Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 is mandatory in nature and casts a duty on the court to pass an order of abatement in the circumstances mentioned therein.

Choudhary Sia Saran Sinha, J.

The substantial question of law formulated for disposal of this Second Appeal runs as follows :-

“Whether the suit and the appeal would abate or the suit abated under section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956.”

2. The defendants have preferred this Second Appeal against a JUDGMENT : of affirmance. This Second Appeal was filed on 9th March, 1977. The appeal before the lower appellate court was disposed of on 24th November, 1976. The JUDGMENT : of the trial court is dated 17th January, 1965. It is undisputed that during the pendency of the title appeal before the lower appellate court, on 6th September, 1975, a notification was published declaring the intention of the State Government to make scheme for consolidation of holdings in different parts of the State including Musahari block in which the lands in dispute, the subject matter of this litigation, are situate. It is also not in dispute that the nature of lands involved in this litigation are such as, prima facie, attract the provisions of section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act 22 of 1956 hereinafter referred to as Bihar Act 22 of 1956).

3. On 13th December, 1980, the appellants filed a petition under section 4(c) of Act 22 of 1955 praying that it be declared that the Second Appeal, the title appeal pending before the lower appellate court and the partition suit itself, out of which these subsequent litigations have arisen, stand abated.

4. Learned counsel for the respondents resisted the contention of the learned counsel for the appellants regarding abatement on three grounds. The first ground was that an earlier application filed under section 4(c) of Act 22 of 1956 by the appellants stood rejected by this Court under ORDER :no. 13 dated 5th December, 1980, and this being so the subsequent application for the same the prayer is not maintainable. The second ground urged was that although the notification came into force during the pendency of the title appeal pending before the lower appellate court, no such objection was taken by the appellants and on account of this default, the appellants cannot be allowed to take up such a plea in this Second appeal. The third and the last ground was that the deficit court-fee having been filed beyond time, the Second appeal itself is not maintainable.

5. Taking the third point first, I must say atone that this contention is devoid of any merit. The Second appeal was filed on 9th March, 1977, although limitation expired on 8th March, 1977. The delay of one day was, however, condoned by this Court under ORDER :no. 10 dated 30th September, 1980. Report about the deficit court-fee amounting to Rs. 17.50 was submitted on 28th January, 1980. This report was dealt with by the Registrar of the Court in ORDER :no. 2 dated 7th February, 1978. The Registrar allowed time to the appellants to file the deficit court-fee within fourteen days which he was competent to do. The deficit court-fee was undisputedly filed on 21st February, 1978. There is, thus, no question of the Second appeal being not maintainable on this account and the contention is rejected.

6. The other two contentions are more or less allied and I shall deal with them together. Act 22 of 1956 was enacted with a particular purpose. The purpose was consolidation of holding and prevention of fragmentation. The conditions which prevailed in our State necessitated vesting the consolidation officers, of course, subject to the other restraints on them, put under the Act, with vast powers to enable them to proceed in the matter competently and expeditiously. This necessitated enactment of section 4(c) of Act 22 of 1956 which is in very comprehensive terms and sweeping in nature. It 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,