A suit for declaration of title and recovery of possession of land abates under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956.

1. This second appeal has been filed by the defendant from a reversing decision dated 31.03.1976, of the Subordinate Judge, Aurangabad. The suit was for a declaration of title and recovery of possession over the khatiani land bearing plot No. 1127 of khata No. 87 measuring 35 decimals of land of village Obra, police station Obra, in the district of Aurangabad. It was further prayed that the rooms and verandah which had been constructed by the defendant during the pendency of the suit be demolished and the plaintiffs be given its vacant possession. The lower appellate court accepted the case of the plaintiffs and held that the plaintiffs had title to the case land and that the defendant dispossessed him from the suit land by the construction of a house during the pendency of this suit. It accordingly, decreed the suit and directed the defendant to demolish the house within three months of its order.

2. In this case it is not disputed that a notification u/s. 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (briefly the Act) was published in the official gazette when the title appeal arising out of the present suit was pending in the lower appellate court with respect to Obra Anchal in which the disputed land lay. The defendant-appellant has mentioned about this notification in an affidavit filed in this Court and this fact has not been controverted in the counter-affidavit of the plaintiff-respondents.

3. The substantial question of law which was formulated by this Court u/s. 100(4) of the Code of Civil Procedure is:

"Whether in view of the notification u/s. 3 of the Act the suit, the appeal in lower appellate court and this second appeal all stand abated."

In my opinion, the clear answer to this question must be yes. The relevant Sec. 4(c) of the Act provides that

"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 and 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 provided*******"

From a perusal of the above it is clear that every suit in respect of a declaration of right or interests in any land lying in the area or for declaration and adjudication of any other right in regard to which proceedings can or ought to be taken under this Act shall stand abated. In the instant case admittedly the plaintiffs brought a suit for declaration of title to the land and also prayed for confirmation or in the alternative for recovery of possession. Clearly, therefore, the suit falls within the purview of Sec. 4 (c) of the Act. So the suit and the appeal stand abated.

4. Mr. Kailash Roy appearing for the plaintiff-respondents, however, argued that on the own case of the defendant he had a house standing on the disputed land for a long time. It has been pointed out by him that in the amendment petition for amendment of the plaint the plaintiffs said that during the pendency of the suit the defendant constructed two brick built rooms which were about 18 cubits long north to south and 6 cubits wide with verandah facing west attached thereto and thatched them with straw and further the defendant had also made another brick built verandah about 12-14 cubits being north to south and 6 cubits wide at a short distance north of the aforesaid rooms and rested it on pillars and brick walls. On the basis of this fact it was argued by Mr. Kailash Roy that the defendant had changed the status quo of the land and when the character of the land was so changed it could not be governed by Sec. 4(c) of the Act. Counsel further urged that the consolidation officer under the Act had no power to order demolitio