IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2252 of 2005 DEVI KUMAR SINGH & ORS Versus SATISH KUMAR SINGH & ORS ----------- 7 11.7.2008 Heard counsel for the parties. By the impugned order dated 9.9.2005, the application of the defendants-petitioners dated 4.11.2004 for dismissing the suit in terms of Section 4(b) of the Bihar Consolidation of Holdings & Prevention of Fragmentation Act, 1956 (hereinafter to be referred to as ‘the Act’) has been rejected on the ground that the suit in question involves not only the land of two villages out of which one of them is admittedly beyond the scheme of the Act and that validity of the two registered deed of gift are also in question which cannot be adjudicated by the authorities under the Act. Counsel for the petitioners, however, with reference to the pleadings on record would submit that it was an admitted position that for part of the land of the suit property, a notification under Section 3 of the Act had been issued and since denotification thereof in terms of Section 26 of the Act had not been made, the court below has committed jurisdictional error in rejecting the petition for abatement of the suit filed by the defendants-petitioners. In this context, the counsel has placed reliance on a judgment of this Court in the case of Bettiah Estate Vs. Pushpa Devi 2 reported in 1986 PLJR 222. Counsel for the plaintiffs-opposite parties on the other hand has submitted that the application filed by the defendants-petitioners on 4.11.2004 was not under Section 4(c) of the Act and therefore, the ratio of the judgment in the case of Bettiah Estate (supra) would not be applicable to the facts of the present case. He has further submitted that as a matter of fact, the defendants-petitioners had only questioned the maintainability of the suit and the issue of abatement was neither raised nor has been decided by the court below by the impugned order. In this context, counsel for the petitioner has drawn attention of this Court to the plaint of the suit being annexed as Annexure-1 to this application from which it was sought to be canvassed that in the partition suit filed by the plaintiff, an area of 35.66 acres was involved relating to two villages out of which 53 plots measuring 27.24 acres area of village Sonhan and only four plots measuring 8.42 acres area of village Manikpur and as such, when the petitioners had questioned the maintainability of the suit only on the ground of its being not maintainable as the village Manikpur only and not village Sonhan was subject matter of consolidation proceedings in terms of Section 3 of the Act. The suit could not have been held to be not maintainable specially when the validity of the deed of gift were also the subject matter of such partition 3 suit in view of the issues framed by the court below after filing of the written statement by the defendants-petitioners. In the opinion of this Court, the first and foremost issue is as to whether the suit as a whole involving 53 plots of mauza Sonhan measuring 27.24 acres could have been held to be not maintainable when it is an admitted case of the defendants-petitioners themselves that consolidation proceedings were undertaken in the village Manikpur and not in the village Sonhan. The relevant portion of the petition filed by the defendant on 4.11.2004 is quoted hereinbelow:- ^^vkosnu vUrxZr /kkjk 4 ¼ch ½ pdcanh vf/kfu;e feutkuhe eqnkyge fuEufyf[kr gS%& ¼1½ ;g fd izLrqr okn eqnbZ;ku }kjk okn i= esa of.kZr ,jkft;kr ds cWVokjk ds fy, f[kykQ eqnkyge nkf[kr fd;k x;k gSA ¼2½ ;g fd vjkth rdjkjh ds fu’ir ekStk ekfudiqj dk pd dV x;k gS oks pdcanh [kfr;ku Hkh U;k;ky; esa nkf[kr fd;k x;k gS tcfd eqnbZ;ku us ekfudiqj dk Hkh gky losZ [kfr;ku U;k;ky; esa tek fd;k gSA ¼3½ ;g fd vjkth rdjkjh ls lacaf/kr ekStk dk dinotification /kkjk ^^d** pdcanh vf/kfu;e ds rgr vHkh rd ugha gqvk gS vr,o mDr ,jkth ds fu’ir cWVokjk dk eksdnek ns[kus dk vf/kdkj Jheku dks izkIr ugha gSA ¼4½ ;g fd cektho /kkjk 4¼oh½ pdoanh vf/kfu;e eqnbZ;ku dks dksbZ fof/kd vf/kdkj izLrqr eksdnek nkf[ky djus dks ugha gSA vr% Jheku ls fuosnu gS fd mDr eksdnek cektho /kkjk 4 ¼oh½ pdoanh vf/kfu;e [kkfjt fd;k tk; fd U;k; gksaA** Thus, on plain reading of the aforementioned application, it becomes clear that there was no prayer for abatement of the suit as a whole rather the petitioners had 4 questioned the maintainability of the suit under Section 4(b) of the Act pertaining to the land of village Manikpur only. It would also be clear that the same was not an application under Section 4(c) of the Act rather the provision of Section 4(b) of the Act was sought to be pressed for holding that the suit was not maintainable. In that view of the matter, the court below has rightly proceeded to examine as to whether the entire suit was not maintainable in terms of Section 4(b) of the Act and its conclusion that the suit involving the genuineness and validity of two deeds of gift was maintainable specially when major portion of the suit property was of village Sonhan and thus not covered by Section 3 notification. cannot be held to be bad, even in terms of Section 4(b) of the Act, which reads as follows:- “4(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: Provided that nothing in this clause shall apply to any proceeding under section 48(E) of the Tenancy Act 1885 (Act 8, 1885) and to the proceedings relating to recording the titles of Bataidars;” In the opinion of this Court, Section 4(b) and Section 4(c) of the Act are two different and distinct provisions and 5 whereas Section 4 (b) of the Act talks only of maintainability of a suit pertaining to the land covered by the scheme of the Act and Section 4(c) talks of abatement of such suit and abatement in fact can only be ordered after the defendants would appear and file a written statement and would lead evidence that the land in question being the subject matter of the suit was fully covered by the Consolidation Scheme through issuance of a notification under Section 3 of the Act. Such is not the case of the defendants-petitioners in his application dated 4.11.2004 and in fact, the petitioner had never prayed for abatement of the suit. In that view of the matter, this Court would find no applicability of the ratio of the judgment of this Court in the case of Bettiah Estate (supra). A question would, therefore arise as to whether after the parties have not only completed their pleadings but also had led their evidence, can the issue of maintainability of the suit be raised after the closure of the hearing of the suit? Order 14 rule 2 of the Code of Civil Procedure only provides determination of a preliminary issue on a pure question of law at the inception and not after the conclusion of hearing. The petitioners, therefore, having taken chance and led their evidence on all the issues framed by the court below could not have been allowed to raise issue of maintainability of the suit at the stage of argument. 6 The suit, in fact, would not have been otherwise held to have abated in view of an admitted position that it also involved adjudication on the issue of validity of two deeds of gift and part of the suit land was not covered by the notification under Section 3 of the Act. This Court, however, would not like to make a final pronouncement on the issue of abatement as the court below has only considered the application of the petitioner under Section 4(b) of the Act relating to maintainability of the suit and that issue is left open. With the aforementioned observations, this application, being devoid of any merit, is hereby dismissed. Rsh (Mihir Kumar Jha, J.)