Patna High Court
Banshi Bhagat vs Kishun Bhagat And Ors. on 18 August, 1980
Equivalent citations: AIR1981PAT304, 1981(29)BLJR312, AIR 1981 PATNA 304, 1981 BLJR 312, (1981) PAT LJR 539, (1981) BLJ 249
JUDGMENT Medini Prasad Singh, J.
1. This second appeal has been filed by the defendant from a reversing decision dated 31st March, 1976, of the Subordinate Judge, Auranga-bad. The suit was for a declaration of title and recovery of possession over the khatiani land bearing plot No. 1127 of khata No. 87 measuring 35 decimals of land of village Obra, police station Obra, in the district of Aurangabad. It was further prayed that the rooms and verandah which had been constructed by the defendant during the pendency of the suit be demolished and the plaintiffs be given its vacant possession. The lower appellate court accepted the case of the plaintiffs and held that the plaintiffs had title to the case land and that the defendant dispossessed him from the suit land by the construction of a house during the pendency of this suit. It accordingly, decreed the suit and directed the defendant to demolish the house within three months of its order.
2. In this case it is not disputed that a notification under Section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (briefly the Act) was published in the official gazette when the title appeal arising out of the present suit was pending in the lower appellate court with respect to Obra Anchal in which the disputed land lay. The defendant-appellant has mentioned about this notification in an affidavit filed in this Court and this fact has not been controverted in the counter-affidavit of the plaintiff-respondents.
3. The substantial question of law which was formulated by this Court under Section 100 (4) of the Code of Civil Procedure is:
"Whether in view of the notification under Section 3 of the Act the suit, the appeal in lower appellate court and this second appeal all stand abated."
In my opinion, the clear answer to this question must be 'yes.' The relevant Section 4 (c) of the Act provides that "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 and 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*****"
From a perusal of the above it is clear that every suit in respect of a declaration of right or interests in any land lying in the area or for declaration and adjudication of any other right in regard to which proceedings can or ought to be taken under this Act shall stand abated. In the instant case admittedly the plaintiffs brought a suit for declaration of title to the land and also prayed for confirmation or in the alternative for recovery of possession. Clearly, therefore, the suit falls within the purview of Section 4 (c) of the Act. So the suit and the appeal stand abated.
4. Mr. Kailash Roy appearing for the plaintiff-respondents, however, argued that on the own case of the defendant he had a house standing on the disputed land for a long time. It has been pointed out by him that in the amendment petition for amendment of the plaint the plaintiffs said that during the pendency of the suit the defendant constructed two brick built rooms which were about 18 cubits long north to south and 6 cubits wide with verandah facing west attached thereto and thatched them with straw and further the defendant had also made another. brick built verandah about 12-14 cubits being north to south and 6 cubits wide at a short distance north of the aforesaid rooms and rested it on pillars and brick walls. On the basis of this fact it was argued by Mr. Kailash Roy that the defendant had changed the status quo of the land and when the character of the land was so changed it could not be governed by Section 4 (c) of the Act. Counsel further urged that the consolidation officer under the Act had no power to order demolition of the house and, therefore, it should be held that the suit has not abated. In my opinion, the contention is unsound. In Bijli Thakur v. Rameshwar Thakur (1977 BBCJ 701) it was contended that Section 4 (c) applies only to a suit which is in respect of declaration of rights or interests in the land and that it does not cover a suit for recovery ol possession or mesne profits. This contention was repelled and at p. 703 in para 4 it was held:
"The provisions of Clause (c) have been expressed in very wide terms and it is quite apparent that the relief of possession and mesne profits which had been sought in the suit could only be granted on the basis of a declaration of plaintiff's right or interest in the land in suit. In short in every suit for recovery of possession of land and mesne profits, as in this suit, a declaration of the right or interest on the basis of which the prayer is made has necessarily to be made and without such a declaration no relief with regard to possession or mesne profits can be granted. The suit in question is, therefore, clearly one covered by the provisions of Clause (c)."
In the Full Bench case of Ram Krit Singh v. State of Bihar (1979 BBCJ 259 at p. 268): (AIR 1979 Pat 250 at p. 255) it was observed:
".....if a party succeeds in establishing its title, after the close of the consolidation proceedings, it would be open to it not only to have its title declared accordingly, but also to have a decree for mesne profits."
It is to be noticed that the important matter to be remembered is that abatement of the suit continues, only till the close of the consolidation operation and not for all times to come. In the Full Bench case of Ram Krit Singh (supra) it was held at p. 267 in oara 14 (of BBCJ): (at D- 255 in para 14 of AIR):
"It is obvious, therefore, that on the close of consolidation operation in a village or area the abated suits would revive. But the revival of those suits would not create any problems as suits will have to be decided in conformity with the decision arrived at in the consolidation proceedings in so far as the rights or interest in any land covered by the consolidation proceedings is concerned."
From the above observation it is clear that the abated suit does revive after the close of the consolidation operation and it will be decided in conformity with the decision of the consolidation officer. It is further clear that the plaintiff can get a declaration not only of title but also can get a decree for mesne profits. In the instant case the dispute really was for land and not for house. The construction of the house according to the own case of the plaintiffs was made during the pendency of the suit and it was merely a mode of dispossessing the plaintiffs from the land. The demolition of the house, I think, can only be called an ancillary relief. I am, therefore, of the opinion that after the revival of the suit if his title to the land is proved he will then be entitled to a decree for demolition of the house. The point thus has no force. I would, accordingly hold that the suit, the title appeal in the court of appeal below and this second appeal stand abated. No costs.