RAMANAND SINGH Vs. BIDAYAPATI DEVI

JUDGEMENT

(1.) This appeal by the defendants in a suit for partition was filed in this Court on 26 -2 -1975. Its records suffered under the floods of August, 1975 and after re -constructing the records, it could be heard under Order 41 Rule 11 of the Code of Civil Procedure only on 10 -11 -1980. L.M. Sharma, J. while admitting the appeal noticed as many as four questions of law, but all relating to the merit of the case. The appellants had, however, filed application under Sec. 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act No. XXII of 1956) (hereinafter to be referred to as the Act). A question of law directly arising in the appeal on the basis of the said petition, however, was not formulated at the time of admission of the appeal. Later, however, when this application was placed for orders before L.M. Sharma, J. in view of the fact that there has been a counter affidavit filed by the plaintiffs -respondents it was ordered to be taken up at the time of final hearing of the appeal. Learned counsel for the appellants has pressed his application under Sec. 4(c) of the Act at the first instance as in the event of his succeeding, the suit, the appeal in the court below as well as the appeal in this Court shall stand abated. No further investigation of the questions involved in the appeal, therefore, shall be necessary.

(2.) Sec. 4(c) of the Act runs as extracted below: - -

(3.) Title Partition Suit No. 18 of 1967 was filed in the year 1967. It was disposed of by a judgment and decree dated 30 -9 -1972. Respondent No. 1 who is plaintiff No. 2 in the original suit, filed Title Appeal No. 179 of 1972 on 4.12.1972 which was finally disposed of by the learned Additional District Judge 3rd Court, Arrah, on 18 -1 -1975. During the pendency of the appeal before him, however, a notification under Sec. 3(1) of the Act was published on 10 -12 -1972. No application of abatement of the appeal in the court below was filed by either party. After the disposal of the appeal, the appellants filed this appeal on 26 -2 -1975 before this Court. For all these years, only because the parties did not take any initiative the question as to the abatement remained pending. Today, however, is the day when this has to be heard and decided.