Surendra Singh @ Surendra Prasad Singh vs Radhe Krishna Singh and Others

Navaniti Pd. Singh, J.—The present revision application is directed against the order passed by learned Sub-Judge VII, Vaishali at Hajipur in Title Suit No. 228 of 2004 whereby the Court has held that the suit stands abated in terms of the provisions of the Bihar Consolidation of Holdings & Prevention of Fragmentation Act, 1956 (In short "The Act"). The plaintiff is the petitioner before this Court. The opposite parties were defendants who raised the objection and succeeded. Heard both the parties. On behalf of petitioner, it is stated that in view of the liberty granted to him by the order of the Division Bench disposing of his Letters Patent Appeal, his subsequent suit was maintainable and the learned trial Court erred in ordering the abatement of the suit, rather it acted contrary to and in defiance of the order passed in the petitioner''s Letters Patent Appeal. Accordingly, the order impugned has to be set aside. The title suit in question is a partition suit simpliciter which has been ordered to have abated.

It is not in dispute that the petitioner had filed a revision application as contemplated u/s 35 of the Act challenging the orders of the consolidation authorities. The said revision application was dismissed on 15.3.1992. That being the final forum under the Act for ret.essal of grievances, the petitioner filed a writ application before this Court being CWJC No. 5331 of 2000. The writ application was dismissed in limine noticing that the challenge was to an order passed more than six years back without any explanation for the delay. Against the said order, a Letters Patent Appeal being LPA No. 1078 of 2003 was preferred by the petitioner. The said appeal was also dismissed but while dismissing, this Court held as under:

However, dismissal of the writ application will not stand in the way of the appellant to agitate the matter before the Civil Court in accordance with taw in view of the decision of the Full Bench of this Court in the case of Seikh Haidar Zan Vs. Md. Yusuf Ansari and Another, .

The petitioner asserts that it is pursuant to the aforesaid observation that he filed the present Title Suit being Title Suit No. 228 of 2004 which, as stated above, on objection of the defendant-opposite party, by order dated 18.5.2005 ordered to abate and await closure of consolidation proceedings. This is the impugned order. The learned counsel for the petitioner has placed reliance on a Full Bench decision of this Court, namely, Seikh Haidar Zan Vs. Md. Yusuf Ansari and Another, for the proposition that the entry pursuant to notification u/s 16 of the Act for correction of entries in the revisional survey is amenable to challenge in Civil Court and, as such, notification u/s 16 of the Act having been issued, the suit was maintainable and would abate. I regret the submission is devoid of merit. In order to appreciate the scheme of the Act, I may notice that Section 3 of the Act provides for a preliminary notification by which the intention of the Government to initiate proceedings for consolidation is made in respect of any area. Section 4 is the effect of notification u/s 3(1) of the Act. Substantive part of Section 4 is quoted here for ready reference:

Effect of notification u/s 3(1) of the Act.-Upon the publication of the notification under sub-section (1) of Section 3 in the official gazette the consequences, as hereinafter 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-

(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 and proceedings such period shall not be counted:

(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:

A reference to Section 4 would show that upon notification u/s 3(1) and subject to provisions of the Act from the date specified in the notification till the closure of consolidation operation. the following effects ensue firstly it bars any suit or other legal proceedings in respect of any land in such area. Further in respect of pending suits for correction of records or for declaration of right and interest in the land lying in the area notified or for adjudication of any other right pending before any Court at any stage, the proceedings shall abate. It would, therefore, be seen that Section 4 of the Act in terms restricts remedy to Civil Court for the period during which consolidation proceedings are pending that is from the time notification u/s 3(1) of the Act is issued tilt the closure of the consolidation proceedings. What is closure of consolidation proceedings is not far to be found. It is Section 26A of the Act which specifically has the heading "Close of the consolidation operations". Therefore, till a notification is issued u/s 26A of the Act declaring closure of the consolidation operations, the bar, as contemplated u/s 4 continues to operate.

It is submitted on behalf of the petitioner that once the scheme is confirmed and finally published in terms of Section 16 of the Act and the parties having exhausted all remedies up to Section 35 of Act, the parties in terms of the Full Bench decision aforesaid would be free to institute suits in respect of any and every matter. I am afraid this is neither the proposition as laid down by the Full Bench nor a correct proposition in fact or in law. The reason is simple, if Section 16 of the Act was final in all respects then the proceedings would have ended with a notification u/s 16 of the Act itself. There would be no requirement of a further notification u/s 26A of the Act. But it is not so. The reason is that even after notification u/s 16 of the Act, it is subject to revisional corrections as contemplated u/s 35 of the Act at the behest of parties or by the revisional authority suo motu without any party moving it. This revisional power can be exercised by the revisional authority up to the time when final notification u/s 26A of the Act is not issued. Therefore, it would be seen that a notification or a final confirmation of scheme u/s 16 of the Act by itself is not final. It is open to correction by internal machinery as provided which stops operating only on a final notification issued u/s 26A of the Act. It is on issuance of the said notification that the consolidation operation close and the bar u/s 4 is removed. Suits which had abated earlier revive. Fresh suits can be filed. It is in this context that the Full Bench (supra) has held that entries pursuant to Section 16 of the Act is amenable to challenge before Civil Court. From para-graph-40 of the said judgment, it would be apparent that their Lordships, constituting the Full Bench, have held that in the earlier Full Bench judgment of this Court in the case of Ramkrit Singh and Others Vs. The State of Bihar and Others, , there were observations that once suits revive, they have to abide by orders of the consolidation authority. In other words, what the earlier Full Bench had observed was that final orders of authorities under the Consolidation Act would be binding on Civil Courts. This observation was specifically disappeared (sic-noticed?) by the present Full Bench and it is in this context it was held that record of rights published pursuant to Section 16 of the Act are amenable to challenge in Civil Court. In my view, this later Full Bench is no authority for the proposition that once notification has been issued u/s 16 of the Act and a party has exhausted remedy u/s 35 of the Act, a suit is maintainable notwithstanding the clear statutory terms as contained in Section 4 of the Act. I, therefore, hold that so long as a notification u/s 26A of the Act is not issued, Section 4 would continue to operate in respect of all matters covered therein. Before I am misunderstood, I may clarify that the scope of suits which will not abate is not being dealt with in the present case as it is not relevant. The present suit was a suit for partition. I, accordingly, find no merit in this application and it is dismissed accordingly.