Patna High Court
Permeshwari Devi And Ors. vs Sobha Devi And Ors. on 21 May, 1984
Equivalent citations: AIR1985PAT225, AIR 1985 PATNA 225, (1984) PAT LJR 868
JUDGMENT P.S. Mishra, J.
1. Before going to the merits, learned counsel for the appellants pressed before me his application filed in this Court on 20-5-80 and contended that in view of the provisions under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act) the appeal in this Court, the appeal in the court below and the suit have abated. He has relied upon notification issued in this regard on 12-10-1972 under Section 3 of the Act and the fact that the land in dispute although 38 decimals in area is bakasht, and thus used for agricultural purposes. Learned counsel for the respondents in their separate contentions, however, have disputed the claim of the appellants that the appeal and the suit have abated. The parties have been heard at length.
2. By Bihar Act 27 of 1975 substantial amendment was introduced in the Act including the provisions contained in (Section 4(1)?) Clauses (b) and (c) thereof which runs as follows : --
"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. --
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(b) no suit or other legal proceeding, in respect of any land in such areas shall be entertained in any court, and in calculating period of limitation applicable to such suits or proceedings, such period shall not be counted.
(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 stands abated."
Evidently in view of the definition of land in Section 2(9) of the Act the land in dispute being bakasht of an agriculturist shall attract the provisions under Section 4(1)(b) and 4(1)(c) of the Act.
3. Mr. B.K. Roy as also Mr. Sachidanand Jha, learned counsel for the respondents, however, have contended that:
(1) As the provisions under Section 4(1)(b) and 4( 1) (c) of the Act have been introduced in the Act in the year 1975 and the notification in the instant case under Section 3 of the Act had been made before the amendment came in force, the provision as to the abatement of the suit shall not apply to the instant case.
(2) The land in question is a part of the commercial site being in vicinity-of a public road and in fact being used as such by establishing two shops therein and as such it is not agricultural land. Since it is not agricultural land the provision of abatement cannot be applied to it.
(3) Although not specifically praying for declaration that settlement made by Raj Rano Kuer in favour of Thakur Prasad was invalid in fact the suit embraces a relief for a declaration to the said effect and as the plea raised in this regard is that such settlement was without legal necessity, the grievance made against the settlement, if accepted, alone would defeat the settlement. In short the settlement in question is only voidable and not void. This being the position whether a document is voidable or not is not a plea which can be raised before an authority under the Act. The suit for this reason shall not abate.
4. On the first question the answer is available in the amendment Act itself. The provisions under Section 4(1)(b) and 4(1)(c) of the Act have been introduced as if they existed in the Act from the day it came in force. That being the position, it shall fictionally be deemed to be in existence in the year 1972 also when the notification under Section 3 of the Act was made. Mr. Roy in view of this position in law did not seriously pursue this contention.
4A. The second contention raised by learned counsel for the respondents should also not detain us long. Sheet-anchor of this submission of the learned counsel is the authority of this Court in the case of Ram Pratap Mahto v. Diplal Mahto, 1979 BBCJ (HC) 738. A Division Bench of this Court has laid down in the said case that under the tenancy law homestead has an accepted connotation and without trying to be exhaustive one could say that homesteads are connected with cultivation. Of course, it has been pointed out in the said case that by virtue of the explanation incorporated in Section 2(3) of the Act the land which was orchard or grave in the agricultural year immediately preceding the year in which the notification under Section 3 was issued, the land subject to aluvial action and intensive soil erosion, such compact areas as are normally subject to prolonged water logging and such other areas of the consolidation may be declared to be unsuitable for the purpose of consolidation. It is possible that the Director of the consolidation may declare certain lands or class of lands as unsuitable for the purpose of consolidation. But that in itself cannot mean that a land in respect of which a notification has been issued shall be declared by a court not capable of being included in the notification merely because there are certain assertions that the land in question has ceased to be what it had been. A land may not have a fixed character, but so long it is not proved that its character has changed, it has to be assumed that it retains its original character. A burden of this kind cannot be discharged by casual allegations of fact. A party trying to assert that although the land originally was one which could be governed by the provision of the Act, it has ceased to be so must by evidence prove this fact. Although in a different context but considering how a change in the character of a land can be acknowledged, a Division Bench of this Court to which I am a party in the case of Mangtoo Ram v. State of Bihar, AIR 1984 Pat 45 has pointed out that some positive and cogent acts must be shown to have interfered with and caused the change in the character of the land. The only assertion in the counter-affidavit to the petition of the appellant is that the land is situated near a public land which has become a commercial site and there are tea and toddy shops established therein. I am not satisfied that merely on such assertions or proof therefor it can be shown that the land which has been used for agricultural purposes has ceased to be agricultural land.
5. So far the third contention is concerned it is undoubtedly ingenious but not supported by the contents of the plaint. What has been averred in the plaint is that the settlements were illegal because they were made without any legal necessity but it has also been averred that the settles returned possession to the settler's successor. The instant suit is pure and simple a suit for declaration of title and recovery of possession.
6. To conclude I have no hesitation in holding that the suit, the appeal in the court below and the appeal before this court have all abated and the matter has to go in the hands of the consolidation authorities. The abatement should accordingly be recorded. This appeal is disposed of but without costs.