Paras Nath Rai & Ors vs State Of Bihar & Ors

3. The facts which are essential to be stated for the adjudication of the present appeal are that Partition suit No. 123 of 1963 was filed by Sesh Nath Rai, father of the appellant No. 1 and others against Kanta Rai and others. The claim in the suit for partition pertained to the house and “Sahan” standing over plot Nos. 593 and 595 under Khata No. 18. The learned Munsif by judgment and decree dated 4th April, 1968 dismissed the suit observing that the plaintiffs’ stand that one Umraoti Devi was the daughter of Ananta Rai did not appear to be correct. The learned Munsif further opined that there had been a previous partition and the suit was defective for non-joinder of parties. However, on the determined status, he carved out the shares and concluded that the plaintiffs were not entitled to any relief claimed and accordingly dismissed the suit.

4. Being dissatisfied with the aforesaid judgment and decree the appellants preferred Title Appeal Nos. 30/41 of 1968/71. It is worthy to note that the State Government had issued notification No. 1168 dated 26th November, 1970 under Section 3 of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (for short ‘the Act’) bringing the area under consolidation scheme. Before the appellate court a petition was filed under Section 4 (c) of the Act to the effect that the appeal and the suit had abated by statutory operation of law. The appellate court failed to consider the application and decided that the appeal could not be allowed to proceed as one of the respondents had died during the pendency of the appeal and the application for substitution had been rejected. However, he allowed the appeal to be withdrawn observing as follows:-

7. At this juncture, it is necessary to refer to the consolidation proceedings. The Consolidation Officer vide order dated 23rd March, 1974 arrived at the conclusion that the applicant Umraoti Devi is the daughter of Anant Rai and hence, claim of the applicant therein deserved to be rejected. Being of this view he directed entry in Khata No. 142 of recent revisional survey of village Lakhanpatti Thana No. 407 which was in the name of the Shesh Nath Rai, the respondent therein, would remain in operation. The appeals preferred from the said order did not render any success to the appellants.

11. The aforesaid common order was assailed in CWJC No. 5610/1987 and the learned single Judge by order dated 14.05.1998 expressed the view that the Deputy Director, Consolidation could not have decided the revisions while in-charge of Director and hence, the order had been passed by an authority who did not have jurisdiction and, accordingly, remanded the matter to be heard afresh and disposed of by the revisional authority.

25. In Mst. Bibi Rahmani Khatoon (supra) a title suit was filed before the learned Additional Subordinate Judge I, Gaya, for declaration of title and for recovery of possession of certain agricultural land. The trial court decreed the suit declaring that the plaintiffs were the owners of certain khatas and were entitled to recover possession of the same. On appeal being preferred the learned District Judge, Gaya, dismissed the appeal and affirmed the decree of the trial court. In Second Appeal the High Court took note of the fact that one of the defendants had died during pendency of the appeal before the District Court and his legal representatives were neither impleaded nor any one claiming under him came to be substituted in the appeal pending in the District Court. During the pendency of the Second Appeal before the High Court an affidavit was filed stating that a notification under Section 3 of the 1956 Act, had been issued and in view of the language employed in Section 4 of the said Act the suit and the appeals stood abated. The High Court accepted the submission and disposed of the appeal by stating that the proceedings stood abated and resultantly the judgments and decrees of the courts below deserved to be set aside. This Court referred to Section 4 as amended in 1973 and thereafter referred to the material part of the proviso to Clause

12. After the remand, the Director, Consolidation dismissed the three revisions by expressing the view that Umraoti Devi was the daughter of Dhyani Rai and not of Anant Rai. The said conclusion was arrived on the base of findings recorded by the civil court. The said order came to be challenged in C.W.J.C. No. 1851 of 2000. The learned single Judge by order dated 9.08.2002 concurred with view of the appellate authority and the revisional authority and, accordingly, dismissed the writ petition.

37. Consequently, the appeal is allowed, the orders passed by the learned single Judge as well as of the Division Bench are set aside and the matter is remanded to the file of the learned single Judge to decide the matter on merits on the basis of the material brought before the Consolidation Authorities. We repeat at the cost of repetition that none of the findings recorded by the civil court shall be taken aid of. There shall be no order as to costs.

October 05, 2012