A suit for declaration of title to land and setting aside a deed of gift abates under section 4 (1) (c) of the Bihar Consolidation of Holding and Prevention of Fragmentation Act, 1956.

Shivanngrah Narain, J.

1. This application by the plaintiff is directed against the order dated 18 -.-1978 of the Second Additional Subordinate Judge Jahan-abad, holding that the suit had abated in view of the provisions of section 4 (1) (c) of the Bihar Consolidation of Holding and Prevention of fragmentation Act, 1956 (hereinafter called the act ).

2. In the aforesaid suit the principal relief, claimed by the plaintiff was "for declaration of his title as absolute owner of the lands in suit on declaration that the said deed of gift dated 2-2-1973 purported to be executed by the said Baliram Singh in favour of the defendants is illegal, void and inoperative and not binding on the plaintiff. " The lands were situate in two villages, namely, Solhanda and Naugarh bihta, both in the district of Gaya.

3. The plaintiff claims title to the suit property on the basis of a registered deed of gift executered in his favour by the pro forma who according to the plaintiff was the nearst heir of said Baliram Singh who died on 10-2-1970. According to the plaintiff, the deed of gift dated 2-2-1973 purported to have been executed by Baliram Singh in favour of the defendants 1st party was void and inoperative for reasons which will be set out presently and, therefore, conferred no title upon the defendants 1st party.

4. The suit was resisted by the defendants 1st party on the basis of the aforesaid deed of gift purported to have been executed by Baliram Singh. The defendants contended that the deed of gift was genuine, valid and operative. It is common ground that a notice under section 3 (1) of the Act had been published in the Official Gazette in respect of the area within which the lands are situate. Both the plaintiffs and the defendants maintained that the suit had not abated under the provisions of section 4 (1) (c) of the Act and the hearing of the suit be proceeded with. The evidence of both the parties was adduced, and the case was fixed for argument. In the meantime, the case come up on transfer to the Court of the 3rd Additional Subordinate judge, Jahanabad, and the transferee -Court being of the opinion that it appeared prima facie that the suit had abated in view of the provisions of section 4 (1) (c) of the Act, by his order dated 10-3-1978 directed to issue of notice to the parties to the suit making them to show causs as to why the suit should not be held to have abated. Both the parties appeared and filed show cause and after hearing the parties, the learned Subordinate Judge has passed the impugned order holding that the suit had abated.

5. Sri Lakshman Saran Sinha, the learned Advocate for the petitioner contends that the Court below erred in holding that the suit had abated inasmuch as this was a suit for setting aside a deed of gift which could cease to have legal effect only after it was actually set aside by a competent court and, therefore, was not a suit or proceeding" for declaration or adjudication of any right in regard to which proceedings can or ought to be taken under this Act. " In support of this contention, Sri Sinha has placed reliance upon the decision of the Supreme Court in Gorakh Nath Dubey V/s. Hari narain Singh and others (A. I. R.1973 S. C.2451) and the interpretation upon it by a Full Bench of this Court in Ramkrit Singh and others V/s. The state of Bihar and others, 1979 B. B. C. J.259 ).

6. Before I refer to these decision, it is necessary to set out the relevant statutory provision i. e. section 4 (1) (c) of the Act, which 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,, ensue in the area to which the notification relates, (a) (b) (c) "every proceeding for the correction of records and every suit and proceedings in respect of declaration of ri