DEVENDRA PRASAD DUBEY Vs. MAHENDRA PRASAD DWIVEDI

JUDGEMENT

(1.) Leave granted.

(2.) This appeal is directed against the judgment and order dated 21-11-1996 passed by the High Court of Judicature at Patna, dismissing the revision filed by the appellant herein summarily. The Government of Bihar issued a notification under sub-section (1) of Section 3 of the Bihar Consolidation of holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as "the Act") declaring its intention to bring a certain specified area under the consolidation operations. The said notification was issued as far back as 26-11-1970. The said notification also included the area falling within the limits of Hajipur, which was to be brought under the consolidation operations. It is alleged by the appellant that the area falling within the limits of Hajipur included the plots of land situated in Village Purba, Thana No. 109, Anchal hajipur, District Vaishali, Village Kuari, Khurd Thana and Anchal Hajipur, district Vaishali, Thana No. 106, Village Ghospur, Izra Thana and Anchal hajipur, Thana No. 51, District Vaishali, Village Molana Chak, Thana No. 108, Anchal Hajipur, District Vaishali and Mauza Janjira Ismailpur, PS No. 32, Anchal Hajipur, District Vaishali. It is alleged by the appellant that during consolidation proceedings a dispute between the appellant and the respondents arose in respect of the abovementioned plots of land. It is also alleged by the appellant that he filed an objection before the Consolidation officer and the same was decided in his favour and since no appeal was filed by the respondents, it attained finality. While the consolidation proceedings in the village were in operation, the respondents herein filed a suit for partition before the Vth Sub-Judge, Vaishali, Hajipur. The said suit was originally numbered as Partition Suit No. 100 of 1994. It is alleged by the appellant that in the said suit the plots of land mentioned above are also the subject-matter of partition. While the partition suit was proceeding, the appellant herein, who was arrayed as the defendant in the suit, filed an application contending that the suit has abated in view of the notification issued under Section 3 of the Act. It was also contended that the dispute relating to the aforesaid plots of land has already been adjudicated upon in the consolidation proceeding and has attained finality and, therefore, cannot be readjudicated by the civil court in view of Section 37 of the Act. The said application of the appellant was rejected on the ground that the notification issued under Section 3 of the Act was not plotwise. Against the said order of learned Sub-Judge, the appellant filed a revision before the High Court which was dismissed by a non-speaking order. It is in this way the appellant is in appeal before us.

(3.) Learned counsel appearing for the appellant urged that since the proceeding under the Act has attained finality, it is, therefore, not open to the civil court to proceed with the partition suit. His further argument is that the suit has abated in view of the consolidation proceedings. Mr Mishra, who appears on behalf of the respondents disputed the contentions of the appellant's counsel. His argument is that the notification dated 26-11-1970 was partially cancelled by another notification dated 27-7-1998 and the result of such cancellation is that the area where the plots in dispute are situated has gone out of the consolidation proceeding and, therefore, it is open to the civil court to proceed with the suit. His further argument is that in view of Section 15 of the Act, there is no final abatement of the suit and in fact only the proceeding in the suit is to abate temporarily till the matter is pending before the Consolidation Courts.