JAI PRAKASH PRASAD Vs. RAMESHWAR PRASAD

JUDGEMENT

(1.) Whether a defaulting litigant can be allowed to raise the plea of abatement under S.4(,c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 for the first time in second appeal despite a designed or at least a negligent failure to do so in the trial Court and in the first appellate Court, has come to be the threshold question herein.

(2.) The facts themselves are somewhat significantly revealing. Admittedly the suit was filed by the father of appellant 1 on 27th April, 1971. It sought a declaration of title with the consequential relief of the recovery of possession over the suit land with mense profits. It is the common and, indeed, the appellants' own case that a notification under S. 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the 'Act') was promulgated on 10th Sept. 1975 during the course of the trial itself. It calls for a pointed notice that it is not even remotely the case of the appellants that the plaintiff remained unaware of this notification. Nevertheless, no plea of any abatement was at all raised and the suit was pressed on merits and it was nearly two years after the said notification that on 30th Aug. 1977 the learned Munsif of Bihar-Sharif decreed the same holding entirely in favour of the plaintiff. Inevitably, the defendants appealed and the matter was heard by the learned Subordinate Judge. Nalanda. The appellate proceedings again continued for over three years, and it was only on 4th Oct., 1980 that the lower appellate Court allowed the appeal and set aside the judgment and decree of the Court below and dismissed the suit. It is common ground that not once during the said three years even a whisper of the question of abatement was raised on behalf of the plaintiff. However, when the judgment in first appeal went against him, a specious plea of abatement for the first time is sought to be raised in second appeal before the High Court. The core question, therefore, is whether such a plea can be permitted to be raised or sustained.

(3.) Mr. S.C. Ghose, the learned counsel for the respondents, has first rightly highlighted the issue of principle. It was pinpointed that the deceased father of appellant No. 1 was the plaintiff in the suit and was well aware of the notification during the trial itself. He sought and invited a judgment despite the notification. Not only that, he was able to secure a judgment in his favour. When the matter was carried by the defendants to the first appellate Court, he sat on the fence and invited the Court below to decide the appeal on merits. Now that the case has gone against him, it is on principle impermissible to permit the appellants to raise a question which their predecessor plaintiff could well have raised ten years ago at the stage of the trial of the suit itself. We are of the view that on principle the issue of abatement cannot be permitted to be raised in this context.