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PETITIONER: BIBI RAHMANI KHATOON & ORS.

       Vs.

RESPONDENT: HARKOO GOPE & ORS.

DATE OF JUDGMENT22/04/1981

BENCH: DESAI, D.A. BENCH: DESAI, D.A. ISLAM, BAHARUL (J)

CITATION:  1981 AIR 1450            1981 SCR  (3) 553  1981 SCC  (3) 172        1981 SCALE  (1)739

ACT:      Bihar  Consolidation  of  Holdings  and  Prevention  of Fragmentation  Act,  1956-Section  4(1)(c)-Scope  of-Section provides that,  without prejudice  to rights  of parties all pending proceedings at any stage before any court in respect of lands  taken up for consolidation shall abate-Plaintiffs’ suit for  declaration of  title decreed-Notification  issued when   appeal    pending   before   High   Court-Effect   of notification-Whether judgment  and  decree  of  trial  court would abate.

HEADNOTE:      Section 4(1)(c)  of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 provides that upon the issue  of a  notification under  section 3(1) of the Act every proceeding  pending before  any  court  or  authority, whether of  the first  instance or  of appeal  shall, on  an order being  passed in that behalf by the Court or authority before whom  such  suit  or  proceeding  is  pending,  stand abated.  The   proviso  to  the  section  enacts  that  such abatement shall  be  without  prejudice  to  the  rights  of persons affected  to agitate the right in dispute before the appropriate consolidation authorities in accordance with the provisions  of  the  Act.  The  State  Government  issued  a notification under section 3(1) of the Act.      The  plaintiffs’   (appellants  herein)   suit  for   a declaration of their title and for recovery of possession of agricultural lands  bearing khata  Nos. 458  and 459 against defendants (respondents  herein and  three other defendants) was decreed  by the  trial court.  Defendant No.  7  claimed interest in  Khata No. 458 only while the other defendants 1 to 4  claimed interest  in Khata  No.  459.  On  appeal  the Additional District  Judge affirmed  the decree of the trial court. Defendant  No. 7  died  when  the  first  appeal  was pending  before   the  District  Judge.  Neither  his  legal representatives  nor   any  one   claiming  under  him  were substituted nor  was an  appeal preferred  by any of them to the High Court.      Before the  High Court  the defendants 1 to 4 submitted that the work of consolidation of holdings in respect of the lands in  dispute having  been taken  up  by  the  concerned authorities consequent  on the issue of a notification under

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section 3 of the Act the appeal would abate by virtue of the provisions of section 4 of the Act. Accepting the contention the High Court held that the appeal abated and set aside the judgment and  decree of  the courts below in respect of both Khatas 458 and 459.      In appeal  to this  Court it was contended on behalf of the appellants-plaintiffs that (1) even if the second appeal abated in  respect of Khata No. 459 the High Court could not set aside the judgment and decree of the trial court as well as of  the first  appellate court both of which became final and (2) in any event, on the 554 death of  defendant No.  7 during  the pendency of the first appeal,  his   legal   representatives   having   not   been substituted, his  appeal abated  and  none  of  the  present respondents had any interest in the property. Therefore, the High Court  was in  error in setting aside the decree of the trial court in so far as that property was concerned.      Dismissing the appeal in part, ^      The effect  of a notification issued under Section 3 of the Act  bringing a  land in  dispute in  a civil proceeding under a  scheme of  consolidation is  that  the  proceedings pending in  the civil  court either  at the  stage of trial, appeal or  revision would come to naught. The High Court was right in holding that the second appeal abated in respect of Khata No.  459 and that the judgment and decree of the trial court and  the first appellate court stood abated along with those proceedings. [562 G-H]      When a  scheme of  consolidation is undertaken, the Act provides for adjudicating of claims by the authorities under the Act.  In order  to permit them to pursue adjudication of rival claims unhampered by any proceedings in civil courts a wholesome  provision   is  made   that  pending  proceedings involving claims  to land  at whatever  stage they might be, should abate.  To avoid conflict between rival jurisdictions the Act  provides that  such proceedings  should be examined exclusively by  the authorities under the Act. Provision has been made for abatement of pending proceedings as well. [558 F-G]      The concept  of abatement known to civil law is that if a party  to a  proceeding dies either in the course of trial or appeal  or revision  and the  right to  sue survives, the heirs and  legal representatives of the deceased party would have to  be substituted, failure to do which would result in abatement of  the proceedings.  If a  party to  an appeal or revision dies  and if  the appeal or revision abates it will have no  impact on  the judgment,  decree or  order  against which the  appeal or  revision is preferrers. Such judgment, decree or order under appeal or revision would become final. [559 B-D]      But the  abatement contemplated by section 4 of the Act is of  a different  kind. If  the concept  of  abatement  as understood in  the Code  of Civil Procedure is imported into this case,  it would do irreparable harm to the parties. For example, if  an appeal  abates rendering either the judgment of the trial court or the judgment in the first appeal final and binding  the consolidation  authorities  would  also  be bound by  it and  the party  whose appeal or revision abated would  lose  the  chance  of  persuading  the  appellate  or revisional authority  to accept its case which may result in interfering with  or setting  aside  the  judgment  etc.  in appeal. That this could not be the intention of section 4 is manifest from  the proviso  to clause  (c) of  section 4. By virtue of  the proviso  no one  would  stand  to  suffer  on

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account of  abatement because  a special forum is carved out for adjudication of the rights of parties. [559 E-G]      Ram Adhar  Singh v.  Ramroop Singh  and  ors  [1968]  2 S.C.R. 95,  Chattar Singh  and Ors.  v. Thakur Prasad Singh, A.I.R. 1975  SC 1499,  and Satyanarayan  Prasad and  ors. v. State of Bihar and Anr., A.I.R. 1980 SC 2051; referred to. 555      The High  Court  was  in  error  in  holding  that  the judgment and decree in respect of Khata No. 458 also abated. Defendant No.  7 claimed  separate, specific  and  exclusive right in  respect of  that Khata.  On his  death  his  legal representatives having  not  been  substituted,  his  appeal abated. His  legal representatives  did not prefer an appeal to the High Court. The appellants’ title in respect of Khata 458 therefore  became established  under the  decree of  the trial court. The abatement of the second appeal will have no impact on the appellants to Khata No. 458. [562 C-E]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1359 of 1981.      Appeal by  special leave  from the  judgment and  order dated the  18th August,  1979 of  the Patna  High  Court  in Second Appeal No. 697 of 1974.      B.P. Singh for the Appellants.      S.K. Mehta for the Respondents.      The Judgment of the Court was delivered by      DESAI, J.  Mst. Bibi  Rahmani Khatoon  and others filed Title  Suit   No.  3/70  in  the  Court  of  the  Additional Subordinate Judge I, Gaya for declaration of their title and for recovery of possession of agricultural lands admeasuring 4 acres  29 gunthas  comprised in two holdings bearing khata nos. 458 (nakdi) and 459 (Bhouli) in Touzi No. 7535 situated in village  Parsain. The  defendants in  the suit  were  the present respondents  and three  others defendants  Nos. 5, 6 and 7. One Brahmadeo was defendant 7 claiming an interest in khata no.  458 on the basis of a sale deed executed on March 31, 1959,  by one Deonandan Singh who was defendant 5 in the trial court. It must be made distinctly clear that Brahmadeo claimed  interest   in  khata  no.  458  while  the  present respondents claimed  interest in  khata no.  459  only.  The trial court  decreed the  suit declaring that the plaintiffs were the  owners of  both the  khatas and  were entitled  to recover possession of the same.      Title Appeal No. 7/74 was preferred in the court of the Distt. Judge,  Gaya, and  it was heard by the learned Fourth Addl. District  Judge as  per his  judgment and decree dated July 12,  1974. The  learned Addl.  District Judge dismissed the appeal and affirmed the decree of the trial court.      Present respondents  alone preferred  Second Appeal No. 697/74 in  the High Court of Judicature at Patna. It must be specifically 556 mentioned  that  neither  defendant  7  Brahmadeo  who  died pending the appeal before the District Court and whose legal representatives were  not  impleaded,  nor  anyone  claiming under him  either came  to  be  substituted  in  the  appeal pending in  the District  Court nor  any of  them  preferred appeal to  the High  Court. This  has some  relevance to the disposal of the appeal before us and, therefore, it has been categorically set out.      Harkoo Gope  and three  others who  claimed interest in khata no.  459 only,  preferred second  appeal  against  the

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dismissal of  their appeal by the learned Distt. Judge. When the Second  Appeal No. 697/74 was pending in the High Court, an  affidavit   was  filed   on  behalf  of  the  appellants (respondents in  this Court)  on November  16, 1978, drawing attention of  the Court  to a  notification under s.3 of the Bihar  Consolidation   of   Holdings   and   Prevention   of Fragmentation  Act,  1956  (’Act’  for  short)  and  further intimating to  the Court  that  the  village  in  which  the disputed khatas were situated was taken up for consolidation of holdings  and, therefore,  the appeal pending in the High Court would abate in view of the provision contained in s. 4 of the  Act. The  High Court  accepted  the  submission  and disposed of  the appeal  by its order dated August 18, 1979, the operative portion of which reads as under:           "The appeal  abates and  the judgments and decrees      of both the courts below are hereby set aside as having      abated". Original plaintiffs having been dissatisfied by the order of the High  Court not only abating the second appeal preferred by the  respondents but also setting aside the judgments and decrees of  the trial court and the first appellate court as having abated, have preferred this appeal by special leave.      Shri B.P.  Singh, learned  counsel who appeared for the appellants contended  that even  if the Second Appeal abates by virtue  of the provision contained in s. 4, on issue of a notification under  s. 3  of the  Act, the High Court cannot set aside  the judgments  and decrees of the trial court and the first appellate court as according to him when an appeal abates the  judgment and  decree of  the court against which the appeal is preferred becomes final. The second contention of the  learned counsel is that in any view of the matter as the present respondents had no interest in khata no. 458 and as Brahmadeo on sale to him by Deonandan Singh alone claimed interest in  khata no.  458 and since the death of Brahmadeo when the 557 first  appeal   was  pending   and  his   heirs  and   legal representatives having  not been substituted, the appeal qua him in  respect of  khata no. 458 had abated and the present respondents could  not have  preferred appeal  in respect of khata no.  458 and, therefore, the High Court could not have set aside the decree in respect of khata no. 458.      Section 3  of  the  Act  confers  power  on  the  State Government to make a declaration of its intention to frame a scheme  for   consolidation  of  holdings.  When  the  State Government entertains  an intention  to make  a  scheme  for consolidation of  holdings in  a given  village, it  has  to issue a  notification declaring  its  intention  to  make  a scheme for  the consolidation  of holdings  in the specified area. Section  4 provides  that upon  the publication  of  a notification under  sub-s. (1)  of s.  3,  the  consequences enumerated in  s. 4  shall ensue. One such consequence is as set out in sub-clause (c) which reads as under:-      "4. Effect  of notification  under section  3(1) of the      Act-           Upon the  publication of  the  notification  under           subsection  (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  operations           ensue  in  the  area  to  which  the  notification           relates, namely:-      (c)  every proceeding for the correction of records and           every  suit   and  proceedings   in   respect   of

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         declaration of  rights of  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". There are  as many  as 5  provisos to clause (c) of s. 4 but only one is material which reads as under: 558           "Provided further  that such  abatement  shall  be           with out  prejudice to  the rights  of the persons           affected to  agitate  the  right  or  interest  in           dispute in  the said  suits or  proceedings before           the appropriate  consolidation  authorities  under           and in  accordance with the provisions of this Act           and the rules made thereunder".      Present appeal  arises out  of  a  suit  filed  by  the present appellants,  who were  plaintiffs, for a declaration of  their  title  and  consequential  relief  of  possession meaning that  it was  a suit concerning agricultural land to which title  was claimed and disputed. This suit was pending in Second Appeal at the instance of the respondents when the notification under  s. 3 (1) came to be issued. Accordingly, s. 4  (c) would  be attracted  and the necessary consequence statutorily  prescribed,   must  ensue.   Therefore,  it  is incontrovertible that  the second  appeal would  abate. Shri Singh, learned  counsel for  the appellants does not dispute this legal consequence.      The grievance  of Shri  Singh is  that the  High  Court while making  an order  declaring that the second appeal has abated, was  in error  in setting  aside the  judgments  and decrees of the trial court as well as of the first appellate court which  were in favour of the present appellants on the ground that  those proceedings  have also  abated. At  first blush this  argument is  very attractive  but if accepted it has a potentiality of doing irreparable harm.      When a  scheme of  consolidation is undertaken, the Act provides for adjudication of various claims to land involved in consolidation by the authorities set up under the Act. In order to  permit the  authorities so  pursue adjudication of rival claims  to land unhampered by any proceedings in civil courts, a  wholesome provision  was made  that  the  pending proceedings involving  claims to  land in  the hierarchy  of civil courts, may be in the trial court, appeal or revision, should abate.  This  provision  was  made  with  a  view  to ensuring unhampered  adjudication of  claims to  land before the authorities  under the  Consolidation Act  without being obstructed by  proceedings in  civil courts or without being hampered or  impeded by decisions of the civil courts in the course of  consolidation of  holdings.  In  order  to  avoid conflict consequent upon rival jurisdictions the legislature provided that  the proceedings  involving the claims to land put in consolidation should be exclusively examined 559 by the authorities under the Consolidation Act and all rival jurisdiction  would   be  closed.   Simultaneously  it   was necessary to  deal with  the pending proceedings and that is why the provision for abatement of such proceedings.      The concept  of abatement  is known  to civil law. If a party to  a proceeding  either in  the trial  court  or  any appeal or  revision dies  and the right to sue survives or a claim  has   to   be   answered,   the   heirs   and   legal

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representatives of  the deceased  party  would  have  to  be substituted and  failure to  do so would result in abatement of proceedings.  Now, if  the party  to a  suit dies and the abatement takes  place, the  suit would abate. If a party to an appeal or revision dies and either the appeal or revision abates, it  will have  no impact  on the judgment, decree or order against  which the appeal or revision is preferred. In fact,  such  judgment,  decree  or  order  under  appeal  or revision would  become final.  Such is  not  the  scheme  of abatement as  conceived by  s. 4  of the  Act. Here,  if the abatement as is conceptually understood in the Code of Civil Procedure is  imported, it  will  do  irreparable  harm.  To illustrate, if  an appeal  abates rendering either the trial court judgment  or the  judgment in  first appeal  final and binding, the  consolidation authorities  would also be bound by it  and the  party whose  appeal or revision abated would lose its  chance of  persuading the  appellate or revisional authority to accept its case which may result in interfering with or  setting aside  the judgment,  order  or  decree  in appeal. Such was not and could not be the intention of s. 4. This becomes manifestly clear from the proviso to clause (c) of  s.   4  extracted  hereinabove  which  shows  that  such abatement shall  be without  prejudice to  the rights of the person affected to agitate the rights or interest in dispute in  the   suit  or   proceeding   before   the   appropriate consolidation authorities  under and  in accordance with the provisions of  the Act.  No one  would, therefore,  stand to suffer on  account of  the  abatement  because  there  is  a special forum  carved out  for adjudication  of  the  rights which were  involved in  proceedings which  would abate as a consequence  of   the  notification   under  s.  3.  If  the construction as  canvassed for  were to  be adopted it would result in  irreparable harm and would be counter-productive. The consolidation  work would be wholly hampered and a party whose appeal  is pending would lose the chance of convincing the appellate  court which,  if successful,  would turn  the tables against the other party in whose favour the judgment, decree or  order would  become final  on  abatement  of  the appeal. Therefore, the legislature intended that not 560 only the  appeal or  revision would  abate but the judgment, order or  decree against  which the  appeal is pending would also become  honest as  they would also abate and this would leave consolidation  authority free to adjudicate the claims of title  or other  rights or  interest in  land involved in consolidation. In our opinion, therefore, the High Court was right in  not only  holding that  the second  appeal pending before it  abated but  also the  judgment and  decree of the trial court  and first  appellate court  would stand  abated along with  those proceedings.  We reach  this conclusion on the language  of ss.  3 and  4 and the scheme of the Act but the view  which we  are taking  is also  borne out  by  some decisions though  in none of them this position was directly canvassed.      In Ram  Adhar Singh v. Ramroop Singh & Ors., this Court examined the  effect of  a provision  in pari  materia in  a parallel  statute,   namely,  s.  5  of  the  Uttar  Pradesh Consolidation of Holdings Act, 1953 (’U. P. Act’ for short). Section 5  provided for the consequences of a declaration of intention to  prepare a scheme for consolidation of holdings made under s. 4. As the section stood prior to its amendment in 1966,  it did  not provide  for abatement  of proceedings pending in civil courts at the commencement of consolidation proceedings. By  the Amending  Act 21  of  1966,  s.  5  was amended introducing  sub-s. (2)(a)  to provide for abatement

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of pending proceedings. This section is in pari materia with s.  4  (c)  of  Act.  At  the  time  of  the  issue  of  the notification an  appeal by special leave was pending in this Court and  a notice  of motion  was taken out requesting the Court to  pass an order abating the appeal after taking note of sub-s.  (2)(a) introduced  by the  Amending Act  of 1966. After   negativing    the   contention    challenging    the constitutional validity of the Amending Act, this Court held that the  suit out  of which  the appeal  came to  the Court would stand  abated in  view of sub-s. (2) (a) introduced in s. 5. The emphasis is that not only would the appeal pending in this  Court abate but the suit as a whole abated. True it is that  no contention  was taken  whether only  the  appeal would abate  keeping the judgment under appeal intact or the suit as  a whole  would abate,  but the  observation of this Court will  clearly indicate  that in  the opinion  of  this Court the  suit as  such would  abate rendering  the  appeal pending before  this Court infructuous. This decision in Ram Adhar Singh’s case supra was 561 in terms  followed in  Chattar Singh & Ors. v. Thakur Prasad Singh. The  appeal in Chattar Singh’s case related to a suit which had  a reference  to a claim to the land in respect of which a  notification was  issued  under  the  U.P.  Act  as amended by  Act 21 of 1966. The notification was issued when the appeal  was pending  before this  Court. The  appellants moved for  passing  an  order  of  abatement.  Granting  the motion, this  Court held that the suit and the appeals stood abated, leaving  it open  to the  parties to  work  out  the rights before  the appropriate  authorities under  the U. P. Act. Both  the  aforementioned  decisions  were  noticed  in Satyanarayan Prasad  Sah and  others v.  State of  Bihar and another. In that case upon the issue of a notification under s. 3 of the Act at a time when the matter was pending in the High Court  an order  was made  under s.  4 (c)  abating the proceeding as also the suit from which the proceeding arose. Writ Petitions  were filed in this Court under Article 32 of the Constitution  questioning the constitutional validity of s. 4 of the Act as being violative of Arts. 14 and 19 of the Constitution. After  repelling the challenge to the vires of s. 4  this Court  affirming the decisions in Ram Adhar SIngh and Chattar  Singh’s case  (supra) held  that maybe 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 this  Court understood  to mean that the civil proceeding  comes to  a naught.  In other  words,  the proceedings from  its commencement  abate and no decision in the proceeding  at any  stage would  have any  impact on the adjudication of claims by the parties under the Act.      Accordingly, both  on principle  and  precedent  it  is crystal clear  that where  a notification is issued bringing the land involved in a dispute in the civil proceeding under a scheme  of consolidation  the proceedings  pending in  the civil court  either in  the trial court, appeal or revision, shall abate  as a  consequence ensuing  upon the  issue of a notification and  the effect  of abatement would be that the civil  proceeding  as  a  whole  would  come  to  a  naught. Therefore, the  order of  the High  Court impugned  in  this appeal is  legal and  valid so  far as  it not only directed abatement of  the appeal  pending before  the High Court but also abating  the judgments  and decrees  of the trial court and the  first appellate  court  because  the  entire  civil proceeding came to naught. 562      The next  contention of  Shri Singh  was that  the High

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Court ought  not to have nullified the decree with regard to khata no.  458  in  which  Brahmadeo  and  Deonandan  Singh, defendants 7  and 5  respectively, alone were interested and the present  respondents had  no interest  in khata no. 458. Learned counsel  who appeared  for the  respondents conceded that the  present respondents  have no interest in khata no. 458. It  also transpires  that Brahmadeo claimed interest in khata no.  458 alleging  that  he  had  purchased  the  land involved in the khata from Deonandan Singh, defendant 5. The suit proceeded  ex-parte against  defendants  5  and  6  and Brahmadeo, defendant  7 contested  the suit  in  respect  of khata no.  458. The  trial court negatived the contention of defendant  7   Brahmadeo  and  accepted  plaintiff’s  title. Defendant 7  Brahmadeo along with other defendants preferred an appeal to the District Court. When the appeal was pending in the  District Court,  Brahmadeo, the  appellant died. His legal representatives  were not substituted. Since defendant 7 Brahmadeo  as appellant  claimed  separate,  specific  and exclusive right  to khata  no. 458,  on his  death his legal representatives ought  to have  been substituted. He was the appellant. No  one was substituted on his behalf. Obviously, therefore, the  appeal preferred by Brahmadeo abated. It may also be  made clear  that legal representatives of Brahmadeo have  not   preferred  second   appeal.  Second  Appeal  was preferred by the present respondents who claimed interest in khata no.  459 only.  Accordingly, when the appeal preferred by the  present respondents  abated,  it  only  abated  with reference to  khata no. 459 and in no case it would have any impact on  the title  of  present  appellants  which  became established under  a decree  of the trial court which became final on  the appeal  of Brahmadeo  having abated before the notification under  s. 3,  and it  could not at all be dealt with by the High Court. To that extent this appeal will have to be  allowed and an appropriate modification would have to be made.      Accordingly, this  appeal succeeds in part. Proceedings with regard to khata no. 459 (Bhouli) in Touzi 7535, village Parsain were  rightly abated by the High Court and the civil proceeding with  regard to  khata no.  459 as  a whole would abate leaving  the parties  to get  their rights adjudicated before the  authorities under  the Act.  The  title  of  the appellants declared  by the  trial court in respect of khata no. 458  (nakdi) has  become unchallengeable at the hands of Brahmadeo or anyone claiming through him and the 563 abatement of  the second  appeal will  have no impact on the title of  the appellants  to khata  no. 458. The declaration made by  the trial  court in  respect of  khata no.  458  is restored. In  the circumstances of the case there will be no order as to costs. P.B.R.                              Appeals allowed in part. 564