Case: Bibi Rahmani Khatoon &amp; Ors Vs. Harkoo Gope &amp; Ors

1. 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.2. 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 t he decree of the trial court.3. Present respondents alone preferred Second Appeal No. 697/74 in the High Court of Judicature at Patna. It must be specifically 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 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 asappeal 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.

Reasoning:
In our opinion, therefore, the High Court was right in not only holding that the second appeal pending before it abated but also the judgm ent 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 of pending pro ceedings. 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 ab ating 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 appe al 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 t he 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 p ending before this Courtboth 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 o f 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 de crees of the trial court and the first appellate court because the entire civil proceeding came to naught.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 defend ants 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 plaintiffs title. Defendant 7 Brahmadeo along with other defendants p referred 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 exc lusive 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 c lear 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 hav ing 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.