Bindeshwari Rai v. Jagar Nath Ojha & Ors.

Patna High Court C.R. No.2196 of 2009 (12) dt.04-07-2013 2 Bihar Consolidation of Holdings Act. A suit was pending in between the parties filed on behalf of plaintiffs petitioners. During the pendency of the suit, a petition filed on behalf of defendants opposite parties that scheme for Consolidation of Holdings in the area in which suit land was existing was declared. Such notification was under section 3 of the Bihar Consolidation of Holdings Act, so the suit pending in between the parties was to be abated after application of section 4(b) and (c) of the Bihar Consolidation of Holdings Act. After hearing the parties, the trial court abated the suit under section 4(b) and (c) of the Bihar Consolidation of Holdings Act, legality of the same is challenged by filing this revision on the ground that there was no notification under section 3(2) of the Act which was mandatory one and the title suit basing title of the parties could not be abated. Learned counsel for the petitioner has placed reliance upon the judgment reported in 1989 PLJR 1203 which is replied by learned counsel for the opposite parties that bare perusal of section 4 (b) and (c) of Consolidation of Holdings Act, suit pending between the parties was liable to be abated and rightly has been abated. Section 4 of the Bihar Consolidation of Holdings Act runs Patna High Court C.R. No.2196 of 2009 (12) dt.04-07-2013 3 as follows:- “4. Effect of Notification under section 3(1) of the Act- Upon the publication of the notification under sub-section (1) of section 3 in the official gazette the consequences, as hereinafter set forth, shall subject to the provisions of this Act, from the date specified in the notification till the close of the consolidation operation, ensue in the area to which the notification relates, namely – (a) the district or part thereof, as the case may be, shall be deemed to be under consolidation operations and duty of preparing and maintaining the record of rights and the village map of each village shall be performed by the Director of Consolidation, shall prepare or maintain them, as the case may be, in the manner prescribed; (b) no suit or other legal proceeding in respect of any land in such areas shall be entertained in any court, and limitation in calculating period of 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; (c) every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated: Provided that if the State Government empowers any other officer appointed under this Act to dispose of any proceeding relating to survey settlement operations under the provisions of chapter X of the Bihar Tenancy Act, 1885 (Bihar Act VIII of 1885), or chapter 12 of the Chotanagpur Tenancy Act, 1908 (Bengal Act 6, 1908) or Santhal Parganas Settlement Manual. 1872 (Manual 3, 1872) and transfer such Patna High Court C.R. No.2196 of 2009 (12) dt.04-07-2013 4 proceeding to such officer for disposal, then the proceeding shall not or shall not be considered to have been abated: Provided also that no such order shall be passed without giving to the parties notice by post or in any other manner that may be convenient and after giving them an opportunity of being heard: Provided further that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in the said suits or proceeding before the appropriate consolidation authorities under and in accordance with the provision of this Act and the rules made thereunder: Provided that the State Government may, by notification in the Official gazette exempt any such proceeding, suit, appeal, reference or revision or any class of them, if in its opinion their abatement is not in public interest, and is not necessary for the purposes of this Act: Provided further that nothing in this section shall apply to any proceedings under ‘(sections 144 to 148 of Chapter X of the Code of Criminal Procedure, 1973 (Act 2 of 1974) the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 (Bihar Act 28 of 1973), section 48E of the Bihar Tenancy Act 1885 (Act VIII of 1885) and the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Act XII of 1962).” Thus, is clear enough that after publication of section 3(1) of the Bihar Consolidation of Holdings Act, suit is to be abated. To reply the decision of Full Bench reported in 1989 PLJR 1203 reliance is placed upon 1997(2) PLJR 63 Supreme Court. Paragraph 70 of Full Bench decision of this Court is on the point that what is nature of suit which cannot be abated, according to learned counsel, matter directly involving title does not abate. Patna High Court C.R. No.2196 of 2009 (12) dt.04-07-2013 5 Paragraph 70 of the judgment runs as follows: “What may be derived from the discussions above can be summarized thus – (1) Not all questions of title in respect of the land can be decided by the consolidation authorities. Exceptions to their jurisdiction are issues which require adjudication independent of any right or interest in the land, although as a result of adjudication of such independent issue, the right or interest in the land may stand nullified or varied. (2) ‘Consolidation Authorities’ are deemed courts of limited jurisdiction confined to the matters relating to the land; (3) Some types of suits may be entertained by the court notwithstanding the bar under section 4(b) of the Act even during the pendency of the consolidation proceedings; and etc. (4) pending suits with respect to cancellation of issues documents independent of the right and interest in the land which are not incidental to the claims of right and interest in the land, may not abate.” including raising Thus, pending suits with respect to consolidation of documents etc. including suits raising issues independent of right and interest in the land which are not incidental to the claim of right and interest in the land may not abate but in the present case title is claimed basing right over the land as purchased by a sale deed, admittedly is incidental to the claim of right and interest in the land, automatically will abate as decided by the trial court, that has been made more specific by their Lordships in 1997(2) PLJR 63 that claim is made to ignore void as it requires no declaration is within the competence of Consolidation Act whereas the deed is if Patna High Court C.R. No.2196 of 2009 (12) dt.04-07-2013 6 voidable may not be adjudicated by the Consolidation Court, in that case only suit does not abate. Thus, I find no mistake committed in abating the suit in T.S. No. 158/1997 by the court below. The revision application is dismissed. It is made clear that there is no further need to decide the limitation petition separately as on merit this revision application has been dismissed. A.I./N.A.F.R. (Mandhata Singh, J)