IMPORTANT POINT
Act 1956 - abatement of suits.

JUDGMENT

Dipak Misra, J. - Leave granted.

2. Calling in question the legal acceptability of the order dated 2nd May, 2011 passed by the Division Bench of the High Court of Judicature at Patna in LPA No. 947 of 2002 whereby stamp of approval has been given to the order dated 9th August, 2002 passed by the learned single Judge in CWJC No. 1851 of 2000 wherein the learned single Judge affirmed the order dated 17th December, 1999 passed by the Director of Consolidation, Bihar, Patna in Revision Suit Nos. 151/75, 152/75 and 624/77 respectively, the present appeal by special leave has been preferred.

3. The facts which are essential to be stated for the adjudication of the present appeal are that Partition suit No. 123 of 1963 was filed by Sesh Nath Rai, father of the appellant No. 1 and others against Kanta Rai and others. The claim in the suit for partition pertained to the house and “Sahan” standing over plot Nos. 593 and 595 under Khata No. 18. The learned Munsif by judgment and decree dated 4th April, 1968 dismissed the suit observing that the plaintiffs’ stand that one Umraoti Devi was the daughter of Ananta Rai did not appear to be correct. The learned Munsif further opined that there had been a previous partition and the suit was defective for nonjoinder of parties. However, on the determined status, he carved out the shares and concluded that the plaintiffs were not entitled to any relief claimed and accordingly dismissed the suit.

4. Being dissatisfied with the aforesaid judgment and decree the appellants preferred Title Appeal Nos. 30/41 of 1968/71. It is worthy to note that the State Government had issued notification No. 1168 dated 26th November, 1970 under Section 3 of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (for short ‘the Act’) bringing the area under consolidation scheme. Before the appellate court a petition was filed under Section 4 (c) of the Act to the effect that the appeal and the suit had abated by statutory operation of law. The appellate court failed to consider the application and decided that the appeal could not be allowed to proceed as one of the respondents had died during the pendency of the appeal and the application for substitution had been rejected. However, he allowed the appeal to be withdrawn observing as follows:-.

“In the present appeal I find that the suit of the plaintiffs-appellants was dismissed by the learned lower Court and a decree was prepared accordingly. Again by the non-substitution of the heirs of Panna Devi the whole appeal has become incompetent and it has abated against those respondents. As such I have no doubt that a vested right has come into existence in favour of the respondents before the petition for withdrawal was made. Relying on the authorities quoted above I find that the appellants cannot be allowed permission to file a fresh suit. However, they are allowed to withdraw the appeal as prayed for.”

5. Grieved by the aforesaid order a Civil Revision No. 559 of 1975 was filed whereby the learned single Judge returned a finding that the appellant had not made any prayer for withdrawal of the appeal and, therefore, the order passed by the lower appellate court was without jurisdiction and accordingly he remitted the matter to the lower appellate court for disposal of the appeal in accordance with law. It was further observed that any defect with regard to the competency of the appeal shall be decided by the appellate court at the time of hearing of the appeal itself.

6. After the remit the Title Appeal was revived and eventually on 26th November, 1980 the learned sub-Judge, Bhaubhua took note of the fact that the appellant was not represented and the respondent Nos. 1 and 2 had filed cross objection and had also filed an application for abatement of the appeal. The learned sub-Judge noted that the appellant was not interested to contest the appeal and, accordingly, opined that the Title Appeal No. 30/68 and Title Appeal No. 123/63 stood ab