Holding

Under Section 4(1)(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, a notification under Section 3 abates the entire civil proceeding, including the judgments and decrees of the trial and first appellate courts, but the decree on khata No. 458 remains effective because the appeal concerning that parcel had abated due to the appellant’s death without substitution.

Summary

Bibi Rahmani Khatoon and others sued Harkoo Gope and others for declaration of title and possession of two agricultural land parcels (khata Nos. 458 and 459). The trial court and the first appellate court declared the plaintiffs owners of both parcels. While a second appeal was pending, the State Government issued a notification under Section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, bringing the village into a consolidation scheme. Section 4(1)(c) of the Act provides that all civil proceedings concerning the land shall abate upon such notification. The High Court held that the second appeal abated and set aside the judgments and decrees of the lower courts. The Supreme Court examined whether the Act’s abatement provision extinguishes the substantive decrees and also considered the effect of the death of Defendant No. 7, whose appeal had abated. The Court held that the notification does abate the entire civil proceeding, including the lower‑court judgments, but that the decree concerning khata No. 458 remains valid because the appeal relating to that parcel had abated due to the appellant’s death without substitution. Consequently, the appeal was allowed in part: the proceedings concerning khata No. 459 were abated, while the trial‑court decree on khata No. 458 was restored.

Issues considered

The effect of a notification under Section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 on pending civil proceedings, specifically whether it abates only the appeal or also the judgments and decrees of lower courts.
Whether the death of a party (Defendant No. 7) and the lack of substitution of legal representatives cause abatement of his appeal and affect the decree concerning the land parcel he claimed.
Whether the High Court was empowered to set aside the trial‑court and first‑appellate court decrees in addition to abating the pending appeal.

Legislation cited

Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956s. 3(1), s. 4(1)(c)

Subjects

Consolidation of holdingsAbatement of civil proceedingsSection 4(1)(c) ActLand title disputeDeath of party and substitutionBihar Consolidation of Holdings ActNotification under Section 3Civil appeal

Judgment

553

BIBI RAHMANI KHATOON & ORS. A
v.
HARKOO GOPE & ORS.
y
April 22, 1981
B
[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 c
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- D
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 E
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 F
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 G
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
H
the first appellate court both of which became final and (2) in any event, on the
554 SUPREME COURT REPORTS [1981] 3 S.C.R.

A 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. y
Dismissing the appeal in part,
B
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

c 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
n 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-
ding dies either in the course of trial or appeal or revision and the right to sue
survives, the heirs and legal representatives of the deceased party would have to be
E substituted, failure to do which would result in abatement of the proceedings. If
a party to an appeal or revision dies and if the appeal or revision abates it will
have no impact on the judgment, decree or order against which the appeal or
revision is preferreds. Such judgment, decree or order under appeal or revision
would become final. [559 B-D]

F
But the abatement contemplated by section 4 of the Act is of a different
kind. If the concept of abatement as understood in the Code of Civil Proce-
dure is imported into this case, it would do irreparable harm to the parties. For
example, if an appeal abates rendering either the judgment of the trial court
or the judgment in the first appeal final and binding the consolidation
authorities would also be bound by it and the party whose appeal or
G revision abated would lose the chance of persuading the appellate or revisional
authority to accept its case which may result in interfering with or setting aside
the judgment etc. ir, appeal. That this could not be the intention of section 4 is
manifest from the proviso to clause (c) of section 4. By virtue of the proviso no
one would stand to suffer on account of abatement because a special forum is
carved out for adjudication of the rights of parties. [5S9 E-G]

fl Ram Adhar Singh v. Ramroop Singh and Ors. [1968] 2 S.C.R. 95, Chattar
Singh and Ors. v. Thakur Prasad Singh, A.I.R. 1975 SC 1499, and Satyanarayan.
Prasad and Ors. v. State of Bi har and Anr., A.LR. 1980 SC 2051; referred to.
BIBI RAHMANI v. HARKOO GOPE (Desai, J.) 555

The High Court was in error in holding that the judgment and decree in A
respect of Khata No. 458 also abated. Defendant No. 7 claimed separate, specific
and exclusive right in respect of that Khata. On his death his legal representa-
tives having not been substituted, his appeal abated. His legal representatives
did not prefer an appeal to the High Court. The appellants' title in respect of
Khata 458 therefore became established under the decree of the trial court. The
abatement of the second appeal will have no impact on the appellants to Khata
No. 458. (562 C-E] B
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1359
of 1981.

Appeal by special leave from the judgment and order dated the
18th August, 1979 of the Patna High Court in Second Appeal
No. 697 of 1974.
c
B.P. Singh for the Appellants.

S.K. Mehta for the Respondents.

The Judgment of the Court was delivered by D
DESAI, J. Mst. Bibi Rahmani Khatoon and others filed Title
Suit No. 3/70 in the Court of the Additional Subordinate Judge I,
Gaya for declaration of their title and for recovery of possession of
agricultural !ands admeasurlng 4 acres 29 gunthas comprised in two
holdings bearing khata nos. 458 (nakdi) and 459 (Bhouli) in Touzi E
No. 7535 situated in village Parsain. The defendants in the suit
-"'\ were the present respondents and three others defendants Nos. 5, 6
and 7. One Brahmadeo was defendant 7 claiming an interest in
khata no. 458 on the basis of a sale deed executed on March 3 l,
1959, by one Deonandan Singh who was defendant 5 in the trial
court. It must be made distinctly clear that Brahmadeo claimed F
interest in khata no. 458 while the present respondents Claimed
interest in khata no. 459 only. The trial court decreed the suit
declaring that the plaintiffs were the owners of both the khatas and
were entitled to recover possession of the same.

Title Appeal No. 7/74 was preferred in the court of the Distt. G
Judge, Gaya, and it was heard by the learned Fourth Addi. District
Judge as per his judgment and decree dated July 12, 1974. The
learned Addi. District Judge dismissed the appeal and affirmed the
decree of the trial {;Ourt.
H
Present respondents alone preferred Second Appeal No. 697/74
in the High Court of Judicature at Patna. It must be specificafly
556 SUPREME COURT REPORTS (1981] 3 S.C.R.

A mentioned that neither defendant 7 Brahmadeo who died pending
the appeal before the District Court and whose legal representatives
were not impleaded, nor anyone claiming under him either came to
be substituted in the appeal pending in the District Court nor any
of them preferred appeal to the High Court. This has some rele-
vance to the disposal of the appeal before us and, therefore, it has
B been categorically set out.

Harkoo Gope and three others who claimed interest in khata
no. 459 only, preferred second appeal against the dismissal of their
appeal by the learned Distt. Judge. When the Second Appeal
No. 697/74 was pending in the High Court, an affidavit was filed
c on behalf of the appellants (respondents in this Court) on November
16, 1978, drawing attention of the Court to a notification under s.3
of the Bibar Consolidation of Holdings and Prevention of Fragmen-
tation Act, 1956 ('Act' for short) and further intimating to the Court
that the village in which the disputed khatas were situated was taken
up for consolidation of holdings and, therefore, the appeal pending
D in the High Court would abate in view of the provision contained
in s. 4 of the Act. The High Court accepted the submission and
disposed of the appeal by its order dated August 18, 1979, the ope-
rative portion of which reads as under :

"The appeal abates and the judgments and decrees of
both the courts below are hereby set aside as having
E
abated".

Original plaintiffs having been dissatisfied by the order of the High
Court not only abating the second appeal preferred by the respon-
dents but also setting aside the judgments and decrees of the trial
court and the first appellate court as having abated, have preferred
F this appeal by special leave.

Shri B.P. Singh, learned counsel who appeared for the appel-
lants contended that even if the Second Appeal abates by virtue of
the provision contained in s. 4, on issue of a notification under s. 3
of the Act, the High Court cannot set aside the judgments and
G
decrees of the trial court and the first appellate court as according
to him when an appeal abates the judgment and decree of the court
against which the appeal is preferred becomes final. The second
contention of the learned counsel is that in any view of the matter
as the present respondents had no interest in khata no. 458 and as
H
Brahmadeo on sale to him by Deonandan Singh alone claimed inte-
rest 'in khata no. 458 and since the death of Brahmadeo when the
BIBI RAHMANI v. HARKOO GOPE (Desai, J.) 557

first appeal was pending and his heirs and legal r~presentatives A
having not been substituted, the appeal qua him in respect of khata
no. 458 had abated and the present respondents could not have pre-
y ferred appeal in respect of khata no. 458 and, therefore, the
High Court could not have set aside the decree in respect of khata
no. 458.
B
Section 3 of the Act confers power on the State Government
to make a declaration of its intention to frame a scheme for consoli-
dation of holdings. When the State Government entertains an in-
tention to make a scheme for consolidation of holdings in a given
village, it has to issue a notification declaring its intention to make
a scheme for the consolidation of holdings in the specified area. c
Section 4 provides that upon the publication of a notification under
sub-s. (I) of s. 3, the consequences enumerated in s. 4 shall ensue.
One such consequence is as set out in sub-clause (c) which reads as
under:-

"4. Effect of notification under section 3( I) of the D
Act-

Upon tl,le publication of the notification under sub-
section (I) of section 3 in the official Gazette the con-
sequences, as hereinafter set forth, shall, subject to the
provisions of this Act, from the date specified in the E
notification till the close of the consolidation opera-
tions ensue in the area to which the notification relates,
namely:-

F
(c) every proceeding for the correction of records and
every suit and proceedings in respect of declaration of
rights of interest in any land lying in the area or for
declaration or 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 whe- G
ther of the first instance or of appeal, reference or revi-
sion, shall, on an order being passed in that behalf by
the court or authority before whom such suit or pro-
. ceeding is pending, stand abated".

There are as many as 5 provisos to clause (c) of s. 4 but only one is H
material which reads as under :
558 SUPREME COURT REPORTS [1981) 3 S.C.R.

A "Provided further that such abatement shall be with-
out prejudice to the rights of the persons affected to
agitate the right or interest in dispute in the said suits
or proceedings before the appropriate consolidation
authorities under and in accordance with the provisions
of this Act and the rules made thereunder".
B
Present appeal arises out of a suit filed by the present
appellants, who were plaintiffs, for a declaration of their title and
consequential relief of possession meaning that it was a suit
concerning agricultural land to which title was claimed and disputed.
This suit was pending in Second Appeal at the instance of the
c respondents when the notification under s. 3 {I) came to be issued.
Accordingly, s. 4 (c) would be attracted and the necessary con-
sequence statutorily prescribed, must ensue. Therefore, it is
incontrovertible that the second appeal would abate. Shri Singh,
learned counsel for the appellants does not dispute this legal
consequence.
D
The grievance of Shri Singh is that the High Court while
making an order declaring that the second appeal has abated, was
in error in setting aside the judgments and decrees of the trial court
as well as of the first appellate court which were in favour of the
present appellants on the ground that those proceedings have also
E abated. At first blush this argument is very attractive but if accepted
it has a potentiality of doing irreparable harm.

\\!hen a scheme of consolidation is undertaken, the Act
provides for adjudication of various claims to land involved in
consolidation by the authorities set up under the Act. In order to
F permit the authorities to pursue adjudication of rival claims to land
unhampered by any proceedings in civil courts, a wholesome provi-
sion was made that the pending proceedings involving claims to land
in the hierarchy of civil courts, may be in the trial court, appeal or
revision, should abate. This provision was made with a view to
G ensuring unhampered adjudication of claims to land before the
authorities under the Consolidation Act without being obstructed
by proceedings in civil courts or without being hampered or impeded
by decisions of the civil courts in the course of consolidation of
holdings. In order to avoid conflict consequent upon rival jurisdic-
H tions the legislature provided that the proceedings involving the
claims to land put in consolidation should be exclusively examined
BIB1 RAHMANI v. HARKOO GOPE (Desai, J.) 559

by the authorities under the Consolidation Act and all rival jurisdic- A
tion would be closed. Simultaneously it was necessary to deal with
the pending proceedings and that is why the provision for abatement
y of such proceedings.

The concept of abatement is known to civil law. If a party to
a proceeding either in the trial court or any appeal or revision dies B
and the right to sue survives or a claim has to be answered, the
heirs and legal representatives of the deceased party would have to
> . be substituted and failure to do so would result in abatement of
proceedings. Now, if the party to a suit dies and the abatement
takes place, the suit would abate. If a party to an appeal or revision
dies and either the appeal or revision abates, it will have no impact c
on the judgment, decree or order against which the appeal or
revision is preferred. In fact, such judgment, decree . or order under
appeal or revision would become final. Such is not the scheme of
abatement as conceived by s. 4 of the Act. Here, if the abatement
as is conceptually understood in the Code of Civil Procedure is
imported, it will do irreparable harm. To illustrate, if an appeal D
abates rendering either the trial court judgment or the judgment in
first appeal final and binding; the consolidation authorities would
also be bound by it and the party whose appeal or revision
abated would lose its chance of persuading the appellate or revisional
authority to accept its case which may result in interfering with or
setting aside the judgment, order or decree in appeal. Such was not E
and could not be the intention of s. 4. This becomes manifestly
clear from the proviso to clause (c) of s. 4 extracted hereinabove
which shows that such abatement shall be without prejudice to the
rights of the person affected to agitate the rights or interest in
dispute in the suit or proceeding before the appropriate consolidation
authorities under a'ld in accordance with the provisions of the Act. F
No one would, therefore, stand to suffer on account of the abate-
ment because there is a special forum carved out for adjudication
of the rights which were involved in proceedings which would abate
as a consequence of the notification under s. 3. If the construction
as canvassed for were· to be adopted it would result in irreparable
harm ·and would be counter-productive. The consolidation work G
would be wholly hampered and a party whose appeal is pending
would lose the chance of convincing the appellate court which, if
successful, would turn the tables against the other party in whose
favour the judgment, decree or order would become final on
abatement of the appeal. Therefore, the legislature intended that not H
560 SUPREME COURT REPORTS [1981) 3 S.C.R.

A only the appeal or revision would a bate but the judgment, order or
decree against which the appeal is pending would also become non-
est as they would also abate and this would leave consolidation
authority free to adjudicate the claims of title or other rights or y
interest in land involved in consolidation. In our opinion, there-
fore, the High Court was right in not only holding that the second
B appeal pending before it abated but also the judgment and decree
of the trial court and first appellate court would stand abated along
with those proceedings. We reach this conclusion on the language
of ss. 3 and 4 and the scheme of the Act but the view which we
are taking is also borne out by some decisions though in none of
th em this position was directly canvassed.
c
In Ram Adhar Singh v. Ramroop Singh & Ors.,(1) this Court
examined the effect of a provision in pari materia in a parallel
statute, namely, s. 5 of the Uttar Pradesh Consolidation of Holdings
Act, 1953 ('U. P. Act' for short). Section 5 provided for the
consequences of a declaration of intention to prepare a scheme for
D
consolidation of holdings made under s. 4. As the section stood
prior to its amendment in 1966, it did not provide for abatement
of proceedings pending in civil courts at the commencement of
consolidation proceedings. By the Amending Act 21 of 1966, s. 5
was amended introducing sub-s. (2)(a) to provide for abatement of
E pending proceedings. This section is in pari materio with s. 4 (c) of
Act. At the time of the issue of the notification an appeal by special
leave was pending in this Court and a notice of motion was taken
out requesting the Court to pass an order abating the appeal after
taking note of sub-s. (2)(a) introduced by the Amending Act of 1966.
After negativing the contention challenging the constitutional
F validity of the Amending Act, this Court held that the suit out of
which the appeal came to the Court would stand abated in view of
sub-s. (2) (a) introduced in s. 5. The emphasis is that not only
would the appeal pending in this Court abate but the suit as a
whole abated. True it is that no contention was taken whether only
the appeal would abate keeping the judgment under appeal intact
G or the suit as a whole would abate, but the observation of this
Court will clearly indicate that in the opinion of this Court the suit
as such would abate rendering the appeal pending before this Court
infructuous. This decision in Ram Adhar Singh's case supra was

H (l) [1968] 2 S.C.R. 95.
BIBI RAHMANI v. HARKOO GOOPE (Desai, J.) 561

in terms followed in Chattar Singh & Ors. v. Thakur Prasad Singh(1). A
The appeal in Chattar Singh"s case related to a suit which had a
reference to a claim to the land in respect of which a notification
y was issued under the UP. Act as amended by Act 21 of 1966.
The notification was issued when the appeal was pending before
this Court. The appellants moved for passing an order of abate-
ment. Granting the motion, this Court held that tl,e suit and the B
appeals stood abated, leaving it open to the parties to work out the
rights before the appropraiate authorities under the U. P. Act.
Both the aforementioned decisions were noticed in Satyanarayan
Prasad Sah and others v. State of Bihar and another. (2) In that case
upon the issue of a notification under s. 3 of the Act at a time
when the matter was pending in the High Court an order was made c
under s. 4 (c) abating the proceeding as also the suit from which
the proceeding arose. Writ Petitions were filed in this Court under
Article 32 of the Constitution questioning the constitutional validity
of s. 4 of the Act as being violative of Arts. I 4 and 19 of the
Constitution. After repelling the challenge to the vires of s. 4. this
Court affirming the decisions in Ram Adhar Singh and Chattar D
Singh' s case (supra) held that maybe that the High Court should not
have nullified the decree of the trial court but should have merely
declared that the proceeding stood abated which this Court
understood to mean that the civil proceeding comes to a naught.
In other words, the proceedings from its commencement abate and
no decision in the proceeding at any stage would have any impact E
on the adjudication of claims by the parties under the Act.

Accordingly, both on principle and precedent it is crystal
clear that where a notification is issued bringing the land involved
in a dispute in the civil proceeding under a scheme of consolidation
the proceedings pending in the civil court either in the trial court,
F
appeal or revision, shall abate as a consequence ensuing upon the
issue of a notification and the effect of abatement would be that
the civil proceeding as a whole would come to a naught. Therefore,
the order of the High Court impugned in this appeal is legal and
valid so far as it not only directed abatement of the appeal pending
before the High Court but also abating the judgments and decrees
G
of the trial court and the first appellate court because the entire
civil proceeding came to naught.

(1) A.LR. 1975 S.C 1-499.
(2) A.LR. 1980 S.C. 2051. H
562 SUPREME COURT REPORTS (1981] 3 S.C.R.
A The next contention of Shri Singh was that the Hight Court
ought not to have nullified the decree with regard to khata no. 458
in which Brahmadeo and Deonandan Singh, defendants 7 and 5 res-
pectively, alone were interested and the present respondents had no
interest in khata no. 458. Learned counsel who appeared for the res-
pondents conceded that the present respondents have no interest in
B khata no. 458. It also transpires that Brahmadeo claimed interest in
khata 110. 458 alleging that he had purchased the land involved in
the khata from Deonandan Singh, defendant 5. The suit proceeded
ex-parte against defendants 5 and 6 and Brahmadeo, defendant 7
contested the suit in respect of khata no. 458. The trial court
negatived the contention of defendant 7 Brahmadeo and accepted
c .plaintiff's title. Defendant 7 Brahmadeo along with other defendants
preferred an appeal to the District Court. When the appeal was
pending in the District Court, Brahmadeo, the appellant died. His
legal representatives were not substituted. Since defendant 7
Brahmadeo as appellant claimed separate, specific and exclusive
right to khata no.~458, on his death his legal representatives ought
D to have been substituted. He was the appellant. No one was sub-
stituted on his behalf. Obviously, therefore, the appeal preferred
by Brahmadeo abated. It may also be made clear that legal
representatives of Brahmadeo have not preferred second appeal.
Second Appeal was preferred by the present respondents who
claimed. interest in khata no. 459 only. Accordingly, when the
E appeal preferred by the present respondents abated, it only abated
with reference to khata no.· 459 and in no case it would have any ,i.....
impact on the title of present appellants which became established
under a:decree of the trial court which became final on the appeal
of Brahmadeo having abated before the notification under
s. 3, and it could not at all be dealt with by the High Court. To
F that extent this appeal wlll have to be allowed and an appropriate
modification would have to be made.

Accordingly, this appeal succeeds in part. Proceedings with.
regard to khata no. 459 (Bhouli) in Touzi 7535, village Parsaia
G were rightly abated by the High Court and the civil proceedin:
with regard to khata no. 459 as a whole would abate leaving the
parties to get their rights adjudicated before the authorities under
the Act. The title of the appellants declared by the trial court in
respect of kbata no. 458 (nakdi) has become unchallenieable at the
H hands of Brahmadeo or anyone claiming throuih him and the
BIBI RAHMANI v. HARKOO GOOPE (Desai, J.) 563

abatement of the second appeal will have no impact on the title of A
the appellants to khata no. 458. The declaration made by the trial
court in respect of khata no. 458 is restored. In the circumstances
of the case there will be no order as to costs.
y
P. B. R. Appeals allowed in part.