SUMANGAL KUER Vs. RAMPATI KUER

JUDGEMENT

(1.) This application has been filed by defendants 3 and 4 and it is directed against the order dated the 16th August 1960, by which the learned Subordinate Judge has refused to stay the hearing of the suit under the following circumstances. A title suit is pending before the learned Subordinate Judge, numbered as Title Suit No. 25 of 1957. There is no dispute between the parties that during the pendency of this title suit, proceedings are pending under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act XXII of 1956), which includes the properties in dispute also. Therefore, on the 2nd of August, 1960, the petitioners filed an application before the learned trial Judge, praying that the suit be stayed until the proceeding of consolidation of holdings was disposed of. Having heard the parties, the learned Judge has rejected this petition, on the ground that Section 4 of the Act does not bar this legal proceeding, in view of the proviso to that section. It has been held that Section 4 applied to a case where possession of land involved in the litigation is to be transferred from one person to another, and that in a partition suit, there will be no transfer of possession as such. Thus, defendants 3 and 4 have come up to this Court.

(2.) Learned Counsel for the petitioners has submitted that a very narrow interpretation has been put upon the proviso to Section 4 of the Act, and if a partition suit is not stayed, the purpose of the Act will be nullified with respect to the lands involved in the litigation. Secondly, it is urged that, upon the contentions raised by the parties in this litigation, actual transfer of possession is bound to take place, if the plaintiffs' suit succeeds, This application is opposed by opposite party No. 4, Srimati Kapurdai Kuer, a defendant in the suit It is contended that a suit for partition cannot be stayed under Section 4 of the Act, in view of the proviso to that section. Reliance is placed on the interpretation of Section 4, in the case of Mt. Bibi Rabeya Khatoon v. Rambhsrosa Singh, 1963 BUR 190. Learned Counsel for the opposite party has also relied upon the case of Jatru Pahan v. Mahatma Ambikajit Prasad, (S) AIR 1957 Pat 570, for his contention that a partition does net amount to a transfer.

(3.) Having heard learned Counsel for the parties, and having considered the decisions relied upon by learned counsel for the opposite party, it appears to me that a case has been made out by the petitioners, for stay of the suit until the scheme of consolidation comes into operation under Section 14 of the Act. The decision reported in 1963 BLJR 190 is clearly distinguishable in that case, the suit was for a declaration of title and for recovery of possession. It was held that such a suit did not involve transfer of land from one person to another within the meaning of Section 4 of Act XXII of 1956. I will indicate presently that the words used in the proviso to Section 4 must include a case of partition, in view of other provisions of the Act. In that view of the matter, the decision reported in (S) AIR 1957 Pat 570 cannot be of assistance in this case, where an interpretation of Act XXII of 1956 has arisen. The proviso to Section 4 of the Act reads thus:--