate-Plaintiffs'\nsuit for  declaration of  title decreed-Notification  issued\nwhen   appeal\t pending   before   High   Court-Effect\t  of\nnotification-Whether judgment  and  decree  of\ttrial  court\nwould abate.\n\n\n\nHEADNOTE:\n     Section 4(1)(c)  of the Bihar Consolidation of Holdings\nand Prevention of Fragmentation Act, 1956 provides that upon\nthe issue  of a\t notification under  section 3(1) of the Act\nevery proceeding  pending before  any  court  or  authority,\nwhether of  the first  instance or  of appeal  shall, on  an\norder being  passed in that behalf by the Court or authority\nbefore whom  such  suit\t or  proceeding\t is  pending,  stand\nabated.\t The   proviso\tto  the\t section  enacts  that\tsuch\nabatement shall\t be  without  prejudice\t to  the  rights  of\npersons affected  to agitate the right in dispute before the\nappropriate consolidation authorities in accordance with the\nprovisions  of\tthe  Act.  The\tState  Government  issued  a\nnotification under section 3(1) of the Act.\n     The  plaintiffs'\t(appellants  herein)   suit  for   a\ndeclaration of their title and for recovery of possession of\nagricultural lands  bearing khata  Nos. 458  and 459 against\ndefendants (respondents\t herein and  three other defendants)\nwas decreed  by the  trial court.  Defendant No.  7  claimed\ninterest in  Khata No. 458 only while the other defendants 1\nto 4  claimed interest\tin Khata  No.  459.  On\t appeal\t the\nAdditional District  Judge affirmed  the decree of the trial\ncourt. Defendant  No. 7\t died  when  the  first\t appeal\t was\npending\t before\t  the  District\t Judge.\t Neither  his  legal\nrepresentatives\t nor   any  one\t  claiming  under  him\twere\nsubstituted nor\t was an\t appeal preferred  by any of them to\nthe High Court.\n     Before the\t High Court  the defendants 1 to 4 submitted\nthat the work of consolidation of holdings in respect of the\nlands in  dispute having  been taken  up  by  the  concerned\nauthorities consequent\ton the issue of a notification under\nsection 3 of the Act the appeal would abate by virtue of the\nprovisions of section 4 of the Act. Accepting the contention\nthe High Court held that the appeal abated and set aside the\njudgment and  decree of\t the courts below in respect of both\nKhatas 458 and 459.\n     In appeal\tto this\t Court it was contended on behalf of\nthe appellants-plaintiffs that (1) even if the second appeal\nabated in  respect of Khata No. 459 the High Court could not\nset aside the judgment and decree of the trial court as well\nas of  the first  appellate court both of which became final\nand (2) in any event, on the\n554\ndeath of  defendant No.\t 7 during  the pendency of the first\nappeal,\t his   legal   representatives\t having\t  not\tbeen\nsubstituted, his  appeal abated\t and  none  of\tthe  present\nrespondents had any interest in the property. Therefore, the\nHigh Court  was in  error in setting aside the decree of the\ntrial court in so far as that property was concerned.\n     Dismissing the appeal in part,\n^\n     The effect\t of a notification issued under Section 3 of\nthe Act\t bringing a  land in  dispute in  a civil proceeding\nunder a\t scheme of  consolidation is  that  the\t proceedings\npending in  the civil  court either  at the  stage of trial,\nappeal or  revision would come to naught. The High Court was\nright in holding that the second appeal abated in respect of\nKhata No.  459 and that the judgment and decree of the trial\ncourt and  the first appellate court stood abated along with\nthose proceedings. [562 G-H]\n     When a  scheme of\tconsolidation is undertaken, the Act\nprovides for adjudicating of claims by the authorities under\nthe Act.  In order  to permit them to pursue adjudication of\nrival claims unhampered by any proceedings in civil courts a\nwholesome  provision   is  made\t  that\tpending\t proceedings\ninvolving claims  to land  at whatever\tstage they might be,\nshould abate.  To avoid conflict between rival jurisdictions\nthe Act\t provides that\tsuch proceedings  should be examined\nexclusively by\tthe authorities under the Act. Provision has\nbeen made for abatement of pending proceedings as well. [558\nF-G]\n     The concept  of abatement known to civil law is that if\na party\t to a  proceeding dies either in the course of trial\nor appeal  or revision\tand the\t right to  sue survives, the\nheirs and  legal representatives of the deceased party would\nhave to\t be substituted, failure to do which would result in\nabatement of  the proceedings.\tIf a  party to\tan appeal or\nrevision dies  and if  the appeal or revision abates it will\nhave no\t impact on  the judgment,  decree or  order  against\nwhich the  appeal or  revision is preferrers. Such judgment,\ndecree or order under appeal or revision would become final.\n[559 B-D]\n     But the  abatement contemplated by section 4 of the Act\nis of  a different  kind. If  the concept  of  abatement  as\nunderstood in  the Code\t of Civil Procedure is imported into\nthis case,  it would do irreparable harm to the parties. For\nexample, if  an appeal\tabates rendering either the judgment\nof the trial court or the judgment in the first appeal final\nand binding  the consolidation\tauthorities  would  also  be\nbound by  it and  the party  whose appeal or revision abated\nwould  lose  the  chance  of  persuading  the  appellate  or\nrevisional authority  to accept its case which may result in\ninterfering with  or setting  aside  the  judgment  etc.  in\nappeal. That this could not be the intention of section 4 is\nmanifest from  the proviso  to clause  (c) of  section 4. By\nvirtue of  the proviso\tno one\twould  stand  to  suffer  on\naccount of  abatement because  a special forum is carved out\nfor adjudication of the rights of parties. [559 E-G]\n     Ram Adhar\tSingh v.  Ramroop Singh\t and<\/a>  ors  [1968]  2\nS.C.R. 95,  Chattar Singh  and Ors.  v. Thakur Prasad Singh,\nA.I.R. 1975  SC 1499,  and Satyanarayan\t Prasad and  ors. v.\nState of Bihar and Anr., A.I.R. 1980 SC 2051; referred to.\n555\n     The High  Court  was  in  error  in  holding  that\t the\njudgment and decree in respect of Khata No. 458 also abated.\nDefendant No.  7 claimed  separate, specific  and  exclusive\nright in  respect of  that Khata.  On his  death  his  legal\nrepresentatives having\tnot  been  substituted,\t his  appeal\nabated. His  legal representatives  did not prefer an appeal\nto the High Court. The appellants' title in respect of Khata\n458 therefore  became established  under the  decree of\t the\ntrial court. The abatement of the second appeal will have no\nimpact on the appellants to Khata No. 458. [562 C-E]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1359 of
\n1981.\n<\/p>\n
     Appeal by\tspecial leave  from the\t judgment and  order
\ndated the  18th August,\t 1979 of  the Patna  High  Court  in
\nSecond Appeal No. 697 of 1974.\n<\/p>\n
     B.P. Singh for the Appellants.\n<\/p>\n
     S.K. Mehta for the Respondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     DESAI, J.\tMst. Bibi  Rahmani Khatoon  and others filed
\nTitle  Suit   No.  3\/70\t in  the  Court\t of  the  Additional
\nSubordinate Judge I, Gaya for declaration of their title and
\nfor recovery of possession of agricultural lands admeasuring
\n4 acres\t 29 gunthas  comprised in two holdings bearing khata
\nnos. 458 (nakdi) and 459 (Bhouli) in Touzi No. 7535 situated
\nin village  Parsain. The  defendants in\t the suit  were\t the
\npresent respondents  and three\tothers defendants  Nos. 5, 6
\nand 7. One Brahmadeo was defendant 7 claiming an interest in
\nkhata no.  458 on the basis of a sale deed executed on March
\n31, 1959,  by one Deonandan Singh who was defendant 5 in the
\ntrial court. It must be made distinctly clear that Brahmadeo
\nclaimed\t interest   in\tkhata  no.  458\t while\tthe  present
\nrespondents claimed  interest in  khata no.  459  only.\t The
\ntrial court  decreed the  suit declaring that the plaintiffs
\nwere the  owners of  both the  khatas and  were entitled  to
\nrecover possession of the same.\n<\/p>\n
     Title Appeal No. 7\/74 was preferred in the court of the
\nDistt. Judge,  Gaya, and  it was heard by the learned Fourth
\nAddl. District\tJudge as  per his  judgment and decree dated
\nJuly 12,  1974. The  learned Addl.  District Judge dismissed
\nthe appeal and affirmed the decree of the trial court.\n<\/p>\n
     Present respondents  alone preferred  Second Appeal No.
\n697\/74 in  the High Court of Judicature at Patna. It must be
\nspecifically
\n556<\/span>
\nmentioned  that\t neither  defendant  7\tBrahmadeo  who\tdied
\npending the appeal before the District Court and whose legal
\nrepresentatives were  not  impleaded,  nor  anyone  claiming
\nunder him  either came\tto  be\tsubstituted  in\t the  appeal
\npending in  the District  Court nor  any of  them  preferred
\nappeal to  the High  Court. This  has some  relevance to the
\ndisposal of the appeal before us and, therefore, it has been
\ncategorically set out.\n<\/p>\n
     Harkoo Gope  and three  others who\t claimed interest in
\nkhata no.  459 only,  preferred second\tappeal\tagainst\t the
\ndismissal of  their appeal by the learned Distt. Judge. When
\nthe Second  Appeal No. 697\/74 was pending in the High Court,
\nan  affidavit\twas  filed   on\t behalf\t of  the  appellants
\n(respondents in\t this Court)  on November  16, 1978, drawing
\nattention of  the Court\t to a  notification under s.3 of the
\nBihar  Consolidation   of   Holdings   and   Prevention\t  of
\nFragmentation  Act,  1956  (‘Act’  for\tshort)\tand  further
\nintimating to  the Court  that\tthe  village  in  which\t the
\ndisputed khatas were situated was taken up for consolidation
\nof holdings  and, therefore,  the appeal pending in the High
\nCourt would abate in view of the provision contained in s. 4
\nof the\tAct. The  High Court  accepted\tthe  submission\t and
\ndisposed of  the appeal\t by its order dated August 18, 1979,
\nthe operative portion of which reads as under:\n<\/p>\n
\t  “The appeal  abates and  the judgments and decrees
\n     of both the courts below are hereby set aside as having
\n     abated”.\n<\/p><\/blockquote>\n
Original plaintiffs having been dissatisfied by the order of
\nthe High  Court not only abating the second appeal preferred
\nby the\trespondents but also setting aside the judgments and
\ndecrees of  the trial court and the first appellate court as
\nhaving abated, have preferred this appeal by special leave.\n<\/p>\n
     Shri B.P.\tSingh, learned\tcounsel who appeared for the
\nappellants contended  that even\t if the Second Appeal abates
\nby virtue  of the provision contained in s. 4, on issue of a
\nnotification under  s. 3  of the  Act, the High Court cannot
\nset aside  the judgments  and decrees of the trial court and
\nthe first appellate court as according to him when an appeal
\nabates the  judgment and  decree of  the court against which
\nthe appeal is preferred becomes final. The second contention
\nof the\tlearned counsel is that in any view of the matter as
\nthe present respondents had no interest in khata no. 458 and
\nas Brahmadeo on sale to him by Deonandan Singh alone claimed
\ninterest in  khata no.\t458 and since the death of Brahmadeo
\nwhen the
\n557<\/span>
\nfirst  appeal\twas  pending   and  his\t  heirs\t and   legal
\nrepresentatives having\tnot been substituted, the appeal qua
\nhim in\trespect of  khata no. 458 had abated and the present
\nrespondents could  not have  preferred appeal  in respect of
\nkhata no.  458 and, therefore, the High Court could not have
\nset aside the decree in respect of khata no. 458.\n<\/p>\n
     Section 3\tof  the\t Act  confers  power  on  the  State
\nGovernment to make a declaration of its intention to frame a
\nscheme\tfor   consolidation  of\t holdings.  When  the  State
\nGovernment entertains  an intention  to make  a\t scheme\t for
\nconsolidation of  holdings in  a given\tvillage, it  has  to
\nissue a\t notification declaring\t its  intention\t to  make  a
\nscheme for  the consolidation  of holdings  in the specified
\narea. Section  4 provides  that upon  the publication  of  a
\nnotification under  sub-s. (1)\tof s.  3,  the\tconsequences
\nenumerated in  s. 4  shall ensue. One such consequence is as
\nset out in sub-clause (c) which reads as under:-\n<\/p>\n
     “4. Effect\t of notification  under section\t 3(1) of the
\n     Act-\n<\/p><\/blockquote>\n
\t  Upon the  publication of  the\t notification  under
\n\t  subsection  (1)  of  section\t3  in  the  official
\n\t  Gazette  the\t consequences,\tas  hereinafter\t set
\n\t  forth, shall,\t subject to  the provisions  of this
\n\t  Act, from  the date  specified in the notification
\n\t  till the  close of  the  consolidation  operations
\n\t  ensue\t in  the  area\tto  which  the\tnotification
\n\t  relates, namely:-\n<\/p><\/blockquote>\n
     (c)  every proceeding for the correction of records and
\n\t  every\t suit\tand  proceedings   in\trespect\t  of
\n\t  declaration of  rights of  interest  in  any\tland
\n\t  lying\t in   the  area\t  or  for   declaration\t  or
\n\t  adjudication of any other right in regard to which
\n\t  proceedings can  or ought  to be  taken under this
\n\t  Act, pending before any court or authority whether
\n\t  of the  first instance  or of appeal, reference or
\n\t  revision, shall,  on an order being passed in that
\n\t  behalf by  the court or authority before whom such
\n\t  suit or proceeding is pending, stand abated”.\n<\/p><\/blockquote>\n
There are  as many  as 5  provisos to clause (c) of s. 4 but
\nonly one is material which reads as under:\n<\/p>\n
558<\/span><\/p>\n
\t  “Provided further  that such\tabatement  shall  be
\n\t  with out  prejudice to  the rights  of the persons
\n\t  affected to  agitate\tthe  right  or\tinterest  in
\n\t  dispute in  the said\tsuits or  proceedings before
\n\t  the appropriate  consolidation  authorities  under
\n\t  and in  accordance with the provisions of this Act
\n\t  and the rules made thereunder”.<\/p><\/blockquote>\n
     Present appeal  arises out\t of  a\tsuit  filed  by\t the
\npresent appellants,  who were  plaintiffs, for a declaration
\nof  their  title  and  consequential  relief  of  possession
\nmeaning that  it was  a suit concerning agricultural land to
\nwhich title  was claimed and disputed. This suit was pending
\nin Second Appeal at the instance of the respondents when the
\nnotification under  s. 3 (1) came to be issued. Accordingly,
\ns. 4  (c) would\t be attracted  and the necessary consequence
\nstatutorily  prescribed,   must\t ensue.\t  Therefore,  it  is
\nincontrovertible that  the second  appeal would\t abate. Shri
\nSingh, learned\tcounsel for  the appellants does not dispute
\nthis legal consequence.\n<\/p>\n
     The grievance  of Shri  Singh is  that the\t High  Court
\nwhile making  an order\tdeclaring that the second appeal has
\nabated, was  in error  in setting  aside the  judgments\t and
\ndecrees of the trial court as well as of the first appellate
\ncourt which  were in favour of the present appellants on the
\nground that  those proceedings\thave also  abated. At  first
\nblush this  argument is\t very attractive  but if accepted it
\nhas a potentiality of doing irreparable harm.\n<\/p>\n
     When a  scheme of\tconsolidation is undertaken, the Act
\nprovides for adjudication of various claims to land involved
\nin consolidation by the authorities set up under the Act. In
\norder to  permit the  authorities so  pursue adjudication of
\nrival claims  to land unhampered by any proceedings in civil
\ncourts, a  wholesome provision\twas made  that\tthe  pending
\nproceedings involving  claims to  land in  the hierarchy  of
\ncivil courts, may be in the trial court, appeal or revision,
\nshould abate.  This  provision\twas  made  with\t a  view  to
\nensuring unhampered  adjudication of  claims to\t land before
\nthe authorities\t under the  Consolidation Act  without being
\nobstructed by  proceedings in  civil courts or without being
\nhampered or  impeded by decisions of the civil courts in the
\ncourse of  consolidation of  holdings.\tIn  order  to  avoid
\nconflict consequent upon rival jurisdictions the legislature
\nprovided that  the proceedings\tinvolving the claims to land
\nput in consolidation should be exclusively examined
\n559<\/span>
\nby the authorities under the Consolidation Act and all rival
\njurisdiction  would   be  closed.   Simultaneously  it\t was
\nnecessary to  deal with\t the pending proceedings and that is
\nwhy the provision for abatement of such proceedings.\n<\/p>\n
     The concept  of abatement\tis known  to civil law. If a
\nparty to  a proceeding\teither in  the trial  court  or\t any
\nappeal or  revision dies  and the right to sue survives or a
\nclaim  has   to\t  be   answered,   the\t heirs\t and   legal
\nrepresentatives of  the deceased  party\t would\thave  to  be
\nsubstituted and\t failure to  do so would result in abatement
\nof proceedings.\t Now, if  the party  to a  suit dies and the
\nabatement takes\t place, the  suit would abate. If a party to
\nan appeal or revision dies and either the appeal or revision
\nabates, it  will have  no impact  on the judgment, decree or
\norder against  which the appeal or revision is preferred. In
\nfact,  such  judgment,\tdecree\tor  order  under  appeal  or
\nrevision would\tbecome final.  Such is\tnot  the  scheme  of
\nabatement as  conceived by  s. 4  of the  Act. Here,  if the
\nabatement as is conceptually understood in the Code of Civil
\nProcedure is  imported, it  will  do  irreparable  harm.  To
\nillustrate, if\tan appeal  abates rendering either the trial
\ncourt judgment\tor the\tjudgment in  first appeal  final and
\nbinding, the  consolidation authorities\t would also be bound
\nby it  and the\tparty whose  appeal or revision abated would
\nlose its  chance of  persuading the  appellate or revisional
\nauthority to accept its case which may result in interfering
\nwith or\t setting aside\tthe judgment,  order  or  decree  in
\nappeal. Such was not and could not be the intention of s. 4.
\nThis becomes manifestly clear from the proviso to clause (c)
\nof  s.\t 4  extracted  hereinabove  which  shows  that\tsuch
\nabatement shall\t be without  prejudice to  the rights of the
\nperson affected to agitate the rights or interest in dispute
\nin  the\t  suit\tor   proceeding\t  before   the\t appropriate
\nconsolidation authorities  under and  in accordance with the
\nprovisions of  the Act.\t No one\t would, therefore,  stand to
\nsuffer on  account of  the  abatement  because\tthere  is  a
\nspecial forum  carved out  for adjudication  of\t the  rights
\nwhich were  involved in\t proceedings which  would abate as a
\nconsequence  of\t  the  notification   under  s.\t 3.  If\t the
\nconstruction as\t canvassed for\twere to\t be adopted it would
\nresult in  irreparable harm and would be counter-productive.
\nThe consolidation  work would be wholly hampered and a party
\nwhose appeal  is pending would lose the chance of convincing
\nthe appellate  court which,  if successful,  would turn\t the
\ntables against the other party in whose favour the judgment,
\ndecree or  order would\tbecome final  on  abatement  of\t the
\nappeal. Therefore, the legislature intended that not
\n560<\/span>
\nonly the  appeal or  revision would  abate but the judgment,
\norder or  decree against  which the  appeal is pending would
\nalso become  honest as\tthey would also abate and this would
\nleave consolidation  authority free to adjudicate the claims
\nof title  or other  rights or  interest in  land involved in
\nconsolidation. In our opinion, therefore, the High Court was
\nright in  not only  holding that  the second  appeal pending
\nbefore it  abated but  also the\t judgment and  decree of the
\ntrial court  and first\tappellate court\t would stand  abated
\nalong with  those proceedings.\tWe reach  this conclusion on
\nthe language  of ss.  3 and  4 and the scheme of the Act but
\nthe view  which we  are taking\tis also\t borne out  by\tsome
\ndecisions though  in none of them this position was directly
\ncanvassed.\n<\/p>\n
     In Ram  Adhar Singh v. Ramroop Singh & Ors.,<\/a> this Court
\nexamined the  effect of\t a provision  in pari  materia in  a
\nparallel  statute,   namely,  s.  5  of\t the  Uttar  Pradesh
\nConsolidation of Holdings Act, 1953 (‘U. P. Act’ for short).
\nSection 5  provided for the consequences of a declaration of
\nintention to  prepare a scheme for consolidation of holdings
\nmade under s. 4. As the section stood prior to its amendment
\nin 1966,  it did  not provide  for abatement  of proceedings
\npending in civil courts at the commencement of consolidation
\nproceedings. By\t the Amending  Act 21  of  1966,  s.  5\t was
\namended introducing  sub-s. (2)(a)  to provide for abatement
\nof pending proceedings. This section is in pari materia with
\ns.  4  (c)  of\tAct.  At  the  time  of\t the  issue  of\t the
\nnotification an\t appeal by special leave was pending in this
\nCourt and  a notice  of motion\twas taken out requesting the
\nCourt to  pass an order abating the appeal after taking note
\nof sub-s.  (2)(a) introduced  by the  Amending Act  of 1966.
\nAfter\tnegativing    the   contention\t  challenging\t the
\nconstitutional validity of the Amending Act, this Court held
\nthat the  suit out  of which  the appeal  came to  the Court
\nwould stand  abated in\tview of sub-s. (2) (a) introduced in
\ns. 5. The emphasis is that not only would the appeal pending
\nin this\t Court abate but the suit as a whole abated. True it
\nis that\t no contention\twas taken  whether only\t the  appeal
\nwould abate  keeping the judgment under appeal intact or the
\nsuit as\t a whole  would abate,\tbut the\t observation of this
\nCourt will  clearly indicate  that in  the opinion  of\tthis
\nCourt the  suit as  such would\tabate rendering\t the  appeal
\npending before\tthis Court infructuous. This decision in Ram
\nAdhar Singh’s case supra was
\n561<\/span>
\nin terms  followed in  Chattar Singh & Ors. v. Thakur Prasad
\nSingh. The  appeal in Chattar Singh’s case related to a suit
\nwhich had  a reference\tto a claim to the land in respect of
\nwhich a\t notification was  issued  under  the  U.P.  Act  as
\namended by  Act 21 of 1966. The notification was issued when
\nthe appeal  was pending\t before this  Court. The  appellants
\nmoved for  passing  an\torder  of  abatement.  Granting\t the
\nmotion, this  Court held that the suit and the appeals stood
\nabated, leaving\t it open  to the  parties to  work  out\t the
\nrights before  the appropriate\tauthorities under  the U. P.
\nAct. Both  the\taforementioned\tdecisions  were\t noticed  in
\nSatyanarayan Prasad  Sah and  others v.\t State of  Bihar and
\nanother. In that case upon the issue of a notification under
\ns. 3 of the Act at a time when the matter was pending in the
\nHigh Court  an order  was made\tunder s.  4 (c)\t abating the
\nproceeding as also the suit from which the proceeding arose.
\nWrit Petitions\twere filed in this Court under Article 32 of
\nthe Constitution  questioning the constitutional validity of
\ns. 4 of the Act as being violative of Arts. 14 and 19 of the
\nConstitution. After  repelling the challenge to the vires of
\ns. 4  this Court  affirming the decisions in Ram Adhar SIngh
\nand Chattar  Singh’s case  (supra) held\t that maybe that the
\nHigh Court should not have nullified the decree of the trial
\ncourt but  should have\tmerely declared\t that the proceeding
\nstood abated  which this  Court understood  to mean that the
\ncivil proceeding  comes to  a naught.  In other\t words,\t the
\nproceedings from  its commencement  abate and no decision in
\nthe proceeding\tat any\tstage would  have any  impact on the
\nadjudication of claims by the parties under the Act.\n<\/p>\n
     Accordingly, both\ton principle  and  precedent  it  is
\ncrystal clear  that where  a notification is issued bringing
\nthe land involved in a dispute in the civil proceeding under
\na scheme  of consolidation  the proceedings  pending in\t the
\ncivil court  either in\tthe trial court, appeal or revision,
\nshall abate  as a  consequence ensuing\tupon the  issue of a
\nnotification and  the effect  of abatement would be that the
\ncivil  proceeding  as  a  whole\t would\tcome  to  a  naught.
\nTherefore, the\torder of  the High  Court impugned  in\tthis
\nappeal is  legal and  valid so\tfar as\tit not only directed
\nabatement of  the appeal  pending before  the High Court but
\nalso abating  the judgments  and decrees  of the trial court
\nand the\t first appellate  court\t because  the  entire  civil
\nproceeding came to naught.\n<\/p>\n
562<\/span><\/p>\n
     The next  contention of  Shri Singh  was that  the High
\nCourt ought  not to have nullified the decree with regard to
\nkhata no.  458\tin  which  Brahmadeo  and  Deonandan  Singh,
\ndefendants 7  and 5  respectively, alone were interested and
\nthe present  respondents had  no interest  in khata no. 458.
\nLearned counsel\t who appeared  for the\trespondents conceded
\nthat the  present respondents  have no interest in khata no.\n<\/p>\n
458. It\t also transpires  that Brahmadeo claimed interest in
\nkhata no.  458 alleging\t that  he  had\tpurchased  the\tland
\ninvolved in the khata from Deonandan Singh, defendant 5. The
\nsuit proceeded\tex-parte against  defendants  5\t and  6\t and
\nBrahmadeo, defendant  7 contested  the suit  in\t respect  of
\nkhata no.  458. The  trial court negatived the contention of
\ndefendant  7   Brahmadeo  and  accepted\t plaintiff’s  title.
\nDefendant 7  Brahmadeo along with other defendants preferred
\nan appeal to the District Court. When the appeal was pending
\nin the\tDistrict Court,\t Brahmadeo, the\t appellant died. His
\nlegal representatives  were not substituted. Since defendant
\n7 Brahmadeo  as appellant  claimed  separate,  specific\t and
\nexclusive right\t to khata  no. 458,  on his  death his legal
\nrepresentatives ought  to have\tbeen substituted. He was the
\nappellant. No  one was substituted on his behalf. Obviously,
\ntherefore, the\tappeal preferred by Brahmadeo abated. It may
\nalso be\t made clear  that legal representatives of Brahmadeo
\nhave  not   preferred  second\tappeal.\t Second\t Appeal\t was
\npreferred by the present respondents who claimed interest in
\nkhata no.  459 only.  Accordingly, when the appeal preferred
\nby the\tpresent respondents  abated,  it  only\tabated\twith
\nreference to  khata no. 459 and in no case it would have any
\nimpact on  the title  of  present  appellants  which  became
\nestablished under  a decree  of the trial court which became
\nfinal on  the appeal  of Brahmadeo  having abated before the
\nnotification under  s. 3,  and it  could not at all be dealt
\nwith by the High Court. To that extent this appeal will have
\nto be  allowed and an appropriate modification would have to
\nbe made.\n<\/p>\n
     Accordingly, this\tappeal succeeds in part. Proceedings
\nwith regard to khata no. 459 (Bhouli) in Touzi 7535, village
\nParsain were  rightly abated by the High Court and the civil
\nproceeding with\t regard to  khata no.  459 as  a whole would
\nabate leaving  the parties  to get  their rights adjudicated
\nbefore the  authorities under  the Act.\t The  title  of\t the
\nappellants declared  by the  trial court in respect of khata
\nno. 458\t (nakdi) has  become unchallengeable at the hands of
\nBrahmadeo or anyone claiming through him and the
\n563<\/span>
\nabatement of  the second  appeal will  have no impact on the
\ntitle of  the appellants  to khata  no. 458. The declaration
\nmade by\t the trial  court in  respect of  khata no.  458  is
\nrestored. In  the circumstances of the case there will be no
\norder as to costs.\n<\/p>\n
P.B.R.\t\t\t\t    Appeals allowed in part.\n564<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bibi Rahmani Khatoon & Ors vs Harkoo Gope & Ors on 22 April, 1981 Equivalent citations: 1981 AIR 1450, 1981 SCR (3) 553 Author: D Desai Bench: Desai, D.A. PETITIONER: BIBI RAHMANI KHATOON & ORS. Vs. RESPONDENT: HARKOO GOPE & ORS. DATE OF JUDGMENT22\/04\/1981 BENCH: DESAI, D.A. BENCH: DESAI, D.A. ISLAM, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-189549","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBibi Rahmani Khatoon & Ors vs Harkoo Gope & Ors on 22 April, 1981 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bibi-rahmani-khatoon-ors-vs-harkoo-gope-ors-on-22-april-1981\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bibi Rahmani Khatoon & Ors vs Harkoo Gope & Ors on 22 April, 1981 - 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