IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1892 of 2008 SANJOO KUMAR SINGH @ ANJANI KUMAR SINGH Versus SHARWAN KUMAR SINGH & ORS ----------- 2 19/11/2008 Heard counsel for the petitioner. This is second attempt on the part of the petitioner to avoid the order of abatement in a suit. It is out and out a suit for declaration of title and partition, in as much as, the relief prayed therein reads as follows:- 1.That it may be declared that the properties mentioned in Schedule „A‟ G(c ) i.e, immovable and movable are exclusive properties of the plaintiff. 2.That the properties mentioned in Schedule „B‟ be partitioned by metes and bounds by appointment of a survey knowing commissioner and the share of the plaintiff ½ be partition and separate Takhta be allotted. 3.That the costs of the suit be awarded to the plaintiff. 4.That any other relief or reliefs which the plaintiff is entitle be awarded to the plaintiff. The court below has gone into those aspect and having found that it was in view of the observation made by this Court in C.R. No. 1037 of 2004 that such issue of abatement had to be taken up. It has to be noted that a review 2 application filed by the petitioner for avoiding such abatement before this Court, though pressed, but was ultimately withdrawn by the order dated 5.8.2005 in Civil Review No. 156 of 2004. The court below has recorded that there is no dispute that the land in question for which declaration of title and/or partition has been sought is agricultural land (apart from some of the houses). The Court, therefore, having taken note of that the notification under section 3 of the Act is still operative and the Consolidation scheme has not even been denotified, has passed an order for partial abatement of the suit sofar it relates to agricultural land. Mr. Dhrub Narayan, learned Senior Counsel appearing on behalf of the petitioner, however, would submit that the court below has committed jurisdictional error in passing the impugned order, in as much as, it was not a plain and simple partition suit or the suit seeking declaration of title, rather the issue of marriage and inheritance through Lal 3 Bahadur Singh was also involved. He would further rely on certain statements made in the written statement which has surfaced from framing of issues, one of them being “whether Lal Bahadur Singh died in the estate of jointness with the plaintiff and the properties of Schedule A and E of the plaint devolved upon the plaintiff by rule of survivorship”. It has thus been submitted by Mr. Narayan that such suit would not abate. In this context he has placed reliance on the judgment of Division Bench in the case of ‘Dharmnath Pandey Vs. Dhunmun Manjhi’, reported in 1985 PLJR 345. Having given my anxious consideration, I am not in a position to accept the submission of Mr. Narayan on the simple proposition that even if those two reliefs in the light of the defence raised by the defendant are taken into consideration, the suit will still be primarily for declaration of title and/or partition. Claiming interest through a person whether he was entitled or not of a share in the partition suit at this moment would not be relevant. In that context 4 reliance placed in the case of Dharmnath Pandey (Supra) also appears to be misconceived. In that case as a matter of fact the plaintiff had sought declaration of title and recovery of possession of the suit land on the basis of a sale deed and the said sale deed was claimed by the defendant in their written statement to be void. It was only in that situation pertaining to an issue of document being voidable at the instance of the defendants was required to be gone into by the Civil Court. Basically, the suit therefore in the Dharamanath Pandey case supra was with regard to correctness or otherwise of the sale deed. Such is not the case in hand. In this case infact no such question of a document being voidable is required to be gone into. That being so, ratio of the aforementioned Division Bench judgment in Dharmanath Pandey (supra) will not be applicable to the facts of this case. If the scope of section 4(1)(b) and 4(1)(c) of the Consolidation Act is examined, it would be found that there is a statutory 5 mandate for abatement of the suit and thus there would be little scope for any Court to take a stand that the suit of declaration right and title or a suit for partition would not abate. That being so, this Court does not find any merit in his application. Accordingly, this application is dismissed. ( Mihir Kumar Jha, J. ) Abhay Kumar