Patna High Court
Kalia Devi And Ors. vs Khub Lall Mahto And Ors. on 10 February, 1981
Equivalent citations: 1982(30)BLJR128
JUDGMENT Chaudhary Sia Saran Sinha, J.
1. The substantial question of law formulated for disposal of this Second Appeal runs as follows:
Whether the suit and the appeal would abate or the suit abated under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1966.
2. The defendants have preferred this Second Appeal against a judgment of affirmance. This Second Appeal was filed on 9th March, 1977. The appeal before the lower appellate court was disposed of on 24th November, 1976. The judgment of the trial court is dated 13th January, 1965. It is undisputed that during the pendency of the title appeal before the lower appellate court, on 6th September, 1975, a notification was published declaring the intention of the State Government to make scheme for consolidation of holdings in different parts of the State including Musahari block in which the lands in dispute, the subject matter of this litigation are situate. It is also not in dispute that the nature of lands involved in this litigation are such as prima facie attract the provisions of Section 4(c) of the Bihar Consolidation of holding and Prevention of Fragmentation Act, 1956, (Bihar Act 22 of 1956 hereinafter referred to as Bihar Act 22 of the 1956).
3. On 13th December, 1980, the appellants filed a petition under Section 4(c) of Act 22 of 1956 praying that it be declared that the Second Appeal, the title appeal pending before the lower appellate court and the partition suit itself, out of which these subsequent litigations have arisen, stand abated.
4. Learned Counsel for the respondents resisted the contention of the learned Counsel for the appellants regarding abatement on three grounds. The first ground was that an earlier application filed under Section 4(c) of Act 22 of 1956 by the appellants stood rejected by this Court under Order No. 13 dated 5th December, 1980, and this being so the subsequent application for the same the prayer is not maintainable. The second ground urged was that although the notification came into force during the pendency of the title appeal pending before the lower appellate court, no such objection was taken by the appellants and on account of this default, the appellants cannot be allowed to take up such a plea in this Second Appeal. The third and the last ground was that the deficit court-fee having been filed beyond time, the Second Appeal itself is not maintainable.
3. Taking the third point first, I must say at once that this contention is devoid of any merit. The second appeal was filed on 9th March, 1977, although limitation expired on 8th March, 1977. The delay of one day was, however, condoned by this Court under Order No. 10 dated 30th September, 1980. Report about the deficit court-fee amounting to Rs. 17.50 was submitted on 28th January, 1978. This report was dealt with by the Registrar of the court in Order No. 2 dated 7th February, 1978. The Registrar allowed time to the appellants to file the deficit court-fee within fourteen days which he was competent to do. The deficit court-fee was undisputedly filed on 21st February. 1978. There is, thus, no question of the second appeal being not maintainable on this account and the contention is rejected.
6. The other two contentions are more or less allied and I shall deal with them together. Act 22 of 1956 was enacted with a particular purpose. The purpose was consolidation of holdings and prevention of fragmentation. The conditions which prevailed in our state necessitated vesting the consolidation officers, of course, subject to the other restraints on them, put under the Act, with vast powers to enable them to proceed in the matter competently and expeditiously. This necessitated enact meat of Section 4(c) of Act 22 of 1956 which is in very comprehensive terms and sweeping in nature. It runs as follows :
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, ensure 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 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 ...
7. It would appear from the above quotation that the abatement contemplated therein is a statutory abatement benefit of any formality in the shape of an application being filed by a particular party. This statutory abatement, as the language suggests, springs immediately an an order being passed by the court. Let us examine now the contentions keeping in view these salient features of the statutory provisions.
8. The notification was published during the pendency of the appeal before the lower appellate court. In the petition dated 19th February, 1980, which is an affidavited one, it has been stated that due to ignorance of law, no petition under Section 4(c) was filed before the lower appellate court. Ignorance of law is no excuse but instances are not wanting where substantial question of law, going to the very root of the jurisdiction of courts has been allowed to be raised for the first time in Second Appeal. The language of Section 4(c) as mentioned above, is sweeping in nature. It is also mandatory in nature casting a duty on the court, of course in the circumstances stated therein, to pass the order contemplated therein. Mr. Bishwanath Prasad, learned Counsel for the appellants, citing a decision of the Supreme Court in Chattar Singh and Ors. v. Thakur Prasad Singh , submitted that such a plea was allowed to be taken for the first time even in the Supreme Court. The term 'appeal' mentioned in Section 4(c) would unhesitatingly include a Second Appeal pending before this Court as well. The purpose behind this benevolent enactment also necessitates liberal construction of the relevant provisions to meet the purpose of the legislation. In such a situation, 1 have no doubt in my mind that even if no such plea was taken before the lower appellate court, such plea, in appropriate circumstances, should be allowed to be taken in the Second Appeal. Learned Counsel for the respondents, relying on an unreported Bench decision of this Court(2) argued to the contrary. The facts of that case are totally distinguishable from the facts of this case and the contention of the learned Counsel for the respondents cannot be upheld. The result is that this contention too is negatived.
9. Copy of the earlier petition filed under Section 4(c) was ordered to be served on the Deputy Registrar Guardian of the minor respondents till 2nd September, 1980, by order dated 27th August, 1980, with the further order that failing the same, the petition concerned would stand rejected without further reference to a Bench. Negligently enough the appellants failed to comply with this order. The result was inevitable namely, rejection of that petition. The appellants, however, woke up from their slumber sometime after and came with the instant fresh petition renewing their prayer for abatement Submission of the learned Counsel for the respondents was that the rejection of the earlier petition, in view of order No. 9 dated 27th August, 1980, would stand as bar to the entertainment of the subsequent petition filed by the appellants on account of res judicata. The submission of Mr. Bishwanath. Prasad was to the contrary, namely, that the petition not having been disposed of on merits i.e., the matter not having been heard and finally decided by the court and the petition having been rejected technically for the failure of the appellants to comply with the court's order, no question of resjudicata can arise. I find sufficient force in this contention of Mr. Bishwanath Prasad. The provision quoted above costs a duty on the court to pass the order of abatement in the circumstances mentioned therein. In such a situation, rejection of a petition on technical ground should stand in the way of the court in discharging its duties required by law in appropriate circumstances.
10. Thus, negativing all the three contentions raised on behalf of the respondents, it is ordered that partition suit No. 90/82 of 1962/1964, Title appeal no 26/18 of 1965/1969 as also this Second Appeal stand abated with the inevitable consequences flowing from law.