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1983 Supreme(Pat) 308
HIGH COURT OF PATNA
A. K. Sinha, J.
Bibi Sobaratan and another - Petitioners
Versus
Md. Kamaluddin - Opposite Party
Civil Revision No. 403 of 1983
Decided on : 15.11.1983
For the petitioners: Mr. Ganga Prasad Roy
For the Opp. Party : Mr. R. R. Saran
The issuance of a notification in the official gazette by the State of Bihar stating that the consolidation operations have been closed in the unit concerned is a must under section 26A of the Act and till this notification is not published the abatement operates.
Headnote:
BIHAR CONSOLIDATION OF HOLDINGS AND PREVENTION OF FRAGMENTATION ACT, 1956 - SECTION 4(C) - SUIT FOR DECLARATION OF TITLE - APPLICABILITY OF SECTION 4(C) - COURT ANALYSIS AND CONCLUSION: The court held that the suit was hit by the provisions of section 4(c) of the Act as the consolidation proceeding was still ongoing in the mauza where the disputed lands were situate. The court reasoned that the issuance of a notification in the official gazette by the State of Bihar stating that the consolidation operations have been closed in the unit concerned is a must under section 26A of the Act and till this notification is not published the abatement operates. The court further held that the two reasons given by the court below for holding that the suit was not hit by the provisions of section 4(c) of the Act were against the well established principles of law.
Fact of the Case:
The plaintiff filed a title suit for declaration of his title over the lands mentioned in the schedule of the plaint on the basis of the deed of gift dated 20.1.1981 executed in his favour. The defendants contended that the suit was hit by the provisions of section 4(c) of the Act and it has abated, as the consolidation proceeding, admittedly, was going on in the mauza in which the disputed lands are situate.
Finding of the Court:
The court held that the suit was hit by the provisions of section 4(c) of the Act as the consolidation proceeding was still ongoing in the mauza where the disputed lands were situate. The court reasoned that the issuance of a notification in the official gazette by the State of Bihar stating that the consolidation operations have been closed in the unit concerned is a must under section 26A of the Act and till this notification is not published the abatement operates.
Issues: Whether the suit was hit by the provisions of section 4(c) of the Act.
Ratio Decidendi: The court held that the suit was hit by the provisions of section 4(c) of the Act as the consolidation proceeding was still ongoing in the mauza where the disputed lands were situate. The court reasoned that the issuance of a notification in the official gazette by the State of Bihar stating that the consolidation operations have been closed in the unit concerned is a must under section 26A of the Act and till this notification is not published the abatement operates.
Final Decision: The court allowed the application and set aside the impugned order. The court held that the suit was hit by the provisions of section 4(c) of the Act.
Ashwini Kumar Sinha, J.-Defendants in Title Suit no. 85 of 1982 are the petitioners in the instant applicant. This application is directed against the ORDER :dated 18th January, 1983 by which the Court rejected the application filed by the defendants-petitioners under section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as 'the Act') and' held that the suit was not hit by the provisions of section 4(c) of the Act, as the genuineness of the documents (on the basis of which the plaintiff wanted declaration of his title) is challenged and that has to be decided in the suit and hence in view of the decision of the Supreme Court in the case of Gorakh Nath Dube vs. Hari Narain Singh and others (A.I.R.1973 Supreme Court, 2451), the suit was well within the jurisdiction of the civil court.
2. The plaintiff-opposite party filed a title suit (85 of 1982) in the court of the Munsif 2nd, Buxar, for declaration of his title over the lands mentioned in the schedule of the plaint on the basis of the deed of gift dated 20.1.1981 executed in his favour. It is desirable to quote the relevant prayer, the plaintiff has asked for:
"Amurdadarsi
1. Yeh ki batajwij marativ munderje arji yeh declare kiya jaye ki baksisname mar-kume tarikh 20.1.81 bahak man muddai sahi wo asli hai bajariye jiske ma-nmuddai ko kul hak hasil ho gaya hai.
2. Yeh ki kharcha adalat wo digar dadarsi munasib dila mile.
Jamima no. 1
Tafsil Erazi bake mauza Turkchakia, thana Buxar, zila Bhojpur:
Khafa Plot A.D.
4 55 O-6 Tar per wo khand
1-19 Jotwas
96 --------------
1-25
Buxar Fidwi
Dinank 17.7.82"
3. Admittedly, a notification under section 3 of the Act was published by the State of Bihar expressing its intention to make scheme for consolidation of holdings with regard to Buxar Anchal including the mauza where the disputed lands are situate. Admittedly, no notification bas been issued by the State Government as yet in the official gazette under section 26A of the Act for purpose of closing consolidation operation in respect of the mauza in question where the disputed lands are situate. There are also other admitted facts and they are these: The chak map of the concerned mauza stands already confirmed on 17.7.1976 by the Deputy Director of Consolidation under section 13(1) of the Act. The delivery of possession, as well, is already given to the ratyats and the certificates of transfers have also been given to the raiyats on 17.11.76.
4. In view of the aforesaid admitted facts, which are not under challenge, the plaintiff filed a petition under section 10(b) of the Act before the Consolidation Officer, Buxar, on the basis of his own deed of gift dated 20.1.1981. The plaintiff of the title suit, when he moved the Consolidation Officer by a petition under section 10(b) of the Act, he asked for the correction of the land register: As against this ORDER :of the Consolidation Officer passed on the application filed by the plaintiff under section 10(b) of the Act, the defendants of the present suit have filed a revision before the Director of Consolidation, Bihar, Patna, ,under section 35 of, the Act and, admittedly, this revision application is still pending before the Director of Consolidation, Bihar.
5. The defendants' names, in view of the admitted facts as mentioned above, were mutated by the Circle Officer, Buxar, in respect of the disputed lands and the appeal filed by the plaintiff, as against the ORDER :of mutation by the Circle Officer was dismissed by the Deputy Collector Land Reforms, Buxar, on 9th July, 1983. This statement of fact in paragraph 6 of the petition has not been denied by the plaintiff-opposite party as no counter affidavit has been filed in this case.
6. The defendants-petitioners filed an application under section 4(c) of the Act and con- tended in the title suit in question that the suit was hit by the provisions of section 4(c) of the Act and it has abated, as the consolidation proceedin
