Bibi Rahmani Khatoon & Ors Vs.
Harkoo Gope & Ors  INSC 97 (22 April 1981)
ISLAM, BAHARUL (J)
CITATION: 1981 AIR 1450 1981 SCR (3) 553 1981
SCC (3) 172 1981 SCALE (1)739
Bihar Consolidation of Holdings and
Prevention of Fragmentation Act, 1956-Section 4(1)(c)-Scope of-Section provides
that, without prejudice to rights of parties all pending proceedings at any
stage before any court in respect of lands taken up for consolidation shall
abate-Plaintiffs' suit for declaration of title decreed-Notification issued
when appeal pending before High Court-Effect of notification-Whether judgment
and decree of trial court would abate.
Section 4(1)(c) of the Bihar Consolidation of
Holdings and Prevention of Fragmentation Act, 1956 provides that upon the issue
of a notification under section 3(1) of the Act every proceeding pending before
any court or authority, whether of the first instance or of appeal shall, on an
order being passed in that behalf by the Court or authority before whom such
suit or proceeding is pending, stand abated. The proviso to the section enacts
that such abatement shall be without prejudice to the rights of persons
affected to agitate the right in dispute before the appropriate consolidation
authorities in accordance with the provisions of the Act. The State Government
issued a notification under section 3(1) of the Act.
The plaintiffs' (appellants herein) suit for
a declaration of their title and for recovery of possession of agricultural
lands bearing khata Nos. 458 and 459 against defendants (respondents herein and
three other defendants) was decreed by the trial court. Defendant No. 7 claimed
interest in Khata No. 458 only while the other defendants 1 to 4 claimed
interest in Khata No. 459. On appeal the Additional District Judge affirmed the
decree of the trial court. Defendant No. 7 died when the first appeal was
pending before the District Judge. Neither his legal representatives nor any
one claiming under him were substituted nor was an appeal preferred by any of
them to the High Court.
Before the High Court the defendants 1 to 4
submitted that the work of consolidation of holdings in respect of the lands in
dispute having been taken up by the concerned authorities consequent on the
issue of a notification under section 3 of the Act the appeal would abate by
virtue of the provisions of section 4 of the Act. Accepting the contention the
High Court held that the appeal abated and set aside the judgment and decree of
the courts below in respect of both Khatas 458 and 459.
In appeal to this Court it was contended on
behalf of the appellants-plaintiffs that (1) even if the second appeal abated
in respect of Khata No. 459 the High Court could not set aside the judgment and
decree of the trial court as well as of the first appellate court both of which
became final and (2) in any event, on the 554 death of defendant No. 7 during
the pendency of the first appeal, his legal representatives having not been
substituted, his appeal abated and none of the present respondents had any
interest in the property. Therefore, the High Court was in error in setting
aside the decree of the trial court in so far as that property was concerned.
Dismissing the appeal in part, ^ The effect
of a notification issued under Section 3 of the Act bringing a land in dispute
in a civil proceeding under a scheme of consolidation is that the proceedings
pending in the civil court either at the stage of trial, appeal or revision
would come to naught. The High Court was right in holding that the second
appeal abated in respect of Khata No. 459 and that the judgment and decree of
the trial court and the first appellate court stood abated along with those
proceedings. [562 G-H] When a scheme of consolidation is undertaken, the Act provides
for adjudicating of claims by the authorities under the Act. In order to permit
them to pursue adjudication of rival claims unhampered by any proceedings in
civil courts a wholesome provision is made that pending proceedings involving
claims to land at whatever stage they might be, should abate. To avoid conflict
between rival jurisdictions the Act provides that such proceedings should be
examined exclusively by the authorities under the Act. Provision has been made
for abatement of pending proceedings as well. [558 F-G] The concept of
abatement known to civil law is that if a party to a proceeding dies either in
the course of trial or appeal or revision and the right to sue survives, the
heirs and legal representatives of the deceased party would have to be
substituted, failure to do which would result in abatement of the proceedings.
If a party to an appeal or revision dies and if the appeal or revision abates
it will have no impact on the judgment, decree or order against which the
appeal or revision is preferrers. Such judgment, decree or order under appeal
or revision would become final.
[559 B-D] But the abatement contemplated by
section 4 of the Act is of a different kind. If the concept of abatement as
understood in the Code of Civil Procedure is imported into this case, it would
do irreparable harm to the parties. For example, if an appeal abates rendering
either the judgment of the trial court or the judgment in the first appeal
final and binding the consolidation authorities would also be bound by it and
the party whose appeal or revision abated would lose the chance of persuading
the appellate or revisional authority to accept its case which may result in
interfering with or setting aside the judgment etc. in appeal. That this could
not be the intention of section 4 is manifest from the proviso to clause (c) of
section 4. By virtue of the proviso no one would stand to suffer on account of
abatement because a special forum is carved out for adjudication of the rights
of parties. [559 E-G] Ram Adhar Singh v. Ramroop Singh and ors  2 S.C.R.
95, Chattar Singh and Ors. v. Thakur Prasad Singh, A.I.R. 1975 SC 1499, and
Satyanarayan Prasad and ors. v. State of Bihar and Anr., A.I.R. 1980 SC 2051;
555 The High Court was in error in holding
that the judgment and decree in respect of Khata No. 458 also abated.
Defendant No. 7 claimed separate, specific
and exclusive right in respect of that Khata. On his death his legal
representatives having not been substituted, his appeal abated. His legal
representatives did not prefer an appeal to the High Court. The appellants'
title in respect of Khata 458 therefore became established under the decree of
the trial court. The abatement of the second appeal will have no impact on the
appellants to Khata No. 458. [562 C-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1359 of 1981.
Appeal by special leave from the judgment and
order dated the 18th August, 1979 of the Patna High Court in Second Appeal No.
697 of 1974.
B.P. Singh for the Appellants.
S.K. Mehta for the Respondents.
The Judgment of the Court was delivered by
DESAI, J. 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.
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 the decree of the trial
Present respondents alone preferred Second
Appeal No. 697/74 in the High Court of Judicature at Patna. It must be
specifically 556 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 as
"The appeal 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.
Shri B.P. Singh, learned counsel who appeared
for the appellants contended that even if the Second Appeal abates by virtue of
the provision contained in s. 4, on issue of a notification under s. 3 of the
Act, the High Court cannot set aside the judgments and decrees of the trial
court and the first appellate court as according to him when an appeal abates
the judgment and decree of the court against which the appeal is preferred
becomes final. The second contention of the learned counsel is that in any view
of the matter as the present respondents had no interest in khata no. 458 and
as Brahmadeo on sale to him by Deonandan Singh alone claimed interest in khata
no. 458 and since the death of Brahmadeo when the 557 first appeal was pending
and his heirs and legal representatives having not been substituted, the appeal
qua him in respect of khata no. 458 had abated and the present respondents
could not have preferred appeal in respect of khata no. 458 and, therefore, the
High Court could not have set aside the decree in respect of khata no. 458.
Section 3 of the Act confers power on the
State Government to make a declaration of its intention to frame a scheme for
consolidation of holdings. When the State Government entertains an intention to
make a scheme for consolidation of holdings in a given village, it has to issue
a notification declaring its intention to make a scheme for the consolidation
of holdings in the specified area. Section 4 provides that upon the publication
of a notification under sub-s. (1) of s. 3, the consequences enumerated in s. 4
shall ensue. One such consequence is as set out in sub-clause (c) which reads
as under:- "4. Effect of notification under section 3(1) of the Act- Upon
the publication of the notification under subsection (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 operations ensue in the area to which the
notification relates, namely:- (c) every proceeding for the correction of
records and every suit and proceedings in respect of declaration of rights of
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".
There are as many as 5 provisos to clause (c)
of s. 4 but only one is material which reads as under:
558 "Provided further that such
abatement shall be without prejudice to the rights of the persons affected to
agitate the right or interest in dispute in the said suits or proceedings
before the appropriate consolidation authorities under and in accordance with
the provisions of this Act and the rules made there under".
Present appeal arises out of a suit filed by
the present appellants, who were plaintiffs, for a declaration of their title
and consequential relief of possession meaning that it was a suit concerning
agricultural land to which title was claimed and disputed. This suit was
pending in Second Appeal at the instance of the respondents when the
notification under s. 3 (1) came to be issued. Accordingly, s. 4 (c) would be
attracted and the necessary consequence statutorily prescribed, must ensue.
Therefore, it is incontrovertible that the second appeal would abate. Shri
Singh, learned counsel for the appellants does not dispute this legal
The grievance of Shri Singh is that the High
Court while making an order declaring that the second appeal has abated, was in
error in setting aside the judgments and decrees of the trial court as well as
of the first appellate court which were in favour of the present appellants on
the ground that those proceedings have also abated. At first blush this
argument is very attractive but if accepted it has a potentiality of doing
When a scheme of consolidation is undertaken,
the Act provides for adjudication of various claims to land involved in
consolidation by the authorities set up under the Act. In order to permit the
authorities so pursue adjudication of rival claims to land unhampered by any
proceedings in civil courts, a wholesome provision was made that the pending
proceedings involving claims to land in the hierarchy of civil courts, may be
in the trial court, appeal or revision, should abate. This provision was made
with a view to ensuring unhampered adjudication of claims to land before the
authorities under the Consolidation Act without being obstructed by proceedings
in civil courts or without being hampered or impeded by decisions of the civil
courts in the course of consolidation of holdings. In order to avoid conflict
consequent upon rival jurisdictions the legislature provided that the
proceedings involving the claims to land put in consolidation should be
exclusively examined 559 by the authorities under the Consolidation Act and all
rival jurisdiction would be closed. Simultaneously it was necessary to deal
with the pending proceedings and that is why the provision for abatement of
The concept of abatement is known to civil
law. If a party to a proceeding either in the trial court or any appeal or
revision dies and the right to sue survives or a claim has to be answered, the
heirs and legal representatives of the deceased party would have to be
substituted and failure to do so would result in abatement of proceedings. Now,
if the party to a suit dies and the abatement takes place, the suit would abate.
If a party to an appeal or revision dies and either the appeal or revision
abates, it will have no impact on the judgment, decree or order against which
the appeal or revision is preferred. In fact, such judgment, decree or order
under appeal or revision would become final. Such is not the scheme of
abatement as conceived by s. 4 of the Act. Here, if the abatement as is
conceptually understood in the Code of Civil Procedure is imported, it will do
irreparable harm. To illustrate, if an appeal abates rendering either the trial
court judgment or the judgment in first appeal final and binding, the
consolidation authorities would also be bound by it and the party whose appeal
or revision abated would lose its chance of persuading the appellate or
revisional authority to accept its case which may result in interfering with or
setting aside the judgment, order or decree in appeal. Such was not and could
not be the intention of s. 4.
This becomes manifestly clear from the
proviso to clause (c) of s. 4 extracted hereinabove which shows that such
abatement shall be without prejudice to the rights of the person affected to
agitate the rights or interest in dispute in the suit or proceeding before the
appropriate consolidation authorities under and in accordance with the
provisions of the Act. No one would, therefore, stand to suffer on account of
the abatement because there is a special forum carved out for adjudication of
the rights which were involved in proceedings which would abate as a
consequence of the notification under s. 3. If the construction as canvassed
for were to be adopted it would result in irreparable harm and would be
The consolidation work would be wholly
hampered and a party whose appeal is pending would lose the chance of convincing
the appellate court which, if successful, would turn the tables against the
other party in whose favour the judgment, decree or order would become final on
abatement of the appeal. Therefore, the legislature intended that not 560 only
the appeal or revision would abate but the judgment, order or decree against
which the appeal is pending would also become honest as they would also abate
and this would leave consolidation authority free to adjudicate the claims of
title or other rights or interest in land involved in consolidation. In our
opinion, therefore, the High Court was right in not only holding that the
second appeal pending before it abated but also the judgment 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
proceedings. 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 abating 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 appeal 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 the 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 pending before this Court infructuous.
This decision in Ram Adhar Singh's case supra was 561 in terms followed in
Chattar Singh & Ors. v. Thakur Prasad Singh. The appeal in Chattar Singh's
case related to a suit which had a reference to a claim to the land in respect
of which a notification was issued under the U.P. Act as amended by Act 21 of
1966. The notification was issued when the appeal was pending before this
Court. The appellants moved for passing an order of abatement. Granting the
motion, this Court held that the suit and the appeals stood abated, leaving it
open to the parties to work out the rights before the appropriate authorities
under the U. P. Act. Both the aforementioned decisions were noticed in
Satyanarayan Prasad Sah and others v. State of Bihar and another. In that case
upon the issue of a notification under s. 3 of the Act at a time when the
matter was pending in the High Court an order was made under s. 4 (c) abating
the proceeding as also the suit from which the proceeding arose.
Writ Petitions were filed in this Court under
Article 32 of the Constitution questioning the constitutional validity of s. 4
of the Act as being violative of Arts. 14 and 19 of the Constitution. After repelling
the challenge to the vires of s. 4 this Court affirming the decisions in Ram
Adhar SIngh and Chattar Singh's case (supra) held that maybe that the High
Court should not have nullified the decree of the trial court but should have
merely declared that the proceeding stood abated which this Court understood to
mean that the civil proceeding comes to a naught. In other words, the
proceedings from its commencement abate and no decision in the proceeding at
any stage would have any impact on the adjudication of claims by the parties
under the Act.
Accordingly, both 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 of 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 decrees of the trial court and the first appellate court because
the entire civil proceeding came to naught.
562 The next contention of Shri Singh was
that the High Court ought not to have nullified the decree with regard to khata
no. 458 in which Brahmadeo and Deonandan Singh, defendants 7 and 5
respectively, alone were interested and the present respondents had no interest
in khata no. 458.
Learned counsel who appeared for the
respondents conceded that the present respondents have no interest in khata no.
458. 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 defendants 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
Defendant 7 Brahmadeo along with other
defendants preferred 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 exclusive 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 clear 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 having
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. The title of the
appellants declared by the trial court in respect of khata no. 458 (nakdi) has
become unchallengeable at the hands of Brahmadeo or anyone claiming through him
and the 563 abatement of the second appeal will have no impact on the title of
the appellants to khata no. 458. The declaration made by the trial court in
respect of khata no. 458 is restored. In the circumstances of the case there
will be no order as to costs.
P.B.R. Appeals allowed in part.