Munsi Pasi and Others vs Thakur Seth and Others

Uday Sinha, J.—This application in revision by the defendants 1st party and defendants 2nd party is directed against the order of the learned Munsif dated 24-8-1978 by which he rejected the application of the defendants (petitioners) praying that the Court should hold that the suit had abated in terms of Section 4 (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter called ''the Act'').

The facts leading to filing of the present application lie within a narrow compass. The plaintiffs and defendants 1st and 2nd pasties are neighbours. The plaintiffs filed a suit for declaration of right of easement to flow drain water on a strip of land measuring 4 links x 73 links. After a pleader commissioner had been deputed, it was found that the land, over which esement was claimed by the plaintiffs, was only 3 links x 66 links out of plot 143 of khata 125. The plaintiffs also claimed right of easement to go over that narrow strip of land (referred to as Koli in the plaint) for the purpose of repairing their house. The plaintiffs further prayer was that the defendants be permanently restrained by injunction from blocking the drain which may not interfere with the free flow of the drain water from the house of the plaintiffs

The contesting defendants, after they had filed their written statement before the trial Court, filed an application stating that the suit had abated in terms of Section 4 (c) of the Act. The trial Court after hearing the parties, rejected the application and held that the suit had not abated. Hence the present application by the defendants.

3A. Learned counsel for the petitioners has submitted that the order of the Court below was erroneous and invalid inasmuch as the suit was barred in terms of Section 4 (c) of the Act. Although the Court below (held), the application of the defendants was in terms of Section 4 (c) of the Act. Mr. Saran for the petitioners stated before this Court that Section 4 (c) was not attracted to the facts of his case but that the entertainment of the suit was barred in terms of Setcion 4 (b) of the Act and, therefore, the trial Court should have dismissed the suit as not maintainable in terms of Section 4 (b) of the Act.

Having heard counsel for the parties, I am of the view that the Act is not at all attracted to the facts of this case. Neither was the entertainment of a suit of the present nature barred nor can a suit of such a nature instituted prior to issuance of notification in terms of Section 3 of the Act abate.

The Act is meant to provide for the consolidation of the holdings and prevention of fragmentation. In pursuance � of this object, Section 3 of the Act lays down that the State Government may issue notification declaring its intention to make a scheme for the consolidation of holidings in any particular area. Section 4 lays down the effect of the notification u/s 3 of the Act. It is necessary here to quote the provisions of Section 4 (b) and (c) of the Act, in so far as they are relevant,--

"4. Upon the publication of the notification under Sub-section (1) of Section 3 in the official gazette the consequences, as herein after set forth, shall subject to the provisions of this Act, from the date specified in the notification till the close of the consolidation "operation, ensue in the area to which the notification relates, namely:--

X X (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 or proceedings such period shall not be counted: provided that nothing in this clause shall apply to any proceedings u/s 48 (E) of the Bihar Tenancy Act, 1885 (Act 8 of 1885) and to the proceedings relating to the recording of the titles of Bataidars.

(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:

X X X"

It will be seen that Section 4 (b) bars the entertainment of any suit or other legal proceeding in respect of any land by any Court. Similarly, in Section 4 (c) every proceeding for correction of records and every suit and proceeding in respect of declaration of rights or interest in any land if instituted prior to the issuance of the notification shall stand abated. Thus, the Act deals with ''land'': other disputes do not fall within the ambit of the Act, ''land'' has been defined and explained in Section 2 (9). It reads as follows:--

" ''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;".

The opening words, it will be appreciated, state that ''land'' means agricultural land, Then there are other categories of property which will also be deemed to be agricultural land, one such category is ''wells and water channels''. Relying upon this definition, learned counsel for the petitioners submitted that the drain in question being a ''water'' channel must be deemed to be included within the definition of land''. I regret I cannot accept this submission. The definition makes it absolutely clear that agricultural land is the dominant object and, therefore, only such water channels can fall within the ambit of the definition of ''land'' as are associated with agricultural operations. In the instant case, there is no averment; that the drain in question is such a water channel as is associated with any agricultural operation. The stand taken by learned counsel for the petitioners in argument that the drain in question over which easement was claimed was a water channel within the meaning of Section 2 (9) of the Act, is not supported by the averment in the petition nor was such a stand taken before the Court below. Upon the averments in the plaint it is obvious that the plaintiffs claimed to discharge drain and refuse water from their house on a strip of land measuring 3 links x 66 links. A drain in the inhabited portion of a village cannot be construed to be water channel associated with any agricultural portion. It has never been the defendants'' case that this drain falls into some bigger drain which is a source of irrigation. That being the position, the drain in question, in respect of which right of easement has been claimed by the plaintiffs, does not fall within the ambit of the definition of ''land'' under the Act. That being the position, neither Section 4 (b) applies to the instant case nor does Section 4 (c). Learned counsel for the opposite parties, in support of his plea that water channel must relate to agricultural land occurring in definition of ''land'', placed reliance upon Ram Pratap Mahto v. Diplal Mahto (1979 BBCJ 738). In that case, the question, which fell for consideration, was whether ''homestead'' fell within the mischief of the expression land'' in Section 2 (9). The trial Court in that case had held that ''homesteads'' do not fall within the mischief of the Act and, therefore, a suit in respect of homestead would not abate consequent upon the issuance of the notification. ''S. Sarwar Ali, Acting C. J. (as he then was), repelled the contention that homesteads are not land. It was observed that when ''homestead'' has been expressly included in the definition of ''land'' it would be doing violence to the meaning of the expression ''land''. His Lordship, therefore, held that homestead was certainly ''land'' but his Lordship explained explicitly that only such homesteads would fall within the ambit of the Act as were associated with agricultural operations; homesteads which were unconnected with agricultural operations would not fall within the meaning of the expression land''. Upon a parity of reasoning ''water channel'' also must have relevance to some agricultural operation in order to constitute land. For the reasons stated above, I am definitely of the view that the water channel, in respect of which the suit had been filed, did not constitute land and, therefore, did not fall within the mischief of Section 4.

There is yet another reason for holding that Section 4 would not bar the entertainment of the continuance of suit of the nature involved in this case. The plaintiffs have not claimed any interest in land itself. They have claimed a right to discharge water and to pass over it for purpose of repairs to their house. The Act prescribes several forms in accordance with which the record of rights is to be prepared in terms of Sections 8 and 9 of the Act. In column 17 of form XVII the consolidation authorities are required to take note of and mention the particulars of lease, mortgage and other encumbrances, if any. The expression ''encumbrance'' has been defined in Section 2 of the Act. The definition sets out that an "encumbrance include the right of an under-raiyat in a holding or part thereof, but does not include a right of easement". In terms of Section 18, where any holding is subject to lease, mortgage or other encumbrance, such lease, mortgage or encumbrance shall, with effect from the date on which possession is taken or delivered u/s 14, be deemed to be transferred and attached to the holding allotted under the scheme to the raiyat or to such part of it as the consolidation Officer may direct. Easement by its very nature is claimed in regard to specific parcel of land. In terms of Section 18, therefore, the right of easement will not stand transferred to any land which may be allotted to any of the parties. Under the Act, therefore, the consolidation authorities cannot enter into any adjudication in regard to right of easement. It is, therefore, reasonable to take the view that right of easement does not fall within the purview of the Act and the suit for declaration of right of easement will not be barred

For both the reasons, I am of the view that the suit can be tried by a civil Court and the order of the learned Munsif is unimpeachable.

For the reasons stated above, there is no merit in this application and it is accordingly dismissed. In the circumstances of case, there will be no order as to cost.

U.C. Sharma, J.

I agree.