Raja Mahto and Another vs Mangal Mahto and Others

B.P. Jha, J.—I shall dispose of these two appeals, namely, Second Appeals Nos. 289 and 290 of 1976, by a common judgment as these two appeals arise out of a common judgment passed by the Civil Court.

Title Suit No. 87/76 of 1961-62 was filed for a declaration of title and recovery of possession and Title Suit No. 17/24 of 1963-66 relates to partition. Both the suits were tried together and one judgment was delivered by the trial Court and by the appellate Court. In this Court, against the judgment of the appellate Court, these two appeals viz; Second Appeals Nos. 289 and 290 of 1976, have been filed. One Mangal Mahto, respondent in both the appeals, has filed an application to the effect that a notification has been published u/s 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as ''the Act''). It is, therefore, stated in the supplementary affidavit that the suits and the appeals abated u/s 4 (c) of the Act.

It is, therefore, relevant to quote Section 4 (c) of the Act, which runs thus :--

"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."

On a perusal of this section, it is clear that the abatement takes place in respect of a proceeding or a suit, pending before the Court with respect to declaration of title or interest in any land where consolidation proceeding is going on. Section 4 (c) of the Act also provides that suit, appeal or revision will abate. On a perusal of this section, it is clear that neither the decree or preliminary decree nor final decree will abate as there is no such provision u/s 4 (c) of the Act. Section 4 (c) of the Act envisages abatement of a suit, appeal, reference or revision. Section 4 (c) of the Act does not state about the abatement of decree or preliminary decree or final decree. This view has been upheld by a decision of the Division Bench of this Court in the case of Dr. Jagdish Prasad Vs. Satya Narain Singh and Others, . As a single Judge, I am bound to follow the decision of the Division Bench.

Learned counsel for the appellants has relied of a decision in Ram Adhar Singh Vs. Ramroop Singh and Others, . It is stated in this decision that u/s 4 (c) of the Act, the suit or appeal will abate. This decision does not help the learned counsel for the appellants. Learned counsel for the appellants has also relied on a decision of the Supreme Court in Gorakh Nath Dube Vs. Hari Narain Singh and Others, . In this case, their Lordships were pleased to set aside the decree of the High Court in view of the application of the principle of abatement. This is a judgment of two Hon''ble Judges, namely, the Hon''ble Mr. Justice K. K. Mathew and the Hon''ble Mr. Justice M. H. Beg. The views of these two Hon''ble Judges were not followed by the three Hon''ble Judges in Satyanarayan Prasad Sah and Others Vs. State of Bihar and Another, . Their Lordships quoted in para 2 of the judgment as follows :--

"True, the petitioner is right in saying 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 of course, means that the civil proceeding comes to nought."

Therefore, the judgment of the three Hon''ble Judges of the Supreme Court were of the opinion that the decree passed by the trial Court is not nullified u/s 4 (c) of the Act I am bound to follow the decision of the three Hon''ble Judges of the Supreme Court.

I am, therefore, of the opinion that u/s 4 (c) of the Act, the suit, appeal, reference or revision abates and not the decree or preliminary or final decree abates.

In the result, suits and both these appeals, viz., Second Appeals Nos. 289 and 290 of 1976, have abated before this Court. The decree or preliminary decree passed in suits and in both the appeals have not abated.