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          Reportable  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     No.     7234               2012   (Arising out of SLP (C) No.  24463  of 2011)

Paras Nath Rai and others       ….. Appellants

Versus

State of Bihar and Ors.     … Respondents  

J     U     D     G     M     E     N     T   

Dipak      Misra,     J.   

Leave granted.

2. Calling in question the legal acceptability of the order  

dated 2nd May, 2011 passed by the Division Bench of the High  

Court of Judicature at Patna in LPA No. 947 of 2002 whereby  

stamp of approval has been given to the order dated 9th

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August, 2002 passed by the learned single Judge in CWJC No.  

1851 of 2000 wherein the learned single Judge affirmed the  

order dated 17th December, 1999 passed by the Director of  

Consolidation, Bihar, Patna in Revision Suit Nos. 151/75,  

152/75 and 624/77 respectively, the present appeal by special  

leave has been preferred.  

3. The facts which are essential to be stated for the  

adjudication of the present appeal are that Partition suit No.  

123 of 1963 was filed by Sesh Nath Rai, father of the appellant  

No. 1 and others against Kanta Rai and others.  The claim in  

the suit for partition pertained to the house and “Sahan”  

standing over plot Nos. 593 and 595 under Khata No. 18.  The  

learned Munsif by judgment and decree dated 4th April, 1968  

dismissed the suit observing that the plaintiffs’ stand that one  

Umraoti Devi was the daughter of Ananta Rai did not appear  

to be correct.  The learned Munsif further opined that there  

had been a previous partition and the suit was defective for  

non-joinder of parties.  However, on the determined status, he  

carved out the shares and concluded that the plaintiffs were

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not entitled to any relief claimed and accordingly dismissed  

the suit.

4. Being dissatisfied with the aforesaid judgment and decree  

the appellants preferred Title Appeal Nos. 30/41 of 1968/71.  

It is worthy to note that the State Government had issued  

notification No. 1168 dated 26th November, 1970 under  

Section 3 of Bihar Consolidation of Holdings and Prevention of  

Fragmentation Act, 1956 (for short ‘the Act’) bringing the area  

under consolidation scheme.  Before the appellate court a  

petition was filed under Section 4 (c) of the Act to the effect  

that the appeal and the suit had abated by statutory operation  

of law.  The appellate court failed to consider the application  

and decided that the appeal could not be allowed to proceed as  

one of the respondents had died during the pendency of the  

appeal and the application for substitution had been rejected.  

However, he allowed the appeal to be withdrawn observing as  

follows:-  

“In the present appeal I find that the suit  of the plaintiffs-appellants was dismissed by  the learned lower Court and a decree was

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prepared accordingly.  Again by the non- substitution of the heirs of Panna Devi the  whole appeal has become incompetent and it  has abated against those respondents.  As  such I have no doubt that a vested right has  come into existence in favour of the  respondents before the petition for withdrawal  was made.  Relying on the authorities quoted  above I find that the appellants cannot be  allowed permission to file a fresh suit.  However, they are allowed to withdraw the  appeal as prayed for.”

5. Grieved by the aforesaid order a Civil Revision No. 559 of  

1975 was filed whereby the learned single Judge returned a  

finding that the appellant had not made any prayer for  

withdrawal of the appeal and, therefore, the order passed by  

the lower appellate court was without jurisdiction and  

accordingly he remitted the matter to the lower appellate court  

for disposal of the appeal in accordance with law.  It was  

further observed that any defect with regard to the  

competency of the appeal shall be decided by the appellate  

court at the time of hearing of the appeal itself.   

6. After the remit the Title Appeal was revived and  

eventually on 26th November, 1980 the learned sub-Judge,  

Bhaubhua took note of the fact that the appellant was not

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represented and the respondent Nos. 1 and 2 had filed cross  

objection and had also filed an application for abatement of  

the appeal.  The learned sub-Judge noted that the appellant  

was not interested to contest the appeal and, accordingly,  

opined that the Title Appeal No. 30/68 and Title Appeal No.  

123/63 stood abated.   

7. At this juncture, it is necessary to refer to the  

consolidation proceedings.  The Consolidation Officer vide  

order dated 23rd March, 1974 arrived at the conclusion that  

the applicant Umraoti Devi is the daughter of Anant Rai and  

hence, claim of the applicant therein deserved to be rejected.  

Being of this view he directed entry in Khata No. 142 of recent  

revisional survey of village Lakhanpatti Thana No. 407 which  

was in the name of the Shesh Nath Rai, the respondent  

therein, would remain in operation.  The appeals preferred  

from the said order did not render any success to the  

appellants.

8.   Be it noted, there were two revision petitions, namely,  

Revision Petition Nos. 151/1975 and 152/1975 which were

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decided ex-parte. The revisional authority by order dated  

1.09.1978 confirmed the orders passed by the Consolidation  

Officer and the Deputy Director, Consolidation.   

9. The two orders passed by the Revisional Authority were  

challenged before the High Court in CWJC Nos. 1638 and  

1640 of 1981.  The learned single Judge by order dated  

15.11.1985 quashed the order impugned and directed the  

Additional Director to decide the revision petitions along with  

other pending revisions if mentioned.

10. After the remand, three revisions, namely, Revision Suit  

Nos. 151/1975, 152/1975 and 624/1977 were disposed of  

vide order dated 8.10.1987 by the Deputy Director,  

Consolidation holding that Umraoti Devi was not the daughter  

of Dhyani Rai and she had no right in the disputed land.   

11. The aforesaid common order was assailed in CWJC No.  

5610/1987 and the learned single Judge by order dated  

14.05.1998 expressed the view that the Deputy Director,  

Consolidation could not have decided the revisions while in-

charge of Director and hence, the order had been passed by an

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authority who did not have jurisdiction and, accordingly,  

remanded the matter to be heard afresh and disposed of by  

the revisional authority.   

12.   After the remand, the Director, Consolidation dismissed  

the three revisions by expressing the view that Umraoti Devi  

was the daughter of Dhyani Rai and not of Anant Rai.  The  

said conclusion was arrived on the base of findings recorded  

by the civil court.  The said order came to be challenged in  

C.W.J.C. No. 1851 of 2000.  The learned single Judge by order  

dated 9.08.2002 concurred with view of the appellate  

authority and the revisional authority and, accordingly,  

dismissed the writ petition.    

13.    The decision of the learned single Judge was called in  

question in LPA No. 947 of 2002 and the Division Bench  

opined that as the appeal had abated for the non-prosecution  

by the appellants and as the consolidation authorities had  

taken note of the findings recorded by the civil court, the same  

had been rightly not been interfered with by the learned single  

Judge.  Being of this view, the Division Bench dismissed the

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appeal.  The said orders are the subject matters of assail in  

the present appeal.  

14. We have heard Mr. Nagendra Rai, learned senior counsel  

for the appellants and Mr. S.B. Sanyal, learned senior counsel  

for the respondents.   

15. It is urged by Mr. Nagendra Rai that the High Court has  

fallen into error by concurring with the view expressed by the  

revisional authority and the forums below that Umraoti Devi  

was the daughter of Dhyani Rai as recorded by the civil court  

without taking note of the fact that an application for  

abatement was filed under Section 4 (c) of the Act to the effect  

that the title appeal had abated after issue of the notification  

under Section 3 of the Act.  It is urged by him that the High  

Court has committed a grave factual error by expressing the  

view that the appeal had abated because of the non-

substitution of legal representative.   It is canvassed by him  

that once appeal as well as the suit stood abated the findings  

recorded in the suit could not have formed the base of the  

decision.  To buttress the said submission he has commended

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us to the decisions in Ram Adhar Singh v. Ramroop Singh  

and Others1; Chattar Singh and others. v. Thakur Prasad  

Singh2.   

16. Mr. Sanyal, learned senior counsel appearing for  

respondents, per contra, would contend that after the suit was  

decreed and a preliminary decree had been passed, the same  

would not come within the purview of the suit or appeal or  

reference or revision and hence, would  not abate.  It is also  

urged by him that the decree passed by the civil court could  

not be nullified and therefore, the findings recorded in the suit  

could be relied upon.  To bolster his proponement, he has  

placed reliance on Section 4 (c) of the Act and drawn  

inspiration from Raja Mahto and Another v. Mangal Mahto  

and others3, Satyanarayan Prasad Sah and others v.  

State of Bihar4 and Mst. Bibi Rahmani Khatoon and  

others v. Harkoo Gope and others5.   

1  AIR 1968 SC 714 2 (1975) 4 SCC 457 3 1982 PLJR 392 4 (1980) Supp SCC 474 5 (1981) 3 SCC 173

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17. To appreciate the rivalised submission raised at the bar,  

it is relevant to state here that during the pendency of the  

appeal a notification under Section 3 of the Act had come into  

existence.  An application under Section 4 (c) was filed for  

abatement of the appeal. It was misconstrued and treated as  

an application for abatement of appeal due to non-

substitution of the legal representative of the respondents.  It  

is also necessitous to state here that at one point of time it  

was raised by Mr. Sanyal that the notification was withdrawn  

but the same was controverted by Mr. Rai that such  

withdrawal of notification was challenged before the High  

Court and it was quashed.  The said position was accepted by  

Mr. Sanyal as a matter of fact.  This being the factual position  

we are required to address what would be the effect on issue of  

notification under Section 3 of the Act.  

18. Section 4 of the Act provides the consequences of  

issuance of notification under sub-Section 1 of Section 3.  One  

significant consequence as set out in Section 4(c) reads as  

under:-  

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4(c)- “Every proceeding for the correction of  records and every suit and proceedings in  respect of declaration of rights or interest in  any land lying in the area or for declaration or  adjudication of any other right in regard to  which proceedings can or ought to be taken  under this Act, pending before any court or  authority whether of the 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”.   

Be it noted, there are as many as five provisos to Clause (c) of  

Section 4 of the Act.  The proviso relevant for the present  

purpose reads as follows:-

“Provided further that such abatement shall be  without prejudice to the rights of the persons  affected to agitate the right or interest in  dispute in the said suits or proceedings before  the appropriate consolidation authorities  under and in accordance with the provisions of  this Act and the rules made thereunder.”

19.  A Division Bench of the Patna High Court in the case of  

Dr. Jagdish Prasad @ Jagdish Prasad Gupta v. Sardar  

Satya Narain Singh & Ors.6, after referring to the decisions  

in Nathuni Ram & ors. v. Smt. Khira Devi & ors.7,  

Srinibas Jena & ors. v. Janardan Jena & ors.8, Ram  

6  1982 BBCJ-1 7 1981 BBCJ 413 8 AIR 1981 Orissa 1 (F.B.)

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Adhar Singh (supra), Satyanarayan Prasad Sah (supra),  

Mst. Bibi Rahmani Khatoon (supra) came to hold as follows  

:-  

“In my opinion, the Supreme Court did not  differ with the principle laid down in the  former case of Satyanarayan Prasad Sah.  Hence we are of the opinion that under section  4 (c) a suit, an appeal a reference or a revision  will abate and neither a preliminary decree nor  a final decree will abate.  Hence, we dismiss  the petition filed by the appellant under  section 4 (c) of the Act.  Even if it is held that  the appeal abates under section 4 (c) of the  Act, the effect will be that it will not help the  party inasmuch as even if the appeal abates,  the final decree remains alive.  The suit comes  to an end when a preliminary decree is passed  for the purpose of the Bihar Consolidation of  Holdings and Prevention of Fragmentation  Act.”   

20. In Raja Mahto and Another (supra) the learned Judges  

referred to Section 3 of the Act, scanned the anatomy of  

Section 4(c), distinguished the decisions in Ram Adhar Singh  

(supra), Gorakh Nath Dube v. Hari Nath Singh9  and placing  

reliance on Satyanaryan Prasad Sah (supra), opined as  

follows :-  

9 AIR 1973 SC 2451

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“I am, therefore, of the opinion that under  Section 4 (c) of the Act, the suit, appeal,  reference or revision abates and not the decree  or preliminary or final decree abates.”

21. In Ram Adhar Singh (supra) a three-Judge Bench of  

this Court, while dealing with a controversy that had arisen  

under amended Section 5 of Uttar Pradesh Consolidation of  

Holdings Act, 1953 (hereinafter referred to as ‘1953 Act’) which  

provided that after publication of the notification under  

Section 4 of the 1953 Act all proceedings for correction of the  

records and all suits for declaration of rights and interests  

over land, or for possession of land, or for partition, pending  

before any authority or court, whether of first instance,  

appeal, or reference or revision, shall stand abated.   

22. After scrutinizing the scheme of the Act this Court ruled  

thus:-  

“We have referred only to some of the salient  provisions of the Act; and they will clearly  show that the subject-matter of the dispute,  between the parties in this litigation, are all  matters falling for adjudication, within the  purview of the authorities, constituted under  the Act. In fact, clause (b), of sub-section (2) of  Section 5 of the Act, as it now stands, also lays  down that the abatement of the proceedings,

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under clause (a), shall be without prejudice to  the rights of persons affected, to agitate the  right or interest in dispute in the said suits or  proceedings, before the appropriate  consolidation authorities under the Act and in  accordance with the provisions of the Act and  the Rules made, thereunder.”

23. In Chattar Singh (supra) while the appeal was pending  

before this Court a notification had been issued under Section  

4 of the 1953 Act.  By virtue of the operation of Section 5(2)(a)  

of the said Act, there was a statutory abatement of the suit  

and other proceedings pending therefrom.  The three-Judge  

Bench referred to the decision in Ram Adhar Singh (supra)  

and opined that even appeals pending before this Court would  

abate consequent upon statutory provision.  This Court ruled  

that the suit and the appeal stood abated and it was open to  

the parties to work out their rights before the appropriate  

consolidation authorities.

24. At this juncture, it is relevant to refer to the  

pronouncement of this Court in Satyanarayan Prasad Sah  

(supra).  This Court, while upholding the constitutional  

validity of Section 4(c) of the 1956 Act, held that the High

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Court should not have “nullified” the decree of the trial court  

but should have merely declared that the proceedings stood  

abated, which of course, means that the civil proceedings  

came to naught.

25. In Mst. Bibi Rahmani Khatoon (supra) a title suit was  

filed before the learned Additional Subordinate Judge I, Gaya,  

for declaration of title and for recovery of possession of certain  

agricultural land.  The trial court decreed the suit declaring  

that the plaintiffs were the owners of certain khatas and were  

entitled to recover possession of the same.  On appeal being  

preferred the learned District Judge, Gaya, dismissed the  

appeal and affirmed the decree of the trial court.  In Second  

Appeal the High Court took note of the fact that one of the  

defendants had died during pendency of the appeal before the  

District Court and his legal representatives were neither  

impleaded nor any one claiming under him came to be  

substituted in the appeal pending in the District Court.  

During the pendency of the Second Appeal before the High  

Court an affidavit was filed stating that a notification under

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Section 3 of the 1956 Act, had been issued and in view of the  

language employed in Section 4 of the said Act the suit and  

the appeals stood abated.  The High Court accepted the  

submission and disposed of the appeal by stating that the  

proceedings stood abated and resultantly the judgments and  

decrees of the courts below deserved to be set aside.  This  

Court referred to Section 4 as amended in 1973 and thereafter  

referred to the material part of the proviso to Clause (c) of  

Section 4 of the Act.

26. A contention was raised that the High Court had erred in  

setting aside the judgments and decrees of the trial court as  

well as of the first appellate court which were in favour of the  

appellants before this Court on the ground that those  

proceedings had stood abated.  In that context, this Court  

adverted to the scheme of consolidation and opined thus: -

“9. When a scheme of consolidation is  undertaken, the Act provides for adjudication  of various claims to land involved in  consolidation by the authorities set up under  the Act. In order to permit the authorities to  pursue adjudication of rival claims to land  unhampered by any proceedings in civil

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courts, a wholesome provision was made that  the pending proceedings involving claims to  land in the hierarchy of civil courts, may be in  the trial court, appeal or revision, should  abate. This provision was made with a view to  ensuring unhampered adjudication of claims  to land before the authorities under the  Consolidation Act without being obstructed by  proceedings in civil courts or without being  hampered or impeded by decisions of the civil  courts in the course of consolidation of  holdings. In order to avoid conflict consequent  upon rival jurisdictions the legislature  provided that the proceedings involving the  claims to land put in consolidation should be  exclusively examined by the authorities under  the Consolidation Act and all rival jurisdiction  would be closed. Simultaneously it was  necessary to deal with the pending proceedings  and that is why the provision for abatement of  such proceedings.”

27. It is worthy to note that this Court noticed the  

conceptual difference of abatement in civil law and in the  

scheme of the 1956 Act, and observed that if the abatement as  

conceptually understood in the Code of Civil Procedure is  

imported to Section 4 of the 1956 Act, it would cause  

irreparable harm and the party whose appeal is pending would  

lose the chance of convincing the appellate court which, if  

successful, would turn the tables against the other party in

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whose favour the judgment, decree or order would become  

final on abatement of the appeal.  The Bench further  

proceeded to state that regard being had to the same, the  

legislature intended that not only the appeal or revision would  

abate but the judgment, order or decree against which the  

appeal is pending would also become non est as they would  

also abate and that would leave consolidation authorities free  

to adjudicate the claims of title or other rights or interest in  

land involved in consolidation.   

28. At this juncture, it is seemly to note that a reference was  

made to the decisions in Ram Adhar Singh (supra) and  

Chattar Singh (supra).  After analyzing the ratio laid down  

therein, this court adverted to the pronouncement in  

Satyanarayan Prasad Sah (supra) and proceeded to state as  

follows: -

“Both the aforementioned decisions were  noticed in Satyanarayan Prasad Sah v. State  of Bihar (supra). In that case upon the issue of  a notification under Section 3 of the Act at a  time when the matter was pending in the High  Court an order was made under Section 4(c)  abating the proceeding as also the suit from  which the proceeding arose. Writ petitions

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were filed in this Court under Article 32 of the  Constitution questioning the constitutional  validity of Section 4 of the Act as being  violative of Articles 14 and 19 of the  Constitution. After repelling the challenge to  the vires of Section 4, this Court affirming the  decisions in Ram Adhar Singh (supra) and  Chattar Singh (supra) cases, held that may be  that     the     High     Court     should     not     have     nullified    the     decree     of     the     trial     court     but     should     have    merely     declared     that     the     proceeding     stood    abated     which     this     Court     understood     to     mean    that     the     civil     proceeding     comes     to     a     naught.     In    other     words,     the     proceedings     from     its    commencement     abate     and     no     decision     in     the    proceeding     at     any     stage     would     have     any    impact     on     the     adjudication     of     claims     by     the    parties     under     the     Act.  ”

[Emphasis supplied]

After so holding, the Bench ruled thus: -

“Both on principle and precedent it is crystal  clear that where a notification is issued  bringing the land involved in a dispute in the  civil proceeding under a scheme of  consolidation, the proceedings pending in the  civil court either in the trial Court, appeal or  revision, shall abate as a consequence ensuing  upon the issue of a notification and the effect  of abatement would be that the civil  proceeding as a whole would come to a  naught.  Therefore, the order of the High Court  impugned in this appeal is legal and valid so  far as it not only directed abatement of the  appeal pending before the High Court but also  abating the judgments and decrees of the trial

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Court and the first appellate Court because  the entire civil proceeding came to naught.”

At this juncture, we may hasten to clarify that we have  

reproduced the aforesaid passages in extenso as this Court  

has succinctly stated that not only there is abatement of  

appeal pending before the High Court, but also of the  

proceedings before trial court and of the first appellate court  

because the entire civil proceeding comes to a naught as that  

is the effect of Section 4(c) which deals with the effect of the  

notification under Section 3(1) of the Act.   

29.  At this juncture, we think it profitable to refer to a three-

Judge Bench decision in Mahendra Saree Emporium (II) v.  

G.V. Srinivasa Murthy10.  The Court was dealing with the  

effect and impact of Sections 69 and 70 of the Karnataka Rent  

Act, 1999 which had come into force with effect from  

31.12.1999 after repeal of the Karnataka Rent Control Act,  

1961.  This Court addressed to the legislative scheme under  

Sections 69 and 70 and the applicability of Clauses (b) and (c)  

of sub-section (2) of Section 70 of the 1999 Act to the  

10 (2005) 1 SCC 481

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proceedings pending before this Court in exercise of the  

jurisdiction conferred by Article 136 of the Constitution.  It  

was treated to be a plenary power and eventually held that in  

spite of old 1961 Act having been repealed by the new Act, i.e.,  

1999 Act, the appeal preferred by special leave under Article  

136 of the Constitution does not abate and survives for  

adjudication on merits.  It is apposite to note that as regards  

the plea of  abatement of the appeal certain decisions under  

the 1956 Act and 1953 Act were placed reliance upon.  The  

Bench referred to the concept of statutory abatement and  

upon perusal of the decisions in Ram Adhar (supra), Chattar  

Singh (supra), Satyanarayan Prasad Sah (supra) and Mst.  

Bibi Rahmani Khatoon (supra) opined that the said  

authorities dealt with statutory abatement consequent upon a  

notification under the State consolidation of holding legislation  

having been issued. It was ruled that in the said decisions the  

provisions of the State legislation which came up for  

consideration of the Court provided for the original case,  

wherefrom the subsequent proceedings had originated, itself to  

stand abated on the commencement of such legislation and/or

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on the issuance of the requisite notification thereunder,  

without regard to the stage at which the proceedings were  

pending. It was held that appeal was a continuation of the suit  

and inasmuch as the local law made provision for an effective  

alternative remedy to be pursued before an exclusive forum to  

redeem the grievance raised before the court, the local law had  

the effect of terminating and nullifying the initiation of the  

proceedings itself and, therefore, nothing remained for the  

court to adjudicate upon in the appeal which was rendered  

infructuous.  

30. From the aforesaid enunciation of law it is crystal clear  

that once a notification has been published under Section 3 of  

the Act, every suit and proceeding in respect of declaration of  

rights or interest in any land lying in areas or for declaration  

or adjudication of any other rights in regard to which  

proceeding can or ought to be taken under the Act pending  

before any court or authority whether of the first instance or of  

appeal, reference or revision, shall, on order being passed in  

that behalf by the court or authority before whom such suit or

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proceeding is pending shall stand abated with a view to ensure  

the jurisdiction  of the authorities under the Consolidation Act  

remains unhampered and the said authorities are not  

obstructed by the proceedings in civil courts and their  

decisions are not impeded by the decisions of the civil courts.  

It is also vivid that the purpose of the scheme of consolidation  

is to avoid conflict of jurisdiction in order to confer jurisdiction  

on the consolidation authorities who are required to  

exclusively examine the rival claims of the parties.  Apart from  

that there is conceptual difference between statutory  

abatement and abatement under the Code of Civil Procedure.  

On the basis of a statutory abatement, the whole proceeding  

from its inception stands abated because the local law has  

provided an effective alternative remedy to be perused before  

an exclusive forum to remedy the grievance raised before the  

court.   It has been further pronounced by this Court that  

nothing remains to be adjudicated before the civil court and it  

is apt to note in the case of Satyanarayan  Prasad Sah  

(supra) this Court had held that the High Court should not  

have nullified the decree of the trial court but should have

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declared that the proceedings stood abated which meant that  

civil proceedings came to a naught, that is to say, the  

proceedings from its commencement stood abated.   

31. It is interesting to note that though the decision in Raja  

Mahto and Another (supra) referred to the decision in  

Satyanarayan Prasad Sah (supra) yet wrongly applied the  

ratio by giving an opinion that the second appeal pending  

before the court had abated but the preliminary decree passed  

in suits and both the appeals had not abated.  In Dr. Jagdish  

Prasad (supra) the learned Judge who authored the judgment  

in Raja Mahto and Another (supra) sitting in the Division  

Bench in a Miscellaneous Appeal which was an appeal under  

Order XLIII of the Code of Civil Procedure again opined that a  

suit, appeal, reference or revision would abate neither a  

preliminary decree nor a final decree would abate.   Be it  

noted, in the said case the Division Bench expressed the view  

that this Court in Mst. Bibi Rahmani Khatoon  (supra) had  

not adverted with the view expressed in Satyanaryan Prasad  

Sah  (supra) and on that foundation reiterated that the suit

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comes to an end when a preliminary decree is passed for the  

purpose of 1956 Act.  It is also stated therein neither a  

preliminary decree nor a final decree would abate under  

Section 4 (c).  For the said purpose reliance was placed on a  

Full Bench decision of Orissa High Court in Srinibas Jena &  

Ors. (supra).

32. At this stage, it is condign to clarify that the High Court  

of Patna in Dr. Jagdish Prasad (supra) and Raja Mahto and  

Another(supra)  had read the judgment of this Court  

absolutely erroneously.  It has been held by this Court that  

the entire civil proceeding from its commencement stands  

abated and it comes to a naught.  In Satynaryan Prasad  

Sah (supra) this Court had found an error in the decision of  

the High Court in nullifying the decree.  It was explained in  

Mst. Bibi Rahmani Khatoon’s (supra) case that what is the  

impact when a scheme of a consolidation is undertaken.  This  

Court had referred to the pronouncement in Satynaryan  

Prasad Sah (supra) and stated both in principle and  

precedent it is clear that where a notification is issued

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bringing the land involved in a dispute in the civil proceeding  

under a scheme of consolidation, the proceeding pending  

before the civil court either in trial court, appeal or revision  

shall abate as a consequence ensuing upon the issue of  

notification and the effect of abatement would be that the civil  

proceeding as a whole come to a naught.  To elaborate not  

only the judgment and decrees would become extinct but the  

entire civil proceeding would come to a naught.     

33. Thus, the view expressed by the High Court in the  

aforesaid judgments that appeal may abate but the decree  

would not abate is not correct, more so, when the preliminary  

decree is under challenge in appeal.  In the case at hand,  

judgment and decree passed by the trial court was assailed in  

the title appeal.  Though a petition was filed under Section 4(c)  

of the Act no order was passed thereon, yet the appeal was  

permitted to be withdrawn.  Challenge being made in the civil  

revision the High Court had remanded the matter directing the  

appeal to be restored to file with a further direction that the  

matter would be dealt with on merits including the

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competence of the court to hear the appeal.  Despite the remit  

the trial court did not take note of the petition filed by the  

appellant under Section 4(c) of the Act, but observed that they  

are not interested to contest the appeal and accordingly  

directed the appeal stood abated because of non-substitution.  

This order shows total non application of mind and in a way  

paving the path of travesty of justice.  As is evincible the  

consolidation proceedings had continued and at one stage the  

authorities were relying on the findings of civil court and at  

some other ignoring the same.  Eventually, as is manifest, the  

matter travelled to the High Court in a writ petition. The  

learned single Judge ruled that the consolidation authorities  

were justified in relying on the findings of civil court.  

34.  We may hasten to add that some evidence was adduced  

and some documents were filed before the consolidation  

authorities to substitute their respective claims as regards  

status and their respective shares but the whole issue, as is  

demonstrable, has turned on reliance on the findings recorded  

by the civil court.  

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35. The question that emanates for consideration if the  

appeal which is a continuation of suit had abated whether  

findings recorded therein could have been relied upon.  We  

have noted that in the cases of Raja Mahto and  

Another(supra) and Dr. Jagdish Prasad  (supra) the High  

Court of Patna had taken a view that on issuance of  

notification under Section 3 of the Act the suit or appeal would  

abate but neither the preliminary decree nor the final decree  

would abate.  For the said purpose inspiration had been  

drawn from Srinibas Jena & Ors. (supra) a decision rendered  

by the Full Bench of the High Court of Orissa.  In the Full  

Bench decision of the High Court of Orissa, the preliminary  

decree was allowed to attain finality and nothing remained to  

be adjudicated.  There is a distinction between preliminary  

decree and the final decree.  Recently in Bimal Kumar &  

Another v. Shakuntala Debi & Others11 this Court after  

referring to the decisions in Rachakonda Venkat Rao And  

Others v. R. Satya Bai (D) by L.R. And Another12, Muzaffar  

11 (2012) 3 SCC 548 12 AIR 2003 SC 3322

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Husain v. Sharafat Hussain13, Raghubir Sahu v. Ajodhya  

Sahu14, Renu Devi v. Mahendra Singh and others15, has  

ruled thus:-

“A preliminary decree is one which declares  

the rights and liabilities of the parties leaving  

the actual result to be worked out in further  

proceedings.  Then, as a result of the further  

inquiries conducted pursuant to the  

preliminary decree, the rights of the parties are  

finally determined and a decree is passed in  

accordance with such determination, which is  

the final decree.  Thus, fundamentally, the  

distinction between preliminary and final  

decree is that: a preliminary decree merely  

declares the rights and shares of the parties  

and leaves room for some further inquiry to be  

held and conducted pursuant to the directions  

made in the preliminary decree which inquiry  

having been conducted and the rights of the  

parties finally determined a decree  

incorporating such determination needs to be  

drawn up which is the final decree.”

13 AIR 1933 Oudh 562 14 AIR 1945  Pat 482 15 AIR 2003 SC 1608

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36. The Full Bench was dealing with an appeal directed  

against the final decree for partition.  The question before the  

Full Bench was whether under Section 4(4) of the Orissa  

Consolidation of Holdings and Prevention of Administration of  

Land Act, 1972 (for short `the 1972 Act’) a final decree stood  

abated.  The Full Bench referred to the notification issued  

under Section 3(1) of the 1972 Act, scanned the language  

employed in sub-section (4) of Section 4 and came to hold that  

a final decree proceeding cannot be characterized as a suit or  

a proceeding for  right, title or interest in respect of any land.  

It has been opined there that Section 4(4) does not include an  

appeal arising out of a final decree as the same would not  

declare any right, title or interest of the parties but deal with  

certain matters pertaining to what has already been declared.  

Pendency of an appeal against the final decree cannot take  

away the finality of the preliminary decree which has already  

declared the rights, title and interest of the parties.  We may  

repeat for clarity that in the said case, the preliminary decree  

passed in the suit had become final as it was not challenged

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by way of an appeal.  Thus, the factual matrix was quite  

different.  Suffice it to say that in the present case the title  

appeal was pending against the preliminary decree and an  

application under Section 4(c) had been preferred.  It would  

have been advisable on the part of the appellate court to  

record a finding that the entire proceeding of the civil suit  

stood abated.  Unfortunately, the appellate court directed  

abatement because of non-substitution of the legal heirs of  

one of the respondents.  We are conscious that an order is to  

be passed on an application filed under Section 4 (c) of the  

Act, but we do not intend to relegate the matter to that stage  

as it is obvious that in the suit, right, title and interest and  

status were involved which do come within the scheme of  

consolidation.  Hence, the suit as well as the appeal abated  

and resultantly the very commencement of the civil proceeding  

came to a naught and, therefore, findings recorded in the said  

proceeding became extinct.  The learned Judge dealing with  

the writ petition as well as the learned Judges deciding the  

intra-court appeal did not appreciate the lis in proper  

perspective and opined that the reliance on the findings

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recorded by the civil court by the revisional authority under  

the 1956 Act could not be faulted.  The said conclusion is  

wholly erroneous and deserves to be overturned and we do so.

37. Consequently, the appeal is allowed, the orders passed  

by the learned single Judge as well as of the Division Bench  

are set aside and the matter is remanded to the file of the  

learned single Judge to decide the matter on merits on the  

basis of the material brought before the Consolidation  

Authorities.  We repeat at the cost of  repetition that none of  

the findings recorded by the civil court shall be taken aid of.  

There shall be no order as to costs.

……………………………….J. [K. S. Radhakrishnan]

……………………………….J.                                            [Dipak Misra]

New Delhi; October 05, 2012