AJIJ MIAN Vs. KEWAL AHIR

JUDGEMENT

(1.) This application is directed against the order dated 5th August, 1978 of the 3rd Additional District Judge, Arrah, by which he has rejected the contention of the appelb.nt before him that the appeal before him had abated in view of the provisions of Seciton 4 (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1955 (hereinafter referred to as 'the Act') and directed the parties to come ready for hearing of the appeal on the date fixed. In my opinion, the application must be allowed because the learned Additional District Judge should have held that the appeal of the suit out of which it arose had abated in view of the provisions of Section 4 (c) of the Act and by his wrong decision on the point he has assumed a jurisdiction to decide the appeal which he did not possess.

(2.) The relevant facts are these : The appeal before the Additional District Judge arose out of a suit for redemption which had been decreed by the trial court and the defendants 3rd party were the appellants before the learned Additional District Judge. The plaintiff-respondent had brought the suit for redemption of two mortgage deeds dated 1st July, 1945 and 15th June, 1951 both having been executed by Budhu Mian in favour of Devi Dayal Singh in respect of celain lands situate in village saidanpur in the district of Shahabad on the allegations that the mortgagee had sold the mortgaged lands along with other lands to him by a registered sale-deed dated 12th September, 1951 for a consideration of Rs. 2000/- and that he had tendered the mortgage amount at first to the original mortgagee Devi Dayal Singh, defendant 1st party and subsequently to the defendants 2nd party in whose favour by a registered deed dated 11th July, 1965 the original mortgagee had assigned the mortgagee, but both had refused to accept the same and, thereupon, he had deposited the mortgage money under section 73, T. P. Act and still the defendants 2nd party hud not delivered possession to him over the lands mortgaged which were in their possesion. The plaintiff prayed for an adjudication that he was entitled to a decree of redemption in respect of the suit lands and for recovery of possession therefore and mesne profits for the year 1967 and the period between the date of the institution of the suit and recovery of possession. The suit was contested by some of the defendants 3rd party who were the heirs of the mortgagor Budhu Mian. Their principal defence was that the sale deed in favour of the plaintiit' was a sham transaction executed with a view to save the properties from different creditors and, the plaintiff had, therefore, no right to redeem the mortgages. The plea of defendants 2nd party was substantially the same and they further denied that the plaintiff had even tendered the mortgage money.

(3.) It is not in dispute now that a notification under section 3 of the Act has been issued in respect of the area in which the suit lands lie and that consolidation operations are going oa in that area. That being so, in my opinion, the suit out of which the appeal arode had clearly abated in view of the provisions of Section 4(c) of the Act. According to Section 4(c), so far as it is relevant, "every suit.....in respect of declaration of rights or interest in any land lying in the area (to which the notification under section 3 relates) or for declaration or adjudication of any other right in regard to which proceeding can or ought to be taken under the Act, pending before any court or authority whether of first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated." If, therefore, the suit out of which the appeal arose was a suit in respect of the declaration of right or interest in land, there can be no question that the suit stood abated after an order to that effect is passed.