Kanhaiya Prasad Sah and Others vs The State of Bihar and Others

S.B. Sinha and Radha Mohan Prasad, JJ.—This application raises a question with regard to the effect of a consent decree in a suit where the petitioners were not the parties. The fact of the matter lies within a very narrow compass. Lakshmi Prasad Sah was the original owner of the properly. He died on 29.3.1964 leaving behind three sons and four daughters. The petitioners No. 1 and 3 to 8 are heirs and legal representatives of the three deceased daughters of Lakshmi Prasad Sah and the petitioner no. 2 is one of his daughters. A land ceiling proceeding was initiated as against Jagdish Prasad Sah, who is the son of Late Lakshmi Prasad Sah, and his two brothers. A draft statement u/s 10 (2)of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as ''the Act'') was published. After the draft publication was made, the petitioners filed objection claiming exclusion of land to the extent of their shares which, according to them, devolved upon them in term of the provisions of the Hindu Succession Act, 1956.

The respondent no. 4, by an order dated 4.5.84, rejected the claim of the petitioners, inter alia, on the ground that they had not claimed exclusion of specific plots. The respondent no. 4 further held that as their ancestors died 20 years back, they ought to have got shares demarcated. It was further held that as the sons of the aforementioned Lakshmi Prasad Sah got the lands, partitioned in the year 1969 in Title Partition Suit No. 116/69 wherein the petitioners had not been given any share, their claim cannot be entertained.

An appeal was preferred by the petitioners as against the said order which was also dismissed by the Collector, by an order dated 10.7.90. The petitioners then filed a revision application before the Member, Board of Revenue which has also been dismissed by an order dated 12.2.92. The said orders are contained in Annexures 1, 2 and 3 to the writ application. During the pendency of the revision application, notification u/s 15 (1) of the Act had been published which are contained in Annexure 4 series.

Mr. Arun Prasad Ambastha, the Learned Counsel appearing on behalf of the petitioners has raised a short question in support of this application. The Learned Counsel submitted that in view of the fact that the owner of the land died in the year 1964, the petitioners became his successor-in-interest along with their three brothers and their mother. It has further been submitted that the purported decree passed in the aforementioned Title Partition Suit No. 116/69 was merely a consent decree which was also not given effect to.

Mr. Raghib Ahsan, the learned Standing Counsel appearing on behalf of the State, on the other hand submitted that in view of a decree passed by a competent Civil Court, the remedy of the petitioners was to gel the aforementioned decree set aside and/or raise their grievance in a duly constituted civil suit. According to the Learned Counsel, so long as the decree passed in the aforementioned. Title Partition Suit No. 116/69 is not set aside, the petitioner cannot claim any right, title and interest in relation to the properties of Late Lakshmi Prasad Sah.

By reason of the provisions of the Hindu Succession Act, 1956, the daughters of a person dying intestate also inherit along with their brothers and mother in equal shares, since inheritance of the properly is by reason of operation of statute in terms whereof a valid right, title and interest is created in the properties of the land-holder. Admittedly, in the aforementioned Title Partition Suit No. 116/69, the petitioners were not parties. In that case, a consent decree was passed on the basis of a compromise petition filed by the sons of the aforementioned Lakshmi Prasad Sah.

It is well known that a consent decree is merely an agreement between the parties to the suit with the seal of the court superadded to it. Reference in this connection may be made to a decision in the case of Baldevdas Shivlal and another vs. Filmistan Distributors (India) P. Ltd. and others reported in 1969 (2) Supreme Court Cases 201. In that view of the matter, the consent decree can be questioned on the same grounds upon which an ordinary agreement can be questioned. An agreement merely binds the parties thereto and not others. In this view of the matter, in law, the purported consent decree passed in the aforementioned Title Partition Suit No. 116/69 did not bind the petitioners and/or their predecessor-in-interest. The said consent decree, therefore, was a nullity and inoperative so far as the petitioners are concerned. Thus, it was not necessary for the petitioners to file a suit for setting aside the said decree inasmuch as it is open to them to question the validity thereof even in a collateral proceeding. There cannot be any doubt that normally a Tribunal could not pass any order which is contrary and/or inconsistent to any decree passed by a competent Civil Court but the position in this case is entirely different and the fact of the matter is not disputed at all.

In order to lay a claim with regard to their shares the petitioners were also not obliged to show that they were in actual physical possession of the properties in question upon gelling the same demarcated as per their share. A co-sharer can claim exclusive title to the properly only by merely remaining in possession thereof for a period of 12 years but, in order to acquire indefeasible title in relation thereto, ouster of the other co-sharers has to be pleaded and proved.

In this view of the matter, in our opinion, the authorities under the said Act ought to have considered the claim of the petitioners on its own merits.

For the reasons aforementioned, the impugned order as also the notification cannot be sustained. The Collector under the Act may decide the claims of the petitioners after giving notice of the respondents no. 10 and 11. This application is, thus allowed.