BIBI SALIMA KHATOON Vs. ABDUL GAFOOR MIAN

JUDGEMENT

(1.) THE plaintiff is the petitioner in this civil revision application which arises out of an order dated 6th July, 1990, passed by the learned Sub -ordinate Judge, Bettiah, in Title Partition Suit No. 70 of 1984 by which the court while deciding the issues framed in the suit has held that the title suit abates in terms of Section 4 (1) (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the 'Act'). When this civil revision application was taken up for hearing on 4.11.96 a preliminary objection was raised by Mr. Dwivedi learned counsel for the appellate party, to the effect that this civil revision application is not maintainable and according to the learned counsel, since the suit itself has been decided on the evidence led by the parties the judgment is the decree within the meaning of Section 2 (2) C.P.C. and, as such, appeal will lie and not civil revision and in order to find out some decisions in support of his contention learned counsel took time and, accordingly, this case was adjourned. Today when the case was taken up for hearing Mr. Dwivedi raised the same preliminary objection on the basis of the decision, in the case of Gajadhar Bhagat & ors. Vs. Moti Chand Bhagat, reported in AIR 1941. Patna 188, Nand Kumar Sinha Vs. Rai Bahadur Pashupati Ghosh and ors., reported in AIR 1941 Patna 385, Ram Bihari Bhagat & ors. Vs. Munni Lal Singh & ors reported in 1984 PLJR 21 and in the case of M.L. Manjapna & ors. Vs. Kalyani Pujarthy & Ors., reported in AIR 1971 Mysore 350. Mr. Dwivedi submits that the trial court has taken into consideration the pleadings of the parties and has framed several issues on the basis of such pleadings and proceed with the suit in terme of Order 47 Rule 1 and 3. C.PC. The parties have led evidence on all the issues involved in the suit but the learned trial court while deciding issue no. 4 has held that the suit is non maintainable in view of Section 4 (1)(c) of the Act. In the decision reported in 1941 Patna (supra) it has been held that the form of order has to be seen irrespective of the fact whether the decree has been prepared or not. According to Mr. Dwivedi allowing the suit to abate on the basis of the evidence led by the parties is a decree within the meaning of Section 2 (2) C.P.C. In the Patna decision it has been held that striking out of the name of some defendants against whom the suit is not maintainable is the decree within the meaning of the Code of Civil Procedure and, accordingly, held that appeal will lie. Similarly he has relied upon 1984 PLJR 21 (supra) for the proposition that in such circumstances the appeal will lie and not the civil revision.

(2.) MR . Mathura Nath Roy, learned counsel for the petitioner, however, submits that by the impugned order the trial court has not finally decided the rights of the parties and, as such, the order is revisable and no appeal will lie. In support of his contention he has relied upon a decision in the case of Ravneshwar Thakur & ors. vs. Neeraj Kumar Thakur & ors. reported in 1996 (1) PIJR 494. The ratio of the decision will not help Mr. Roy, inasmuch as, the fact of that case is entirely different. Against the judgment as the trial court the appeal was filed before the appellate court which was barred by limitation. The petition was filed for condonation of delay but the appellate court held that the appeal is barred by limitation.

(3.) I have heard the learned counsel for the parties and after having gone through the order under revision, I am of the view that the order passed by the trial court is appellable one and no revision will lie. In that view of the matter, this revision application is dismissed as not maintainable. The petitioner, if so advised, may file an appeal against the Judgment and decree passed by the trial court. Since the petitioner was prosecuting his remedy before this court by filing civil revision application the appellate court will take a lenient and sympathetic view while considering the question of limitation in filing the appeal, if any.