PARAS NATH RAI AND OTHERSversusSTATE OF BIHAR AND ORS.

                         [2012] 10 S.C.R. 732


A                 PARAS NATH RAI AND OTHERS
                                  v.
                    STATE OF BIHAR AND ORS.
                   (Civil Appeal No. 7234 of 2012)
                          OCTOBER 5, 2012
B
        [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.)

         Land Laws - Bihar Consolidation of Holdings and
    Prevention of Fragmentation Act, 1956 - ss.3 and 4(c) -
C   Partition suit - Dismissed by civil court - Title appeal - During
    pendency thereof, notification issued u/s.3 of the 1956 Act -
    Consequence - Held: Once a notification has been published
    uls.3, every suit and proceeding in respect of declaration of
    rights or interest in any land lying in areas or for declaration
D   or adjudication of any other rights in regard to which
    proceeding can or ought to be taken under the Act pending
    before any court or authority whether of the first instance or of
    appeal, reference or revision, shall, on order being passed
    in that behalf by the court or authority before whom such suit
E   or proceeding is pending shall stand abated with a view to
    ensure the jurisdiction of the consolidation authorities remains
    unhampered and the said authorities are not obstructed by
    the proceedings in civil courts and their decisions are not
    impeded by the decisions of the civil courts - Nothing
F   remains to be adjudicated before the civil court - In the
    present case, title appeal was pending wht1n notification was
    issued u/s.3 of the 1956 Act, whereafter an application uls.4(c)
    of the 1956 Act was preferred to the effect that the appeat and
    the suit had abated by statutory operation of Jaw - It would
    have been advisable on the part of the appellate court to
G   record a finding that the entire proceeding of the civil suit
    stood abated - But the appellate court directed abatement
    because of non-substitution of the legal heirs of one of the
    respondents - Hence, the suit as well as the appeal abated

H                                 732
        PARAS NATH RAI v. STATE OF BIHAR                 733


and resultantly the very commencement of the civil               A
proceeding came to a naught and, therefore, findings
recorded in the said proceeding became extinct - High Court
did not appreciate the /is in proper perspective and held that
reliance on the findings recorded by the civil court by the
revisional consolidation authority under the 1956 Act could      8
not be faulted - Said conclusion wholly erroneous - Matter
remanded to High Court to decide the matter on merits on
basis of the material brought before the Consolidation
Authorities.

    Abatement - Conceptual difference between statutory          C
abatement and abatement under the CPC.

     Partition suit was filed_ by the father of the appellant
 No. 1 and others. The trial court dismissed the suit
 holding that it was defective for non-joinder of parties and    o
further that the stand of the appellants that 'U' was the
daughter of 'A' did not appear to be correct. The
appellants preferred title appeals. Meanwhile, the State
Govgrnment meanwhile issued notification under Section
3 of Bihar Consolidation of Holdings and Prevention of           E
Fragmentation Act, 1956 bringing the area under
consolidation scheme. Before the lower appellate court,
an application was filed under Section 4 (c) of the Act to
the effect that the appeal and the suit had abated by
statutory operation of law. The lower appellate court did
                                                                 F
 not consider the application but held that the appeal
could not be allowed to proceed as one of the
respondents had died during the pendency of the appeal
and the application for substitution of legal representative
had been rejected. However, it allowed the appeal to be
withdrawn. In revision, the single Judge of the High Court       G
returned a finding that the appellant had not made any
prayer for withdrawal of the appeal and, therefore, the
order passed by the lower appellate court was without
jurisdiction and accordingly he remitted the matter to the
                                                                 H
    734      SUPREME COURT REPORTS           [2012] 10 S.C.R.

A lower appellate court for disposal of the appeal afresh.
  Thereafter, Lower Appellate Court disposed of the appeal
  holding that appellants were not interested to contest
  appeal and that the title appeal stood abated.

       Meanwhile, in the consolidation proceedings, the
8 Director, Consolidation held that 'U' was the daughter of
  'D' and not of 'A'. The said conclusion was arrived on the
  basis of the findings recorded by the civil court. The order
  was affirmed by the single Judge of High Court. In LPA,
  the Division Bench held that as the title appeal had abated
C for non-prosecution by the appellants and as the
  corisolidation authorities had taken note of the findings
  recorded by the civil court, the same was rightly not
  interfered with by the single Judge.

o      The appellant contended before this Court that the
  High Court had fallen into error by concurring with the
  view expressed by the authority below that 'U' was the
  daughter of 'D' as recorded by the civil court without
  taking note of the fact that an application for abatement
E was filed under Section 4 (c) of the Act to the effect that
  the title appeal had abated after issue of the notification
  under Section 3 of the Act. It was urged that the High
  Court committed a grave factual error by expressing the
  view that the appeal had abated because of the non-
F substitution of legal representative and further that once
  appeal as well as the suit stood abated the findings
  recorded in the suit could not have formed the base of
  the decision.
          Allowing the appeal, the Court
G
        HELD:1.1. Once a notification has been published
    under Section 3 of the Bihar Consolidation of Holdings
    and Prevention of Fragmentation Act, 1956, every suit and
    proceeding in respect of declaration of rights or interest
H
        PARAS NATH RAI v. STATE OF BIHAR                735


in any land lying in areas or for declaration or               A
adjudication of any other rights in regard to which
proceeding can or ought to be taken under the Act
pending before any court or authority whether of the first
instance or of appeal, reference or revision, shall, on
order being passed in that behalf by the court or authority    B
before whom such suit or proceeding is pending shall
stand abated with a view to ensure the jurisdiction of the
authorities under the Consolidation Act remains
unhampered and the said authorities are not obstructed
by the proceedings in civil courts and their decisions are     c
not impeded by the decisions of the civil courts. The
purpose of the scheme of consolidation is to avoid
conflict of jurisdiction in order to confer jurisdiction on
the consolidation authorities who are required to
exclusively examine the rival claims of the parties. Apart     0
from that there is conceptual difference between statutory
abatement and abatement under the Code of Civil
Procedure. On the basis of a statutory abatement, the
whole proceeding from its inception stands abated
because the local law has provided an effective
alternative remedy to be perused before an exclusive           E
forum to remedy the grievance raised before the court.
Nothing remains to be adjudicated before the civil court
[Para 30) [751-C-G]

     1.2. In the case at hand, judgment and decree passed      F
by the trial court was assailed in the title appeal. Though
a petition was filed under Section 4(c) of the Act, no order
was passed thereon, yet the appeal was permitted to be
withdrawn. Challenge being made in the civil revision, the
High Court had remanded the matter directing the appeal        G
to be restored to file with a further direction that the
matter would be dealt with on merits including the
competence of the court to hear the appeal. Despite the
remit, the court did not take note of the petition filed by
the appellant under Section 4(c) of the Act, but observed      H
    736      SUPREME COURT REPORTS           [2012] 10 S.C.R.


A that they are not interested to contest the appeal <Jnd
  accordingly directed the appeal stood abated because of
  non-substitution. This order shows total non application
  of mind. As is evincible the consolidation proceedings
  had continued and at one stage the authorities were
B relying on the findings of civil court and at some other
  ignoring the same. Eventually, the matter travelled to the
  High Court in a writ petition. The single Judge ruled that
  the consolidation authorities were justified in relying on
  the findings of civil court. (Para 33] [753-C-G]
c      1.3. In the present case, the title appeal was pending
  against the preliminary decree and an application under
  Section 4(c) had been preferred. It would have been
  advisable on the part of the appellate court to record a
  finding that the entire proceeding of the civil suit stood
D abated. But the appellate court directed abatement
  because of non-substitution of the legal heirs of one of
  the respondents. Hence, the suit as well as the appeal
  abated and resultantly the very commencement of the
  civil proceeding came to a naught and, therefore, findings
E recorded in the said proceeding became extinct. The
  Judge dealing with the writ petition as well as the Judges
  deciding the intra-court appeal did not appreciate the lis
  in proper perspective and opined that the reliance on the
  findings recorded by the civil court by the revisional
F authority under the 1956 Act could not be faulted. The
  said conclusion is wholly erroneous and deserves to be
  overturned. (Para 36] [755-G-H; 756-A-D]

      1.4. The orders passed by the single Judge as well
G as of the Division Bench are set aside and the matter is
  remanded to the file of the single Judge to decide the
  matter on merits on· the basis of the material brought
  before the Consolidation Authorities. [Para 37] [756-E]

          Dr. Jagdish Prasad @ Jagdish Prasad Gupta v. Sardar
H
       PARAS NATH RAI v. STATE OF BIHAR               737

Satya Narain Singh & Ors. 1982 BBCJ-1 and Raja Mahto         A
and Another v. Mangal Mahto and othe1s 1982 PLJR 392 -
not approved.

    Srinibas Jena & ors. v. Janardan Jena & ors. AIR 1981
Orissa 1 (F.B.) - distinguished.
                                                             B
    Ram Adhar Singh v. Ramroop Singh and Others AIR
1968 SC 714: 1968 SCR 95; Chattar Singh and others. v.
Thakur Prasad Singh (1975) 4 SCC 457; Satyanarayan
Prasad Sah and others v. State of Bihar (1980) Supp SCC
474; Mst. Bibi Rahmani Khatoon and others v. Harkoo Gope     C
and others (1981) 3 sec 173; 1981 (3) SCR 553;

      Nathuni Ram & ors. v. Smt. Khira Devi & ors. 1981
BBCJ 413; Gorakh Natfl Dube v. Hari Nath Singh AIR 1973
SC 2451: 1974 (1) SCR 339; Mahendra Saree Emporium
                                                             0
(//) v. G. V. Srinivasa Murthy (2005) 1 SCC 481: 2004 (3)
Suppl. SCR 931; Bimal Kumar & Another v. Shakuntala Debi
& Others (2012) 3 SCC 548; Rachakonda Venkat Rao And
Others v. R. Satya Bai (D) by L.R. And Another AIR 2003 SC
3322: 2003 (3) Suppl. SCR 629; Muzaffar Husain v. Sharafat   E
Hussain AIR 1933 Oudh 562 Raghubir Sahu v. Ajodhya Sahu
AIR 1945 Pat 482 and Renu Devi v. Mahendra Singh and
others AIR 2003 SC 1608: 2003 (1) SCR 820 - referred to.

                    Case Law Reference:
 1968 SCR 95
                                                             F
                           referred to    Paras 15,20,
                                           21,23,28,29
(1975) 4 sec 457           referred to    Paras 15,23,
                                                28,29
1982 PLJR 392              not approved Paras 16,20,
                                                             G
                                         31,32,35
(1980) Supp sec 474        referred to    Paras 16,19,
                                          20,24,28,29-32
                                                             H
    738      SUPREME COURT REPORTS             [2012] 10 S.C.R.


A    1981 (3) SCR 553            referred to     Paras 16,19,
                                                 25, 29,31,32

     1982 BBCJ-1                 not approved Paras 19,31,32

     1981 BBCJ 413               referred to     Para 19
B    AIR 1981 Orissa 1 (F.B)     distinguished Paras 19,31,35

     1974 (1) SCR 339            referred to     Para 20

     2004 (3) Suppl. SCR 931 referred to         Para 29

c    (2012) 3 sec 548            referred to     Para 35

     2003 (3) Suppl. SCR 629 referred to         Para 35

     AIR 1933 Oudh 562           referred to     Para 35

     AIR 1945 Pat 482            referred to     Para 35
D
     2003 (1) SCR 820            referred to     Para 35

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    7234 of 2012.
E       From the Judgment & Order dated 02.05.2011 of the High
    Court of Judicature at Patna in LP.A.No. 947 of 2002.

         Nagendra Rai, Smarhar Singh, Shantanu Sagar, Abhishek
    Kr. Singh, Gopi Raman, T. Mahipal for the Appellants.
F
        S.B. Sanyal, Akhilesh Kr.Pandey, Sudhanshu Saran,
    Shalini Chandra, Swati Chandra, Akhilesh Kumar Pandey,
    Gopal Singh, Chandan Kumar, K.N. Rai for the Respondents.

          The Judgment of the Court was delivered by
G
          DIPAK MISRA, J. 1. Leave granted.

      2. Calling in question the legal acceptability of the order
  dated 2nd May, 2011 passed by the Division Bench of the High
H Court of Judicature at Patna in LPA No. 947 of 2002 whereby
        PARAS NATH RAI v. STATE OF BIHAR                     739
                [DIPAK MISRA, J.]
stamp of approval has been given to the order dated 9th              A
August, 2002 passed by the learned single Judge in CWJC
No. 1851 of 2000 wherein the learned single Judge affirmed
the order dated 17th December, 1999 passed by the Director
of Consolidation, Bihar, Patna in Revision Suit Nos. 151/75,
152175 and 624177 respectively, the present appeal by special        B
leave has been preferred.

      3. The facts which are essential to be stated for the
adjudication of the present appeal are that Partition suit No. 123
of 1963 was filed by Sesh Nath Rai, father of the appellant No.      C
1 and others against Kanta Rai and others. The claim in the
suit for partition pertained to the house and "Sahan" standing
over plot Nos. 593 and 595 under Khata No. 18. The learned
Munsif by judgment and decree dated 4th April, 1968
dismissed the suit observing that the plaintiffs' stand that one
Umraoti Devi was the daughter of Ananta Rai did not appear           D
to be corect. The learned Munsif further opined that there had
been a previous partition and the suit was defective for non-
joinder of parties. However, on the determined status, he
carved out the shares and concluded that the plaintiffs were not
entitled to any relief claimed and accordingly dismissed the suit.   E
     4. Being dissatisfied with the aforesaid judgment and
decree the appellants preferred Title Appeal Nos. 30/41 of
1968/71. It is worthy to note that the State Government had
issued notification No. 1168 dated 26th November, 1970 under         F
Section 3 of Bihar Consolidation of Holdings and Prevention
of Fragmentation Act, 1956 (for short 'the Act') bringing the
area urder consolidation scheme. Before the appellate court
a petition was filed under Section 4 (c) of the Act to the effect
that the appeal and the suit had abated by statutory operation       G
of law The appellate court failed to consider the application
and de.cided that the appeal could not be allowed to proceed
as one of the respondents had died during the pendency of the
appe2I and the application for substitution had .been rejected.
HowEVer, he allowed the appeal to be withdrawn observing as          H
fo~lovs:-
    740       SUPREME COURT REPORTS               (2012] 10 S.C.R.

A                "In the present appeal I find that the suit of the
          plaintiffs-appellants was dismissed by the learned lower
          Court and a decrE:!e was prepared accordingly. Again by
          the non-substitution of the heirs of Panna Devi the whole
          appeal has become incompetent and it has abated
s         against those respondents. As such I have no doubt that
          a vested right has come into existence in favour of the
          respondents before the petition for withdrawal was made.
          Relying on the authorities quoted above I find that the
          appellants cannot be allowed permission to file a fresh
c         suit. However, they are allowed to withdraw the appeal as
          prayed for."

       5. Grieved by the aforesaid order a Civil Revision No. 559
  of 1975 was filed whereby the learned single Judge returned
  a finding that the appellant had not made any prayer for
D withdrawal of the appeal and, therefore, the order passed by
  the lower appellate court was without jurisdiction and
  accordingly he remitted the matter to the lower appell:ate court
  for disposal of the appeal in accordance with law. It wc:1s further
  observed that any defect with regard to the competency of the
E appeal shall be decided by the appellate court at the time of
  hearing of the appeal itself.                                 ·

       6. After the remit the Title Appeal was revived and
  eventually on 26th November, 1980 the learned sub-Judge,
F Bhaubhua took note of the fact that the appellant was not
  represented and the respondent Nos. 1 and 2 had filed cross
  objection and had also filed an application for abatement of the
  appeal. The learned sub-Judge noted that the appellamt was
  not interested to contest the appeal and, accordingly, opined
G that the Title Appeal No. 30/68 and Title Appeal No. 123/63
  stood abated.
       7. At this juncture, it is necessary to refer t-0 the
  consolidation proceedings. The Consolidation Officer vide
  order dated 23rd March, 1974 arrived at the conclusion th~1t the
H applicant Umraoti Devi is the daughter of Anant Rai and heince,
        PARAS NATH RAI v. STATE OF BIHAR                     741
                [DIPAK MISRA, J.]
claim of the applicant therein deserved to be rejected. Being       A
of this view he directed entry in Khata No. 142 of recent
revisional survey of village Lakhanpatti Thana No. 407 which
was in the name of the Shesh Nath Rai, the respondent therein,
would remain in operation. The appeals preferred from the said
order did not render any success to the appellants.                 B
     8. Be it noted, there were two revision petitions, namely,
Revision Petition Nos. 151/1975 and 152/1975 which were
decided ex-parte. The revisional authority by order dated
1.09.1978 confirmed the orders passed by the Consolidation
Officer and the Deputy Director, Consolidation.                     C
     9. The two orders passed by the Revisional Authority were .
challenged before the High Court in CWJC Nos. 1638 and
1640 of 1981. The learned single Judge by order dated
15.11.1985 quashed the order impugned and directed the D
Additional Director to decide the revision petitions along with
other pending revisions if mentioned.
     10. After the remand, three revisions, namely, Revision Suit
Nos. 151/1975, 152/1975 and 624/1977 were disposed of vide
order dated 8.10.1987 by the Deputy Director, Consolidation         E
holding that Umraoti Devi was not the daughter of Dhyani Rai
and she had no right in the disputed land.
     11. The aforesaid common order was assailed in CWJC
No. 5610/1987 and the learned single Judge by order dated
                                                                    F
14.05.1998 expressed the view that the Deputy Director,
Consolidation could not have decided the revisions while in-
charge of Director and hence, the order had been passed by
an authority who did not have jurisdiction and, accordingly,
remanded the matter to be heard afresh and disposed of by           G
the revisional authority.
     12. After the remand, the Director, Consolidation
dismissed the three revisions by expressing the view that
Umraoti Devi was the daughter of Dhyani Rai and not of Anant
Rai. The said conclusion was arrived on the base of findings        H
    742       SUPREME COURT REPORTS              [2012) 10 S.C.R.

A recorded by the civil court. The said order came to be
  challenged in C.W.J.C. No. 1851 of 2000. The learned single
  Judge by order dated 9.08.2002 concurred with view of the
  appellate authority and the revisional authority and, accordingly,
  dismissed the writ petition.
B
       13. The decision of the learned single Judge was called
  in question in LPA No. 947 of 2002 and the Division Bench
  opined that as the appeal had abated for the non-prosecution
  by the appellants and as the consolidation authorities had taken
C note of the findings recorded by the civil court, the same had
  been rightly not been interfered with by the learned single
  Judge. Being of this view, the Division Bench dismissed the
  appeal. The said orders are the subject matters of assail in the
  present appeal.

D       14. We have heard Mr. Nagendra Rai, learned senior
    counsel for the appellants and Mr. S.B. Sanyal, learned senior
    counsel for the respondents.

        15. It is urged by Mr. Nagendra Rai that the High Court has
E fallen into error by concurring with the view expressed by the
  revisional authority and the forums below that Umraoti Devi was
  the daughter of Dhyani Rai as recorded by the civil court without
  taking note of the fact that an application for abatement was
  filed under Section 4 (c) of the Act to the effect that the title
F appeal had abated after issue of the notification under Section
  3 of the Act. It is urged by him that the High Court has
  committed a grave factual error by expressing the view that the
  appeal had abated because of the non-substitution of legal
  representative. It is canvassed by him that once appeal as well
  as the suit stood abated the findings recorded in the suit could
G not have formed the base of the decision. To buttress the said
  submission he has commended us to the decisions in Ram
    Adhar Singh v. Ramroop Singh and Others1; Chattar Singh
    and others. v. Thakur Prasad Singh 2•
    1.   AIR 1968 SC 714.
H 2. (1975) 4 sec 457.
          PARAS NATH RAI v. STATE OF BIHAR                   743
                  [DIPAK MISRA, J.]
     16. Mr. Sanyal, learned senior counsel appearing for           A
respondents, per contra, would contend that after the suit was
decreed and a preliminary decree had been passed, the same
would not come within the purview of the suit or appeal or
reference or revision and hence, would not abate. It is also
urged by him that the decree passed by the civil court could        B
not be nullified and therefore, the findings recorded in the suit
could be relied upon. To bolster his proponement, he has
placed reliance on Section 4 (c) of the Act and drawn inspiration
from Raja Mahto and Another v. Mangal Mahto and others3,
Satyanarayan Prasad Sah and others v. State of Bihar4 and           c
Mst. Bibi Rahmani Khatoon and others v. Harkoo Gope and
others 5•

     17. To appreciate the rivalised submission raised at the
bar, it is relevant to state here that during the pendency of the
appeal a notification under Section 3 of the Act had come into      D
existence. An application under Section 4 (c) was filed for
abatement of the appeal. It was misconstrued and treated as
an application for abatement of appeal due to non-substitution
of the legal representative of the respondents. It is also
necessitous to state here that at one point of time it was raised   E
by Mr. Sanyal that the notification was withdrawn but the same
was controverted by Mr. Rai that such withdrawal of notification
was challenged before the High Court and it was quashed. The
said position was accepted by Mr. Sanyal as a matter of fact.
This being the factual position we are required to address what     F
would be the effect on issue of notification under Section 3 of
the Act.

     18. Section 4 of the Act provides the consequences of
issuance of notification under sub-Section 1 of Section 3. One      G
significant consequence as set out in Section 4(c) reads as
under:--
3.   1982 PLJR 392.
4.   (1980) supp sec 474.
5.   (1981) 3 sec 173.                                              H
    744        SUPREME COURT REPORTS              [2012] 10 S.C.R.


A         4(c)- "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 or adjudication of any other right in regard to
          which proceedings can or ought to be taken under this Act,
B         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".
c        Be it noted, tht:re are as many as five provisos to Clause
    (c) of Section 4 of the Act. The proviso relevant for the present
    purpose reads as follows:-

          "Provided further that such abatement shall be without
D         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."
E
           19. A Division Bench of the Patna High Court in the case
    of Dr. Jagdish Prasad @ Jagdish Prasad Gupta v. Sardar
    Satya Narain Singh & Ors. 6, after referring to the decisions in
    Nathuni Ram & ors. v. Smt. Khira Devi & ors. 7, Srinibas Jena
F   & ors. v. Janardan Jena & ors. 8, Ram Adhar Singh (supra),
    Satyanarayan Prasad Sah (supra), Mst. Bibi Rahmani
    Khatoon (supra) came to hold as follows :-

           "In my opinion, the Supreme Court did not differ with the
           principle laid down 'in the former case of Satyanarayan
G          Prasad Sah. Hence we are of the opinion that under
           section 4 (c) a suit, an appeal a reference or a revision

    6.    1982 BBCJ-1
    7.    1981 BBCJ 413.
H 8. AIR 1981 Orissa 1 (F.B.)
            PARAS NATH RAI v. STATE OF BIHAR                       745
                    [DIPAK MISRA, J.]
        will abate and neither a preliminary decree nor a final           A
        decree will abate. Hence, we dismiss the petition filed by
        the appellant under section 4 (c) of the Act. Even if it is
        held that the appeal abates under section 4 (c) of the Act,
        the effect will be that it will not help the party inasmuch as
        even if the appeal abates, the final decree remains alive.        B
        The suit comes to an end when a preliminary decree is
        passed for the purpose of the Bihar Consolidation of
        Holdings and Prevention of Fragmentation Act."

       20. In Raja Mahto and Another (supra) the learned Judges
  referred to Section 3 of the Act, scanned the anatomy of Section        C
  4(c), distinguished the decisions in Ram Adhar Singh (supra),
  Gorakh Nath Dube v. Hari Nath Singh 9 and placing reliance
  on Satyanaryan Prasad Sah (supra), opined as follows :-

        "I am, therefore, of the opinion that under Section 4 (c) of      D
        the Act, the suit, appeal, reference or revision abates and
        not the decree or preliminary or final decree abates."

       21. In Ram Adhar Singh (supra) a three-Judge Bench of
  this Court, while dealing with a controversy that had arisen            E
  under amended Section 5 of Uttar Pradesh Consolidation of
  Holdings Act, 1953 (hereinafter referred to as '1953 Act') which
  provided that after publication of the notification under Section
  4 of the 1953 Act all proceedings for correction of the records
  and all suits for declaration of rights and interests over land, or
  for possession of land, or for partition, pending before any            F
  authority or court, whether of first instance, appeal, or reference
  or revision, shall stand abated.

      22. After scrutinizing the scheme of the Act this Court ruled
 thus:-                                                                   G

        "We have referred only to some of the salient provisions
        of the Act; and they will clearly show that the subject-matter
        of the dispute, between the parties in this litigation, are all
. 9.   AIR 1973 SC 2451.                                                  H
    746       SUPREME COURT REPORTS                  [2012] 10 S.C.R.


A         matters falling for adjudication, within the purview of the
          authorities, constituted under the Act. In fact, clause (b), of
          sub-section (2) of Section 5 of the Act, as it now stands,
          also lays down that the abatement of the proceedings,
          under clause (a), shall be without prejudice to the rights of
B         persons affected, to agitate the right or interest in dispute
          in the said suits or proceedings, before the appropriate
          consolidation authorities under the Act and in accordance
          with the provisions of the Act and the Rules made,
          thereunder."
c      23. In Chattar Singh (supra) while the appeal was pending
  before this Court a notification had been issued under Section
  4 of the 1953 Act. By virtue of the operation of Section 5(2)(a)
  of the said Act, there was a statutory abatement of the suit and
  other proceedings pending therefrom. The three-Judge Bench
D referred to the decision in Ram Adhar Singh (supra) and
  opined that even appeals pending before this Court would
  abate consequent upon statutory provision. This Court ruled that
  the suit and the appeal stood abated and it was open to the
  parties to work out their rights before the appropriate
E consolidation authorities.

         24. At this juncture, it is relevant to refer to the
    pronouncement of this Court in Satyanarayan Prasad Sah
    (supra). This Court, while upholding the constitutional validity of
F   Section 4(c) of the 1956 Act, held that the High Court should
    not have "nullified" the decree of the trial court but should have
    merely declared that the proceedings stood abated, which of
    course, means that the civil proceedings came to naught.

        25. In Mst. Bibi Rahmani Khatoon (supra) a title suit was
G filed before the learned Additional Subordinate Judge I, Gaya,
  for declaration of title and for recovery of possession of certain
  agricultural land. The trial court decreed the suit declaring that
  the plaintiffs were the owners of certain khatas and were entitled
  to recover possession of the same. On appeal being preferred
H the learned District Judge, Gaya, dismissed the appeal and
        PARAS NATH RAI v. STATE OF BIHAR                      747
                [DIPAK MISRA, J.]
affirmed the decree of the trial court. In Second Appeal the High    A
Court took note of the fact that one of the defendants had died
during pendency of the appeal before the District Court and his
legal representatives were neither impleaded nor any one
claiming under him came to be substituted in the appeal
pending in the District Court. During the pendency of the            B
Second Appeal before the High Court an affidavit was filed
stating that a notification under Section 3 of the 1956 Act, had
been issued and in view of the language employed in Section
4 of the said Act the suit and the appeals stood abated. The
High Court accepted the submission and disposed of the               c
appeal by stating that the proceedings stood abated and
resultantly the judgments and decrees of the courts below
deserved to be set aside. This Court referred to Section 4 as
amended in 1973 and thereafter referred to the material part
of the proviso to Clause (c) of Section 4 of the Act.                D

     26. A contention was raised that the High Court had erred
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
appellants before this Court on the ground that those
proceedings had stood abated. In that context, this Court            E
adverted to the scheme of consolidation and opined thus: -

    "9. When 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     F
    order to permit the authorities to pursue adjudication of
    rival claims to land unhampered by any proceedings in civil
    courts, a wholesome provision 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    G
    abate. This provision was made with a view to 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
                                                                     H
    748       SUPREME COURT REPORTS                 [2012] 10 S.C.R.


A         the course of consolidation of holdings. In order to avoid
          conflict consequent upon rival jurisdictions the legislature
          provided that the proceedings involving the claims to land
          put in consolidation should be exclusively examined l'.>y the
          authorities under the Consolidation Act and all rival
B         jurisdiction would be closed. Simultaneously it was
          necessary to deal with the pending proceedings and that
          is why the provision for abatement of such proceedings."

       27. It is worthy to note that this Court noticed the conceptual
  difference of abatement in civil law and in the scheme of the
C 1956 Act. and observed that if the abatement as conceptually
  understood in the Code of Civil Procedure is imported to
  Section 4 of the 1956 Act, it would cause irreparable harm and
  the party whose appeal is pending would lose the chance of
  convincing the appellate court which, if successful, would turn
D the tables against the other party in whose favour the judgment,
  decree or order would become final on abatement of the
  appeal. The Bench further proceeded to state that regard being
  had to the same, the legislature intended that not only the
  appeal or revision would abate but the judgment, order or
E decree against which the appeal is pending would also become
  non est as they would also abate ar.d that would leave
  consolidation authorities free to adjudicate the claims of title
  or other rights or interest in land involved in consolidation.

F      28. At this juncture, it is seemly to note that a reference
  was made to the decisions in Ram Adhar Singh (supra) and
  Chattar Singh (supra). After analyzing the ratio laid down
  therein, this court adverted to the pronouncement in
  Satyanarayan Prasad Sah (supra) and proceeded to state as
G follows: -

          "Both the aforementioned decisions were noticed in
          Satyanarayan Prasad Sah v. State of Bihar (supra). In that
          case upon the issue of a notification under Section 3 of
          the Act at a time when the matter was pending in the High
H         Court an order was made under Section 4(c) abating the
        PARAS NATH RAI v. STATE OF BIHAR                     749
                [DIPAK MISRA, J.]
    proceeding as also the suit from which the proceeding            A
    arose. Writ petitions were filed in this Court under Article
    32 of the Constitution questioning the constitutional validity
    of Section 4 of the Act as being violative of Articles 14 and
    19 of the Constitution. After repelling the challenge to the
    vires of Section 4, this Court affirming the decisions in        B
    Ram Adhar Singh (supra) and Chattar Singh (supra)
    cases, held that may be 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 proceeaing          c
    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 on the
    adjudication of claims by the parties under the Act."

                                           [Emphasis supplied]       D

    After so holding, the Bench ruled thus: -

     "Both on principle and precedent it is crystal clear that
    where a notification is issued bringing the land involved in     E
     a dispute in the civil proceeding under a scheme of
     consolidation, the proceedings pending in the civil court
     either in the trial Court, 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      F
    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 of the trial Court and the first
    appellate Court because the entire civil proceeding came         G
    to naught."

    At this juncture, we may hasten to clarify that we have
reproduced the aforesaid passages in extenso as this Court
has succinctly stated that not only there is abatement of appeal     H .
     750      SUPREME COURT REPORTS                    [2012] 10 S.C.R.


A pending before the High Court, but also of the proceedings
  before trial court and of the first appellate court because the
  entire civil proceeding comes to a naught as that is the effect
  of Section 4(c) which deals with the effect of the notification
  under Section 3(1) of the Act.
8
           29. At this juncture, we think it profitable to refer to a three-
     Judge Bench decision in Mahendra Saree Emporium (II) v.
     G. V. Srinivasa Murthy10 • The Court was dealing with the effect
     and impact of Sections 69 and 70 of the Karnataka Rent Act,
     1999 which had come into force with effect from 31.12.1999
C    after repeal of the Karnataka Rent Control Act, 1961. This Court
     addressed to the legislative scheme under Sections 69 and 70
     and the applicability of Clauses (b) and (c) of sub-section (2)
     of Section 70 of the 1999 Act to the proceedings pending
     before this Court in exercise of the jurisdiction conferred by
D    Article 136 of the Constitution. It was treated to be a plenary
     power and eventually held that in spite of old 1961 Act having
     been repealed by the new Act, i.e., 1999 Act, the appeal
     preferred by special leave under Article 136 of the Constitution
     does not abate and survives for adjudication on merits. It is
E    apposite to note that as regards the plea of abatement of the
     appeal certain decisions under the 1956 Act and 1953 Act
     were placed reliance upon. The Bench referred to the concept
     of statutory abatement and upon perusal of the decisions in
     Ram Adhar (supra), Chattar Singh (supra), Satyanarayan
·F   Prasad Sah (supra) and Mst. Bibi Rahmani Khatoon (supra)
     opined that the said authorities dealt with statutory abatement
     consequent upon a notification under the State consolidation
     of holding legislation having been issued. It was ruled that in
     the said decisions the provisions of the State legislation which
G    came up for consideration of the Court provided for the original
     case, wherefrom the subsequent proceedings had originated,
     itself to stand abated on the commencement of such legislation
     and/or on the issuance of the requisite notification thereunder,
     without regard to the stage at which the proceedings were
H 10. (2oosi 1 sec 481.
        PARAS NATH RAI v. STATE OF BIHAR                     751
                [DIPAK MISRA, J.]
pending. It was held that appeal was a continuation of the suit     A
and inasmuch as the local law made provision for an effective
alternative remedy to be pursued before an exclusive forum to
redeem the grievance raised before the court, the local law had
the effect of terminating and nullifying the initiation of the
proceedings itself and, therefore, nothing remained for the court   B
to adjudicate upon in the appeal which was rendered
infructuous.

      30. From the aforesaid enunciation of law it is crystal clear
 that once a notification has been published under Section 3 of C
the Act, every suit and proceeding in respect of declaration of
 rights or interest in any land lying in areas or for declaration or
 adjudication of any other rights in regard to which proceeding
can or ought to be taken under the Act pending before any court
or authority whether of the first instance or of appeal, reference
or revision, shall, on order being passed in that behalf by the D
court or authority before whom such suit or proceeding is
pending shall stand abated with a view to ensure the jurisdiction
of the authorities under the Consolidation Act remains
 unhampered and the said authorities are not obstructed by the
proceedings in civil courts and their decisions are not impeded E
by the decisions of the civil courts. It is also vivid that the
purpose of the scheme of consolidation is to avoid conflict of
jurisdiction in order to confer jurisdiction on the consolidation
authorities who are required to exclusively examine the rival
claims of the parties. Apart from that there is conceptual F
difference between statutory abatement and abatement under
the Code of Civil Procedure. On the basis of a statutory
abatement, the whole proceeding from its inception stands
abated because the local law has provided an effective
alternative remedy to be perused before an exclusive forum to G
remedy the grievance raised before the court. It has been
further pronounced by this Court that .nothing remains to be
adjudicated before the civil court and it is apt to note in the case
of Satyanarayan Prasad Sah (supra) this Court had held that
the High Court should not have nullified the decree of the trial H
    752      SUPREME COURT REPORTS                 [2012] 10 S.C.R.

A   court but should have declared that the proceedings stood
    abated which meant that civil proceedings came to a naught,
    that is to say, the proceedings from its commencement stood
    abated.

B      31. It is interesting to note that though the decision in Raja
  Mahto and Another (supra) referred to the decision in
  Satyanarayan Prasad Sah (supra) yet wrongly applied the ratio
  by giving an opinion that the second appeal pending before the
  court had abated but the preliminary decree passed in suits and
C both the appeals had not abated. In Dr. JagdishPrasad (supra)
  the learned Judge who authored the judgment in Raja Mahto
  and Another (supra) sitting in the Division Bench in a
  Miscellaneous Appeal which was an appeal under Order XLlll
  of the Code of Civil Procedure again opined that a suit, appeal,
  reference or revision would abate neither a preliminary decree
D nor a final decree would abate. Be it noted, in the said case
  the Division Bench expressed the view that this Court in Mst.
  Bibi Rahmani Khatoon (supra) had not adverted with the view
  expressed in Satyanaryan Prasad Sah (supra) and on that
  foundation reiterated that the suit comes to an end when a
E preliminary decree is passed for the purpose of 1956 Act. It is
  also stated therein neither a preliminary decree nor a final
  decree would abate under Section 4 (c). For the said purpose
  reliance was placed on a Full Bench decision of Orissa High
  Court in Srinibas Jena & Ors. (supra).
F
        32. At this stage, it is condign to clarify that the High Court
  of Patna in Dr. Jagdish Prasad (supra) and Raja Mahto and
  Another(supra) had read the judgment of this Court absolutely
  erroneously. It has been held by this Court that the entire civil
G proceeding from its commencement stands abated and it
  comes to a naught. In Satynaryan Prasad Sah (supra) this
  Court had found an error in the decision of the High Court in
  nullifying the decree. It was explained ;n Mst. Bibi Rahmani
  Khatoon's (supra) case that what is the impact when a scheme
  of a consolidation is undertaken. This Court had referred to the
H
        PARAS NATH RAI v. STATE OF BIHAR                     753
                [DIPAK MISRA, J.]
pronouncement in Satynaryan Prasad Sah (supra) and stated           A
both in principle and precedent it is clear that where a
notification is issued bringing the land involved in a dispute in
the civil proceeding under a scheme of consolidation, the
proceeding pending before the civil court either in trial court,
appeal or revision shall abate as a consequence ensuing upon        B
the issue of notification and the effect of abatement would be
that the civil proceeding as a whole come to· a naught. To
elaborate not only the judgment and decrees would become
extinct but the entire civil proceeding would come to a naught.

     33. Thus, the view expressed by the High Court in the
                                                                    c
 aforesaid judgments that appeal may abate but the decree
 would not abate is not correct, more so, when the preliminary
 decree is under challenge in appeal. In the case at hand,
judgment and decree passed by the trial court was assailed in
 the title appeal. Though a petition was filed under Section 4(c) D
 of the Act no order was passed thereon, yet the appeal was
 permitted to be withdrawn. Challenge being made in the civil
 revision the High Court had remanded the matter directing the
appeal to be restored to file with a further direction that the
 matter would be dealt with on merits including the competence E
of the court to hear the appeal. Despite the remit the trial court
did not take note of the petition filed by the appellant under
Section 4(c) of the Act, but observed that they are not
interested to contest the appeal and accordingly directed the
appeal stood abated because of non-substitution. This order F
shows total non application of mind and in a way paving the
path of travesty of justice. As is evincible the consolidation
proceedings had continued and at one stage the authorities
were relying on the findings of civil court and at some other
ignoring the same. Eventually, as is manifest, the matter G
travelled to the High Court in a writ petition. The learned single
Judge ruled that the consolidation authorities were justified in
relying on the findings of civil court.

    34. We may hasten to add that some evidence was                 H
    754      SUPREME COURT REPORTS                 [2012] 10 S.C.R.


A   adduced and some documents were filed before the
    consolidation authorities to substitute their respective claims as
    regards status and their respective shares but the whole issue,
    as is demonstrable, has turned on reliance on the findings
    recorded by the civil court.
B
        35. The question that emanates for consideration if the
  appeal which is a continuation of suit had abated whether
  findings recorded therein could have been relied upon. We
  have noted that in the cases of Raja Mahto and Another(supra)
  and Dr. Jagdish Prasad (supra) the High Court of Patna had
C taken a view that on issuance of notification under Section 3
  of the Act the suit or appeal would abate but neither the
  preliminary decree nor the final decree would abate. For the
  said purpose inspiration had been drawn from Srinibas Jena
  & Ors. (supra) a decision rendered by the Full Bench of the
D High Court of Orissa. In the Full Bench decision of the High
  Court of Orissa, the preliminary decree was allowed to attain
  finality and nothing remained to be adjudicated. There is a
  distinction between preliminary decree and the final decree.
  Recently in Bimal Kumar & Another v. Shakuntala Debi &
E Others 11 this Court after referring to the decisions in
  Rachakonda Venkat Rao And Others v. R. Satya Bai (D) by
  LR. And Another12, Muzaffar Husain v. Sharafat Hussain 13,
  Raghubir Sahu v. Ajodhya Sahu 14, Renu Devi v. Mahendra
  Singh and others15 , has ruled thus:-
F
        "A preliminary decree is one which declares the rights and
        liabilities of the parties leaving the actual result to be
        worked out in further proceedings. Then, as a result of the
        further inquiries conducted pursuant to the preliminary
        decree, the rights of the parties are finally determined and
G
    11. (2012) 3 sec 548.
    12. AIR 2003 SC 3322.
    13. AIR 1933 Oudh 562.
    14. AIR 1945 Pat 482.
H 15. AIR 2003 SC 1608.
        PARAS NATH RAI v. STATE OF BIHAR                     755
                [DIPAK MISRA, J.]
     a decree is passed in accordance with such                     A
     determination, which is the final decree. Thus,
     fundamentally, the distinction between preliminary and final
     decree is that: a preliminary decree merely declares the
     rights and shares of the parties and leaves room for some
     further inquiry to be held and conducted pursuant to the       B
     directions made in the preliminary decree which inquiry
     having been conducted and the rights of the parties finally
     determined a decree incorporating such determination
     needs to be drawn up which is the final decree."

      36. The Full Bench was dealing with an appeal directed
                                                                    c
 against the final decree for partition. The question before the
 Full Bench was whether under Section 4(4) of the Orissa
 Consolidation of Holdings and Prevention of Administration of
 Land Act, 1972 (for short 'the 1972 Act') a final decree stood
abated. The Full Bench referred to the notification issued under D
Section 3(1) of the 1972 Act, scanned the language employed
 in sub-section (4) of Section 4 and came to hold that a final
decree proceeding cannot be characterized as a suit or a
proceeding for right, title or interest in respect of any land. It
has been opined there that Section 4(4) does not include an E
appeal arising out of a final decree as the same would not
declare any right, title or interest of the parties but deal with
certain matters pertaining to what has already been declared.
Pendency of an appeal against the final decree cannot take
away the finality of the preliminary decree which has already F
declared the rights, title and interest of the parties. We may
repeat for clarity that in the said case, the preliminary decree
passed in the suit had become final as it was not challenged
by way of an appeal. Thus, the factual matrix was quite different.
Suffice it to say that in the present case the title appeal was G
pending against the preliminary decree and an application
under Section 4(c) had been preferred. It would have been
advisable on the part of the appellate court to record a finding
that the entire proceeding of the civil suit stood abated.
Unfortunately, the appellate court directed abatement because H
    756      SUPREME COURT REPORTS                 [2012] 10 S.C.R.


A of non-substitution of the legal heirs of one of the respondents.
  We are conscious that an order is to be passed on an
  application filed under Section 4 (c) of the Act, but we do not
  intend to relegate the matter to that stage as it is obvious that
  in the suit, right, title and interest and status were involved which
B do come within the scheme of consolidation. Hence, the suit
  as well as the appeal abated and resultantly the very
  commencement of the civil proceeding came to a naught and,
  therefore, findings recorded in the said proceeding became
  extinct. The learned Judge dealing with the writ petition as well
c  as the learned Judges deciding the intra-court appeal did not
  appreciate the lis in proper perspective and opined that the
   reliance on the findings recorded by the civil court by the
   revisional authority under the 1956 Act could not be faulted. The
   said conclusion is wholly erroneous and deserves to be
   overturned and we do so.
0
       37. Consequently, the appeal is allowed, the orders
  passed by the learned single Judge as well as of the Division
  Bench are set aside and the matter is remanded to the file of
  the learned single Judge to decide the matter on merits on the
E basis of the material brought before the Consolidation
  Authorities. We repeat at the cost of repetition that none of the
  findings recorded by the civil court shall be taken aid of. There
  shall be no order as to costs.

F B.B.B.                                             Appeal allowed.