1. This civil revision petition arises out of an order dated 19th April, 1978.
2. In appeal, the lower appellate court held that the appeal was not hit by Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as ‘the Act’) which runs as follows:
“4. xxxxxxxx
(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.
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3. On a perusal of this section, it is clear that every suit and proceedings in respect of declaration of rights or interest in any land lying in the area where the notification has been made under Section 3 of the Act shall abate under S. 4(c) of the Act. In my opinion, only such suit, appeal, reference or revision shall abate if such a suit, appeal, reference or revision is in respect of declaration of rights or interest in any land lying in the area where a notification has been made under S. 3 of the Act. If the suit or appeal or revision or reference is not in respect of declaration of any right or interest in any land, then such a suit will not abate. In other words, if a suit is filed unconnected with the declaration of right or interest in any land where the consolidation proceeding is going on, then such a suit will not abate.
4. In the present case, it is clear from the petition and the counter-affidavit that the suit lands were purchased at an auction by the decree-holder. The plaintiffs-opposite party purchased the entire holding consisting of 5.75 acres of land from the auction-purchaser-decree-holder. It is also clear from paragraph No. 3 of the counter-affidavit that the pale certificate was granted to the decree-holder on 18th April, 1964. The sale certificate is a document of title. The title has already been declared in favour of the decree-holder by issuing the sale certificate. These plaintiffs are the assignees of the decree-holders, and as such, they have got title in respect of the suit land. It is not at all necessary for these plaintiffs-opposite party to file a declaratory suit for title and interest in the suit land. Therefore, the present suit was filed by these plaintiffs-opposite party for delivery of possession of the suit land as well as for mesne profits.
5. In this connection, learned Counsel for the petitioners relied on a Full Bench decision of this Court in Ram Krit Singh v. State of Bihar, (1979 BBCJ (HC) 259) : (AIR 1979 Pat 250). In that case, in paragraph No. 15, their Lordships held as follows:
“Controversy in a suit may relate to right and title in land and certain reliefs dependent on the determination of the aforesaid title. Only in such a situation, in my opinion, the suit abates not only in relation to ancillary or dependant reliefs. But the position is different where independent relief or reliefs, unconnected with the declaration and determination of title to land are involved in a suit. In such a situation the suit does not abate in relation to such controversies.”
Therefore, my view is being fully supported by the Full Bench decision in Ram Krit Singh's case (supra).
6. Learned Counsel for the opposite party on the other hand, has relied on a Full Bench decision of the Patna High Court in Tribeni Prasad Singh v. Ramasray Prasad Chaudhari, (AIR 1931 Rat 241). The question for decision in this Full Bench case was whether the suit instituted by the decree-holder-auction-purchaser for recovery of possession of the property purchased in execution of the decree was barred by the provisions of Section 47 of the Code of Civil Procedure? Their Lordships held that the suit was maintainable and was not barred by the provisions of Section 47 of the Code of Civil Procedure. In other words, their Lordships held that if a decree-holder purchased the land at an auction sale, then he can bring a suit for recovery of possession or delivery of possession.
7. In the present case, the suit property was purchased by the decree-holder in an auction sale and he transferred the suit property to these plaintiffs-opposite party. Therefore, in view of the Full Bench decision in Tribeni Pd. Singh's case the suit for delivery of possession and mesne profits is maintainable. If it is maintainable, such a suit is not hit by the provisions of S. 4(c) of the Act as it is not a suit for declaration of title or any right or interest in the suit property. The plaintiffs-opposite party have already got title on the basis of the sale certificate granted to the decree-holder. Therefore, the suit for delivery of possession and mesne profits is maintainable.
8. Learned Counsel for the petitioner has further relied on a Division Bench decision of this Court in Bijali Thakur & Others… v. Rameshwar Thakur & Others…, (1977 BBCJ (HC) 701). In this case, the plaintiffs had prayed for a declaration of their title and recovery of possession. This Court held that such a suit was hit by S. 4(c) of the Act. Learned Counsel for the petitioners has relied on the following sentence as mentioned in paragraph No. 4 of the judgment:
“In short in every suit for recovery of possession of land fend mesne profits, as in this suit a declaration of the right or interest on the basis of which the prayer is made has necessarily to be made and without such a declaration no relief with regard to possession or mesne profits can be granted.”
The argument advanced before that Bench was that the civil court can try a suit in respect of mesne profits and possession. Their Lordships held that the relief in respect of mesne profits and possession could be granted only on the basis of declaration of title. In that suit, the plaintiffs prayed for a declaration of title and recovery of possession as well as for mesne profits. Their Lordships were of the view that the relief for mesne profits and possession could not be granted unless there was a declaration of title in respect of the suit land and, therefore, their Lordships held that in such a situation the whole suit would be hit by S. 4(c) of the Act in respect of the relief for possession and mesne profits. But, their Lordships have not examined a case where a suit is filed for delivery of possession and mesne profits. Therefore, this decision does not apply to the present case.
9. So far as the present case is concerned, in my opinion, the lower appellate court exercised the jurisdiction which was vested in it by law. The lower appellate court rightly held that S. 4(c) of the Act would not apply in respect of a case for delivery of possession and mesne profits. In my opinion, the appellate court committed no jurisdictional error. The appellate court had jurisdiction to pass such an order.
10. In the result, the petition is dismissed but without any costs. The record may be sent immediately to the court below.
Petition dismissed.