Patna High Court
Jai Prakash Prasad And Ors. vs Rameshwar Prasad And Ors. on 15 November, 1985
Equivalent citations: AIR1986PAT239, 1986(34)BLJR391, AIR 1986 PATNA 239, 1986 BLJR 391, (1986) PAT LJR 240, (1986) BLJ 114
JUDGMENT S.S. Sandhawalia, C.J.
1. Whether a defaulting litigant can be allowed to raise the plea of abatement under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 for the first time in second appeal despite a designed or at least a negligent failure to do so in the trial Court and in the first appellate Court, has come to be the threshold question herein.
2. The facts themselves are somewhat significantly revealing. Admittedly the suit was filed by the father of appellant 1 on 27th April, 1971, it sought a declaration of title with the consequential relief of the recovery of possession over the suit land with mesne profits. It is the common and, indeed, the appellants' own case that a notification under Section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the 'Act') was promulgated on 10th Sept 1975 during the course of the trial itself. It calls for a pointed notice that it is not even remotely the case of the appellants that the plaintiff remained unaware of this notification. Nevertheless, no plea of any abatement was at all raised and the suit was pressed on merits and it was nearly two years after the said notification that on 30th Aug. 1977 the learned Munsif of Bihar-sharif decreed the same holding entirely in favour of the plaintiff. Inevitably, the defendants appealed and the matter was heard by the learned Subordinate Judge, Nalanda. The appellate proceedings again continued for over three years, and it was only on 4th Oct., 1980 that the lower appellate Court allowed the appeal and set aside the judgment and decree of the Court below and dismissed the suit. It is common ground that not once during the said three years even a whisper of the question of abatement was raised on behalf of the plaintiff. However, when the judgment in first appeal went against him, a specious plea of abatement for the first time is sought to be raised in second appeal before the High Court The core question, therefore, is whether such a plea can be permitted to be raised or sustained
3. Mr. S. C. Ghose, the learned counsel for the respondents, has first rightly highlighted the issue of principle. It was pinpointed that the deceased father of appellant No. 1 was the plaintiff in the suit and was well aware of the notification during the trial itself. He sought and invited a judgment despite the notification. Not only that, he was able to secure a judgment in his favour. When the matter was carried by the defendants to the first appellate Court, he sat on the fence and invited the Court below to decide the appeal on merits. Now that the case has gone against him, it is on principle impermissible to permit the appellants to raise a question which their predecessor plaintiff could well have raised ten years ago at the stage of the trial of the suit itself. We are of the view that on principle the issue of abatement cannot be permitted to be raised in this context.
4. Now, apart from the above, what further deserves to be highlighted is the fact that the question whether a particular suit would abate or not necessarily involves the determination of the questions of fact as well. Not one but ten considerations of fact may well be relevant and would intervene on the point whether a suit of the nature preferred by the appellants would abate at all or not and, if so, whether it would abate partially or wholly. This indeed may depend on the nature of the suit property itself and whether it comes within the ambit of the definition of 'land' under Section 2(9) of the Act. Reference in this connection may instructively be made to the Division Bench judgment in Mirza Sulaiman Beg v. Harihar Mahto, AIR 1985 Pat 227. Again the issue may well turn on whether the suit would abate partially or wholly depending on the composite nature of the property or otherwise; Further intricate question of fact can well arise whether such a composite property is divisible or indivisible in nature. These aspects were recently adverted to by the Division Bench in Bettiah Estate v. Pushpa Devi Second Appeal No. 309 of 1977 decided on 13th Aug. 1985 : (reported in 1986 Pat LJR 222). Therein it was held as under : --
"(i) where the suit property is wholly within the definition of 'land', the whole of the suit would abate,
(ii) where the suit property does not come within the said definition at all, no question of abatement would arise even though such property may be situated within the area notified for consolidation under Section 3(1); and
(iii) where the suit property is composite in nature but is clearly divisible then the suit would abate with regard to the property which is within the meaning of Section 2(9) but would continue with regard to property which is not so."
It is manifest from the above that innumerable considerations of issues of fact may well arise on the question of abatement of a particular suit,
5. Equally then considerations whether the document relied upon is void or voidable one in the light of the observations of the Final Court in Gorakh Nath Dube v. Hari Narain Singh, AIR 1973 SC 2451 may also come in. It is thus manifest that these are innumerable issues of fact which must be raised at the very first instance when they become available to the litigant and be adjudicated by the Courts below. This not having been done either deliberately or negligently, such issues of fact cannot now be raised in second appeal. It is well settled beyond cavil that a second appeal would lie only on a substantial question of law and the more so after the amendment of Section 100 of the Civil P.C. in the year 1976. For this added consideration also, the question of abatement in this context cannot be permitted to be raised for the first time in second appeal.
6. A specious attempt was made to rely on the Full Bench judgment in Sheoratan Chamar v. Ram Murat Singh, AIR 1985 Pat 179. This reliance, however, is patently misplaced. In the said case admittedly the issue as to at what stage the plea of abatement should be raised was not even remotely gone into. Further, the case was not at all of second appeal and arose in a first appeal from an original decree. It is well settled ever since Quinn v. Leathem (1901) App Cas 495, that a judgment is only an authority for what it actually decides. In Sheoratan Chamar v. Ram Murat Singh there is not a hint of even a consideration of such an issue, far from the same having been decided.
7. Inevitably, reference must now be made to Most. Kalia Devi v. Khub Lall Mahto, 1982 Pat LJR 250, which to some extent goes in aid of the stand taken on behalf of the appellants. Basic reliance in the said case was placed on Chattar Singh v. Thakur Prasad Singh, AIR 1975 SC 1499. What, however deserves pointed notice is the fact that therein the notification under Section 3 of the Act was issued during the pendency of the appeal before the Supreme Court. Plainly enough, where the very claim to abatement becomes available to the party only during the pendency of the appeal, be it first appeal or a second appeal, it can necessarily be raised only at that stage. Further, the short order of their Lordships in Chattar Singh v. Thakur Prasad Singh, (AIR 1975 SC 1499) (supra) was a consensual one and rested on a concession of the learned counsel of the parties which was expressly noticed. It is thus manifest that the said judgment is plainly distinguishable and reliance thereon for the contrary view in Most. Kalia Devi v. Khub Lall Mahto, (1982 Pat LJR 250) (supra) was not well placed.
8. The brief discussion in a single paragraph in Most. Kalia Devi's cases on this point would indicate that the matter was not adequately canvassed before the learned single Judge. The matter was not examined in depth on principle. Inevitably the subsequent Division Bench judgments of this Court, which have been referred to above, could not come up for consideration. The peculiar limitations of a second appeal in the context of issues of fact were not adverted to. For all these reasons, with the greatest respect, it must be held that this judgment in Most. Kalia Devi v. Khub Lall Mahto (supra) does not lay down the law I correctly and is hereby overruled.
9. To conclude on the main aspect, it must be held that a defaulting litigant cannot be allowed to raise a plea of abatement under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act for the first time in second appeal if he designedly or negligently failed to do so in the trial Court and in the first appellate Court.
10. Now applying the above, the basic argument raised on behalf of the appellants claiming that the suit and the whole proceedings from the very inception had abated must, therefore, be rejected. It must be further noticed that no challenge worth the name could be raised to the merits of the controversy. The appeal, therefore, must fail and is hereby dismissed but we would leave the parties to bear their own costs.
S. Shamsul Hasan, J.
11. I agree.