IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.117 of 2006 SHRI NARAYAN PRASAD SINGH & ORS Versus MUNDRIKA PRASAD THAKUR & ANR ----------- 05- 6.5.2008 Heard Mr. Ashok Kumar Sinha for the petitioners, and Mr. Keshav Srivastava for the opposite parties. The petitioners of Civil Revision No.2272 of 2005, have filed this application for review of the order dated 17.5.2006, whereby the civil revision was dismissed. 2. The plaintiffs, who are the opposite parties herein, have instituted Title Suit No.211 of 1991, seeking declaration of the following reliefs as occurring in paragraph-21 of the plaint :- “(a) On the consideration of the facts stated above it be declared that the sale deed executed by Buni Devi in favour of defendant no.1 is fraudulent without consideration and it does not affect the title and possession of the plaintiff. (b) That it be further declared that the plaintiffs are entitled to hold possession over the disputed land. © That the cost of the suit be given to be plaintiff. (d) That any other relief or reliefs to which the plaintiff be found entitled be also given to the plaintiff.” 3. This was followed by an application by the defendants (the petitioners herein) before the learned trial court under Section 4(b) and 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, praying therein that the suit had abated. This application was rejected by order dated 20.10.2005, and it was held that the suit had in the facts and circumstances of the case not abated. This order was impugned in the said Civil Revision No.2272 of 2005. The same was rejected by the said order dt. 17.5.2006. Paragraph 2 3 of the order disposing of the civil revision application is reproduced hereinbelow for the facility of quick reference :- “3. I have perused the materials on record and considered the submissions of learned counsel for the petitioners. The issue raised by defendant no.1 (the petitioner herein), whether or not the suit has abated, has been finally decided by the impugned order in so far as the learned trial court is concerned. Therefore, I am of the view that it will be open to the aggrieved party to challenge the validity of this order in title appeal that might possibly be filed at the instance of the aggrieved party. This is a suit of 1991. The trial court should guard itself against any attempt of the parties to delay the disposal of the suit.” 4. Learned counsel for the petitioners submits that the order has acted to the prejudice of the defendants (the petitioners herein), inasmuch as the issue relating to abatement has been permitted to be raised in the appeal, if it ultimately preferred against the judgment and decree disposing of the suit. He further submits that the appellate court will construe the aforesaid order of this court as saying that the issue relating to abatement stands finally concluded in view of the order of this Court and, therefore, the trial court will feel hesitant in dealing with the issue on merits. He further submits that in view of the nature of the order of this Court, the trial court cannot dispose of the remaining issues on merits and may force the defendants to raise the same in appeal. 5. Learned counsel for the plaintiffs (opposite parties herein) submits that the order does not warrant any review or modification, and the apprehensions raised by learned counsel for the defendants are unfounded. 6. We have perused the materials on record and 3 considered the submissions of learned counsel for the parties. The learned trial court by its order dt. 20.10.2005, and impugned in the civil revision, rejected the application of the defendants, and held that the suit has not abated. In other words, the suit continues and will have to be disposed on merits. This Court, therefore, observed that the issue relating to abatement in so far as the trial court is concerned, has been finally decided and can, therefore, be raised at the appellate stage. Once the trial court held that the suit has not abated, he is bound in law to dispose of all issues of facts and law raised in the suit. Learned counsel for the plaintiffs (the opposite parties herein) is, therefore, right in his submission that the apprehensions raised by the defendants (the petitioners herein) are wholly unfounded. The present review application is indeed a dilatory tactics and is a frivolous application. 7. In the result, this civil review application is dismissed. The trial court is directed to dispose of the suit expeditiously, being a suit of 1991. mrl. (S K Katriar)