Sitaram Prasad Sah vs Damodar Jha and Others

Birendra Pd. Sinha, J.—The substantial question of law involved in this second appeal is whether the suit, the title appeal and this second appeal abate in view of the provisions of Section 4 (c) of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter called ''the Act'') in view of a notification issued u/s 3 of the Act by the State Government bearing S. O. No. 1168 dated 26th of November, 1970.

After having lost in the title suit and in the title appeal, the plaintiff has filed this second appeal. The plaintiff filed the suit for declaration of title to and recovery of possession over the suit land mentioned in Schedule I of the plaint and for mesne profits against respondents 1st party or in the alternative for a money decree for a sum of Rs. 850/- against respondents second party. The suit was dismissed on the findings that the plaintiff had failed to prove his title and possession and had also failed to prove the Kewala in question a genuine, valid and for consideration. The lower appellate court has affirmed both the findings of the trial court.

The plaintiff filed an affidavit on 25-2-1980 stating, inter alia, that a notification had been published u/s 3 of the Act on 26-11-1970 to prepare a scheme for consolidation of holdings in Righa Block of Sitamarhi district where the disputed land is situate. Upon this basis, the sub-stantial question referred to above was framed by this Court and the appeal was admitted.

Mr. Bishwanath Agrawal, learned counsel appearing on behalf of the ap pellant has submitted that in view of a Special Bench decision of this Court in Ramkrit Singh and Others Vs. The State of Bihar and Others, it must be held that the suit, the title appeal and his second appeal have all abated. On the other hand, Mr. Binod Kumar Roy, learned counsel appearing on behalf of the respondent No. 1 sub mitted that in view of two independent reliefs having been claimed by the plaintiff, the entire suit or the appeal cannot abate. Mr. Roy agrees that the suit in respect of the declaration of title and recovery of possession abates, but not the suit or the appeal in respect of the money decree. There is substance in the contention raised by Mr. Roy. This suit was a composite suit in which the prayer was made for declaration of title and recovery of possession against defendants first party. In the alternative, a prayer was made for recovery of money from defendants second party. The two reliefs prayed for were quite independent from one another. It cannot be assumed that the entire suit or the appeal must abate on the publication of a notification u/s 3 of the Act. It will depend upon the nature of the suit and where the question in controversy cannot be looked into or decided by the Consolidation Officer, the suit in relation to that matter will not abate. In the case of Ram Krit Singh (supra) this view was taken that the question of abatement will depend upon the nature of the suit arid in a composite suit, the suit may abate ui respect of one relief but may not abate in respect of the other. In the case of Ramayan Singh v. Harbansh Singh (1979 (1) BLJR 493 it was held that in a partition suit, the suit in respect of houses, cash money and orchard did not abate and the suit in respect of the said items could pro ceed. In an unreported decision, a Divi sion Bench of this Court in Rajendra Chaudhary v. Kamal Choudhary in Civil Revn, No. 494 of 1977, decided on the 4th of July. 1979 has taken the same view.

In facts and circumstances of this case, therefore, it must be held that the plaintiff''s suit, the title appeal and this second appeal have abated in view of Section 4 (c) of the Act in respect of the plaintiff''s relief for declaration of title and recovery of possession over the suit lands against defendants 1st party. Accordingly, I hold that the plaintiff''s suit, the title appeal and this second appeal and the judgment and decrees passed by the two courts below in respect of the plaintiff''s claim for declaration of title and recovery of possession have abated. Mr. Bishwanath Agrawal very fairly conceded that he has nothing to say in respect of the alternative prayer of the plaintiff for recovery of money in view of the concurrent finding of both the courts below. That being the position, this second appeal in respect of the alternative prayer, namely, for recovery of money is dismissed. There shall, however, be no order as to costs.