Brahamdeo Rai and Others vs Nagina Rai and others

Abhiram Singh, J.—This appeal is directed against the judgment and decree dated 25th February, 1971 and 24th March, 1971 respectively passed in T.S. No. 43 of 1967 which had been filed for partitioning the lands described in several schedules of the plaint and for allotting 1/3rd share in the entire lands to the plaintiffs. The case of the plaintiffs-respondents is that the common ancestor of the parties. Ramautar, had three sons, namely, Raghu Nandan Rai, Bhawani Rai and Raghunath Rai The plaintiffs are the sons of Bhawani Rai, defendants first party are the descendants of Raghu Nandan Rai and defendants second party are the descendants of Raghunath Rai. On the basis of this genealogy, the plaintiffs claimed 1/3rd share in the entire lands which were the subject matter of the partition suit. The defendants-first party contested the suit on several grounds. The case of defendants first party is also that most of the lands in question were the self acquired property of the branch of Raghunandan Rai. One written statement was also filed on behalf of Nathuni Devi, defendant no. 11 (intervenor) supporting the case of the defendants-first party to some extent but she also claimed share in the entire properties. Several issues were framed in the court below and the suit was decreed allowing the plaintiffs 1/3rd share in the entire lands in question. It is against this decision that The present appeal has been preferred-

When the argument advanced on behalf of the appellants was heard, at length, the learned counsel appearing on behalf of respondent no, 6 (Nathuni Devi) raised a technical point to the effect that the present appeal has abated u/s 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter to be referred to as ''the Act''). The learned counsel appearing on behalf of the appellants and the learned counsel appearing on behalf of the respondents were heard on merit of the appeal. Several questions viz. whether there was severance of joint status of joint family and which properties were self acquired properties arose during the course of the arguments advanced on behalf of all the parties. To my mind it appears that if the appeal stands abated, then, it would be futile to discuss the remaining points raised in the appeal. I would, therefore, like first to decide the point raised on behalf of the learned counsel for the respondent no. 6 that the present appeal stands abated. If this contention of the learned counsel appearing on behalf of respondent no. 6 is accepted, then there would be no necessity to give findings on the other points raised on behalf of the parties to this appeal.

The learned counsel appearing on behalf of the appellants has submitted that according to Section 4(c) of the Act the suit or proceeding pending in any court will abate only when an order in that behalf is passed by the court and not otherwise. According to him no such occasion arose for passing such order regarding abatement as none of the parties had pressed for it. He has further submitted that the facts of the instant suit are not such in which order regarding abatement should be passed. He has further submitted that the instant title suit was filed on 13.6.1967 and was decreed on 25.2.1971. Thereafter this appeal was preferred, but respondent no. 6 never raised this point except at the time of the argument. According to him the order in revision case regarding the lands in question was passed on 25.5.1984 by the Deputy Director of Consolidation. Against that order of the Deputy Director of Consolidation respondent no. 6 filed C.W.J.C. No. 4863 of 1984 which was disposed of on 1.2.1985. Learned counsel appearing on behalf of Respondent No. 6 did not raise the issue regarding the abatement even in the writ case. According to him the palaintiff had the occasion to raise this point regarding the abatement in the writ case and it was not raised and, therefore, it can not be raised in the present appeal as the same is hit by the principle of res judicata. According to him the principle of res judicata (Section 11 of the Code of Civil Procedure) is also applicable in writ cases in view of the Supreme Court decision. He has further submitted that the defaulting litigant cannot be allowed to raise the plea of abatement when he slept over the matter for a considerable long time. The learned counsel appearing on behalf of respondent no. 6, on the other hand, has submitted that the consolidation proceedings are still going on in the area in which the lands in question lie and so the instant appeal will evidently abate u/s 4(c) of the Act. He has further submitted that there has not been a notification for close of the consolidation proceedings till now in the concerned area. According to him the facts of the case are not such in which the order for abatement cannot be passed. It is only in that case in which the relief cannot be granted by the consolidation authority that the suit will not abate and proceed in the civil court. He has further submitted that issues which were framed in the trial court do not indicate anything which consolidation authority cannot decide. According to him section 8(a) of the Act clearly lays down that the consolidation authority may partition joint holdings on the basis of the shares. So far as the principle of res judicata raised by the learned counsel appearing on behalf of the appellants in concerned, the learned counsel appearing on behalf of Respondent no. 6 has submitted that the order for abatement can be passed only in the instant appeal and so there could not have been any occasion to raise this plea in the writ case.

The learned counsel appearing on behalf of the appellants has relied on a decision of the Full Bench of this Court in the case of Sheo Ratan Chamar and others vs. Ram Murat Singh and other (A.I.R. 1985 Patna 179 : 1985 PLJR 86) which is based on the decision of the Supreme Court in the case of Gorakh Nath Dubey vs. Hari Narain Singh and others (A.I.R. 1973 Supreme Court 2451) to support the point that in certain nature of title suits the order regarding abatement would not be passed.

But on a careful consideration of the afore said two decisions relied upon by the learned counsel appearing on behalf of the appellants it appears that the principle of law enunciated in those decisions are not applicable in the present case. The Full Bench decision of this Court deals with a case in which the plaintiff-respondents had filed a suit for setting aside a sale deed on the basis of the absence of the legal necessity, non-payment of any consideration money and lack of bonafide enquiry. The Full Bench decision clearly laid down that the proceeding would abate if'' such document is void and not in the case when the same is voidable and has to be set aside by the court after adjudication. This principle of law was laid down by the Full Bench of this Court on the basis of the principle laid down in the aforesaid decision of the Supreme Court in the case of Gorakh Nath Dubey vs. Hari Narain Singh and others (supra). The suit relating to the aforesaid Supreme Court decision had been also filed for the cancellation of a sale deed to the extent of half share claimed by the plaintiff. There is no doubt that then Lordships of the Supreme Court laid down above mentioned principle of law while deciding whether the concerned suit had also abated under the similar provisions laid down in U.P. Consolidation of Holdings Act, 1954 but finally it was decided that the suit of the plain tiff had abated. It is thus clear that even at the stage of the suit when pending in the Supreme Court the order of abatement of the concerned suit was passed. It is, therefore quite clear that for passing any order of abatement the nature of the case has to be considered. lt is only in the case of setting aside voidable documents that the suit will not abate. In the instant suit there does not arise any question of any voidable document. The learned counsel appearing on behalf of Respondent No. 6 has rightly contended that this is purely a partition suit and the issues framed in the suit do not indicate that any question regarding setting aside of voidable document would arise. He also appears to be correct, when he says that in view of the provisions laid down in Section 8(a) of the Act the consolidation court may partition join holdings and, therefore it can also go into the question as to which party is entitled to what share in which land. It is also clear that none of the parties in the instant case has prayad for setting aside any document, and as such there does not arise any question of setting aside any voidable document. In this view of the matter, both the aforesaid decisions relied upon by the learned counsel for the appellants are of no avail to him.

So far as the question of the principle of res Judicata as submitted by the learned counsel for the appellants is concerned, it does not appear to be applicable in the present case. In any view of the matter, the order regarding abatement can be passed in only this appeal and it could not have been passed in the aforementioned writ case filed OD behalf of respondent no. 6. It is true that in the aforesaid writ case it was ordered that in case this appeal is allowed the appellants will be entitled to make application for correction of the entry in the records of consolidation proceeding. But this does not mean that the writ court passed an order that this Court cannot pass an order of abatement in the instant appeal.

The learned counsel appearing on behalf of the appellants has also relied on a decision of this Court in the case of Jai Prakash Prasad and others vs. Rameshwar Prasad and others (1986 P.L.J.R. 240) to support his point that respondent no. 6 has approached this Court for passing an order for abatement under the said Act at a belated stage. In this decision it was held "a defaulting litigant cannot be allowed to raise a plea of abatement u/s 4(c) of the Act for the first time in Second Appeal, if he designedly or negligently failed to do so in the trial court and in the first appellate court". The principle laid down in this decision is not applicable in the instant case as at the first instance the plea of the abattement has been taken at the first appellate court stage and not at the second appeal stage. Besides this, this decision has also taken note of the fact that question of abatement necessitates adjudication on various issues such as, whether document relied upon is void or voidable. It is clear that in this case the question regarding voidable document does not arise. Hence the submission of the learned counsel for the appellants that the defaulting litigant cannot be allowed to raise the plea of abatement u/s 4(c) of the Act cannot be accepted in the instant case. The learned counsel for the appellants has also placed reliance on a Division Bench decision of this Court in the case of Dharamnath Pandey vs. Dhunmun Manjhi (1985 P.L.J.R. 345). This decision is also mainly based on the principle of law laid down in the Supreme Court decision in the case of Gorakh Nath Dubey vs. Hari Narain Singh and others (supra). Hence it does not need any consideration as I have already discussed above about the applicability of tie aforesaid decision of the Supreme Court in the instant case.

The learned counsel appearing on behalf of respondent no. 6 has relied on a decision of this Court in the case of Most. Jagani and others vs. Sheo Pratap Dnbey and others (1984 B.L.J. 423 : 1984 PLJR (NOC) 29. It has been held in this decision that "it is well settled that once a notification u/s 3 (1) of the Act is published, not only the second appeal abates but the judgments and decrees of the two courts below also became nonest as they would also leaving the consolidation authority free to decide the proceedings before them". He has further placed reliance on a decision of this Court in the case of Deo Chandra Jha vs. Markande Missir and others (1985) B.B.C.J. 362; 1985 PLJR (NOC) 80. In this case the question regarding abatement u/s 4(c) of the Act came up in second appeal. Originally the suit was filed in the trial court for partition of the lands. It was held in this decision also that the second appeal as well as the judgment and decree of lower appellate court and the trial court abated u/s 4(c) of the Act. The learned counsel appearing on behalf of respondent no. 6 has also placed reliance on a decision of the Supreme Court in the case of AIR 1975 1499 (SC) . In this case the matter came up before the Supreme Court whether the suit abated at that stage under the provisions of U.P. Consolidation of Holdings Act, 1953. Their Lordships of the Supreme Court decided that not only the appeal pending before the Supreme Court but also the suit abated u/s 5 (2) of the U.P. Consolidation of Holdings Act, 1953. The parties were ordered to work out their rights before the appropriate consolidation authorities.

The learned counsel appearing on behalf of the appellants has also submitted that no formal application has been filed in the instant case to pass an order regarding abatement. But in my opinion it is not mandatory to file a formal application for passing an order on the point of abatement. There cannot be any legal bar for raising the point regarding abatement at the stage of first appeal. It is, of course, true that this plea regarding abatement cannot be raised when there has been a notification in the official gazette u/s 26(a) of the Act that the consolidation operations have beer closed in the area concerned. But it has not been challenged on behalf of the appellants that till now there has not been any notification in the official gazette regarding the close of tie consolidation operations in the concerned area under the aforesaid Act.

In view of my above discussion, 1 find that there is substance in the contention raised on behalf of the learned counsel for respondent no. 6 that the instant appeal has abated u/s 4(c) of the Act. I, therefore, hold that this appeal as also the suit out of which this appeal arose stands abated till the close of the consolidation operations. In consequence the judgment and decree passed by the learned court below are also set aside. With the above finding and order the appeal is disposed of. In the circumstances of the case, there will be no order as to costs.