GULZARIA Vs. LAL MOHAR PANDEY

JUDGEMENT

(1.) This revision by the defendants is directed against the order passed by the Additional District Judge, Arrah, dated the 24th November, 1976 passed in title appeal no. 7 of 1974 holding that the appeal has not abated and thereby rejecting the petition filed under section 4 (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act 22 of 1956) (hereinafter to be called as 'the Act').

(2.) The suit was filed by the opposite-party for declaration that the deed of gift dated 13.2.1966 alleged to have been executed by defendant no. 1 in favour of defendant no. 2 is null and void, illegal and not binding upon the plaintiffs and that it did not affect their title in the disputed land. It is not necessary to give in detail the plaintiffs' case as the short point involved for decision in this revision is as to whether the court below was justified in rejecting the application filed under section 4 (c) of the Act. Suffice it to say that the plaintiffs brought a suit on the allegation that the defendant first party (defendant no. 1) was entitled only to maintenance as her husband Suraj Nath Pandey had predeceased his father Satya Narain Pandey before 1937. It is further said that defendant no. 1 thus got maintenance who never had any share in the property nor entered into possession of any property of the aforesaid Satya Narain Pandey which ultimately came in the hands of the plaintiffs who were in possession and occupation of all those properties. It has further been stated that the properties in Schedule 1 of the plaint are the disputed properties and the aforesaid entire properties are ancestral properties inherited by the plaintiffs who are coming in possession and have got every right ana title in those properties and the defendant first party has got no connecti on or concern within the said properties nor did the defendant first party ever got any right title and possession therein. It has been further averred in the plaint that only about a month ago the plaintiffs came to know that one Birkua Pandey and others by persuading, instigating and winning over defendant first party got a deed of gift dated 13.2.1955 manufactured in respect of the disputed lands in favour of defendant seond party by wrongly describing her as the daughter of defendant first party. The plaintiffs, therefore, filed the aforesaid suit for the relief mentioned above.

(3.) The suit was contested before the trial court which was dismissed on merits. Thereafter the plaintiffs preferred an appeal before the District Judge, Arrah, which was numbered as title appeal no. 7 of 1974 and was pending before the Additional District Judge, Arrah. It appears from the record of the lower appellate court that the aforesaid title appeal was filed on 3.1.1974 against the judgment and decree dated 30.11.1973. During the pendency of this appeal defendant-respondents filed an application under section 4 (c) of the Act alleging that the notification under section 3 of the Act has been published and the consolidation proceeding with respect to the property involved in the appeal is going on and as such the appeal has abated. The facts that the notification under section 3 of the Act has been published for the area in which the properties described in Schedule 1 of the plaint are situate and that the consolidation proceeding is going on are not disputed. The lower appellate court after hearing the parties held that the relief prayed for in the suit could not be entertained under the Act nor can it be decided by the Consolidation Officer. As such it held that the appeal has not abated. Hence the present revision application.