BIBI RAHMANI KHATOON & ORS. versus HARKOO GOPE & ORS.

Citation: [1981] 3 S.C.R. 553 · Decided: 22-04-1981 · Supreme Court of India · Bench: D.A. DESAI · Disposal: Case Partly allowed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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553 
BIBI RAHMANI KHATOON & ORS. 
v. 
HARKOO GOPE & ORS. 
April 22, 1981 
[D.A. DESAI AND BAHARUL ISLAM, JJ.J 
Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956-
Section 4(1}(c}-Scope of-Section provides that, without prejudice to rights of 
parties all pending proceedings at any stage before any court in respect of lands 
taken up for consolidation shall abate-Plaintiffs" suit for declaration of title 
decreed-Notification issued when appeal pending before High Court-Effect of 
notification-Whether judgment and decree of trial court would abate. 
Section 4(1)(c) of the the Bihar Consolidation of Holdings and Prevention of 
Fragmentation AC!, 1956 provides that upon the issue of a notification under 
section 3(1) of the Act every proceeding pending before any court or authority, 
whether of the first instance or of appeal shall, on an order being passed in that 
behalf by the Court or authority before whom such suit or proceeding is pen-
ding, stand abated. The proviso to the section enacts that such abatement shall 
be without prejudice to the rights of persons affected to agitate the right in dis-
pute before the appropriate consolidation authorities in accordance with the 
provisions of the Act. The State Government issued a notification under sec-
tion 3(1) of the Act. 
The plaintiffs' (appellants herein) suit for a declaration of their title and 
for recovery of possession of agricultural lands bearing khata Nos. 458 and 459 
against defendants (respondents herein and three other defendants) was decreed 
by the trial court. Defandant No. 7 claimed interest in Khata No. 458 only while 
the other defendants I to 4 claimed interest in Khata No. 459. On appeal the 
Additional District Judge affirmed the decree of the trial court. Defendant 
No. 7 died when th·e first appeal was pending before the District Judge. Neither 
his legal representatives nor any one claiming under him were substituted nor 
was an appeal preferred by any of them to the High Court. 
!'efore the High Court the defendants I to 4 submitted that the work of 
consolidation of holdings in respect of the lands in dispute having been taken up 
by the concerned authorities consequent on the issue ol a notification under sec-
tion 3 of the Act the appeal would abate by virtue of the provisions of section 4 
of the Act. Accepting the contention the High Court held that the appeal abated 
and· set aside the judgment and decree of the courts below in respect of both 
Khatas 458 and 459. 
In appeal to this Court it was contended on behalf of the appellants-plaintiffs 
that (I) even if the second appeal abated in respect of Khata No. 459 the High 
Court could not set aside the judgment and decree of the trial court as well as of 
the first appellate court both of which became final and (2) in any event, on the 
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554 
SUPREME COURT REPORTS 
[1981] 3 S.C.R. 
death of defendant No. 7 during the pendency of the first appeal, his legal repre-
sentatives having not been substituted, his appeal abated and none of the present 
respondents had any interest in the property. 
Therefore, the High Court was in 
error in setting aside the decree of the trial court in so far as that property was 
concerned. 
Dismissing the appeal in part, 
The effect of a notification issued under Section 3 of the Act bringing a land 
in dispute in a civil proceeding under a scheme of consolidation is that the pro-
ceedings pending in the·civil court either at the stage of trial, appeal or revision 
would come to naught. The High Court was right in holding that the second 
appeal abated in respect of Khata No. 459 and that the judgment and decree 
of the trial court and the first appellate court stood abated along with those 
proceedings. [562 G· H] 
When a scheme of consolidation is undertaken, the Act provides for adjudi-
cating of claims by the authorities under the Act. In order to permit them to 
pursue adjudication of rival claims unhampered by any proceedings in civil courts 
a wholesome provision is made that pending proceedings involving claims to land 
at whatever stage they might be, should abate. To avoid conflict between rival 
jurisdictions the Act provides that such proceedings should be examined exclu-
sively by the authorities under the Act. 
Provision has been made for abatement. 
of pending proceedings as well. [558 F-G] 
The concept of abatement known to civil law is that if a party to a procee-
d

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