RAJMUNI DEVI Vs. JOGENDRA RAUT ALIAS YOGENDRA YADAV

JUDGEMENT

(1.) THIS Miscellaneous Appeal is directed against the order passed by Shri P. N. Shukla, 2nd Additional District Judge, Siwan, in Misc. case no. 4 of 1989 (Title Appeal no. 14/89). The impugned order was passed on an application dated 4.10.89 preferred by Yogendra Yadav, one of the respondents before this Court, who was appellant in the appeal referred to above.

(2.) THE relevant facts are that in the aforesaid appeal there was an application filed by Yogendra Yadav earlier that the suit under appeal and the appeal both had abated because the subject matter of the suit and the appeal were the subject matter of Consolidation proceeding. The application was earlier rejected by the appellate court. However, there was a review petition by Yogendra Yadav on 4.10.89 and this was registered as miscellaneous case in which the impugned order has been passed. The Additional District Judge allowed the review petition and held that both the appeal and the suit had abated. The grounds taken in the review application were to the effect that in the earlier order certain papers which were already on record were not considered by the court and certain decisions were not referred to. The Additional Judge opined that, of course, the appellant before this Court (respondent of the first appeal) had not contended in the rejoinder to the abatement petition that the lands attached to the suit houses were not used for agricultural purposes. So, on this basis the court held that when the Consolidation officers had taken cognizance of the suit lands and it was not denied by the appellant before this Court that the suit lands were not agricultural lands, the suit and the appeal both had abated. The learned Judge also referred to certain decisions cited by the parties and held that these decisions referred to were well known, principles that when the consolidation proceeding is on the subject matter of suit or appeal is covered by the consolidation proceeding and the suit and the appeal both must abate.

(3.) IN the result, I think that the impugned order passed in the concerned miscellaneous case is not sustainable. This appeal is, accordingly, allowed and the impugned order is set aside. It is directed that the concerned appeal shall be disposed of after hearing both the parties on its own merit.