Judgment UDAY SINHA, J. 1. This application in revision by the plaintiff is directed against the order of 4th Additional Subordinate Judge dated 5-8-1978 in which it was held and declared that Title Suit No. 242 of 1964, out of which had arisen Title appeal No. 46/36 of 1969/1977 had abated by virtue of the provisions of Sec. 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act 1956, (hereinafter called the Consolidation Act), 2. The petitioner instituted Title Suit No. 242 of 1964 against the opposite party for the latters eviction from a portion of a house standing over plot No. 195 in village Tenua, Police Station Nokha, district Rohtas as also for a decree for arrears of rent. The trial Court decreed the suit. The defendants (opposite party) being aggrieved by the judgement and decree of the trial court filed Title Appeal No. 46/36 of 1969/1977 While the appeal was pending before the 4th Addl. Subordinate Judge, the petitioner, (respondent in the court below) filed an application praying for a declaration by the lower appellate court that the appeal had abated in terms of Sec. 4(c) of the Consolidation Act. The opposite parties (appellants in the court below) filed rejoinder and contended that since the eviction of the defendants was the subject matter of the suit it did not fall within the mischief of Sec. 4(c). Before the respondents petition and the appellants rejoinder could be disposed of, the petitioner filed another petition for withdrawal of his earlier petition in respect of abatement of the appeal. The learned Additional Subordinate Judge heard the parties and rejected the prayer for withdrawal of petition of the plaintiff respondent by order dated 5-8-1978 and passed orders holding that the suit out of which the appeal had arisen had abated by virtue of Sec. 4(c) of the Consolidation Act. The suit and the appeal thus stand abated. The petitioner being aggrieved by order of the learned Subordinate Judge has moved this Court by the present application for setting aside the impugned order dated 5-8-1978. 3. Learned Counsel for the petitioner contended that the Consolidation Act did not come into operation on the facts and circumstances of the instant case and therefore, the impugned order was without jurisdiction and liable to be set aside. 3. Learned Counsel for the petitioner contended that the Consolidation Act did not come into operation on the facts and circumstances of the instant case and therefore, the impugned order was without jurisdiction and liable to be set aside. The submission of the petitioner was that a suit in respect of homesteads remains unaffected by Sec. 4(c) of the Consolidation Act despite the continuance of a consolidation proceeding. Sec. 4(c) of the Consolidation Act reads as follows :- "(1) Upon the publication of notification under Sub-Section (1) of Sec.3 in the official gazette, the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified in the notification till the close of the consolidation operation, ensue in the area to which the notification relates, viz, xx xx xx xx (c) every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or interest in and 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, 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 : provided x x x x x x Provided also that no such order shall be passed without giving to the parties notice by post, or in any other manner that may be convenient and after giving them an opportunity of being heard; Provided further that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in disputes 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" 4. From the provisions, quoted above, it will be appreciated that Sec. 4(1), (c) of the Consolidation Act deals with "rights or interest in any land" Land has been defined in Sec.2(9) of the Consolidation Act as follows :- "Land means agricultural land, and includes horticultural land, Kharaur land, and with bamboo clumps, pasture land, cultivable waste land, homesteads, tanks, wells and water channels I have little difficulty in holding that homesteads fall within the purview of the mischief of Sec. 4(1)(c). Sec. 2(9) specifically and in unambiguous terms refers to homesteads as included within the expression land. It is, therefore obvious that suit in respect of title to homesteads also fall within the mischief of Sec. 4(1)(c) and it consolidation proceeding has been initiated in the area in which the homestead is located, the suit would be carried. The question whether Sec. 4(1)(c) bars suits in respect of title to homestead also was pointedly raised before a Division Bench in Civil Revn. No. 338 of 1979 (Ram Pratap Mahto V/s. Diplal Mahto) disposed of on 24-8-1979.*S. Sarwar Ali, with whom R.P. Mandal, J. agreed held that homesteads were not beyond the purview of the consolidation operations. I am in respectful agreement with the law laid down by S. Sarwar Ali, J. * Reported in 1979 BB CJ (HC) 738. 5. Point, however, which falls for consideration in the instant case is different from the one disposed of by S. Sarwar Ali, J. A look back at Sec. 4(1)(c) of the Consolidation Act shows clearly that what is barred is suit and proceedings in respect of declaration of rights or interest in any land Hijali Thakur V/s. Rameshwar Thakur, 1977 0 PLJ 410, relied upon by the apposite Party was a case, arising out of a suit for declaration of title and recovery of possession. Similar was the position in Ram Pratap Mahtos case, referred to above. The two earlier Division Bench decisions are unexceptionable. In the instant case, however, the suit is not for declaration of title or interest in any land. The instant case is a pure suit for eviction of the defendants from a room let out to them. It is another matter that in written statement filed by the defendants, they have denied their relationship of landlord and tenants and have claimed to be the owners of the entire building. The instant case is a pure suit for eviction of the defendants from a room let out to them. It is another matter that in written statement filed by the defendants, they have denied their relationship of landlord and tenants and have claimed to be the owners of the entire building. The attitude of the defendants cannot after the nature of the suit. It cannot be gainsaid that the plaintiff is free to frame his suit in any manner he likes. He has the choice of frame of suit, the parties to the suit and a limited extent the place of suing. The attitude of the defendants is irrelevant in determining the nature of a suit. The dependants in the instant case having denied the relationship of landlord and tenants, the suit may be dismissed, but because of the pleadings of the defendants the quit for eviction cannot become thereby a suit for title or interest in land. It is true that the question of the plaintiffs title to a land may be considered by the courts below in order to give the relief prayed for, but the adjudication on the question of title will be only incidental. The learned Additional Subordinate Judge failed to appreciate this aspect of the matter. He failed to appreciate that the present suit was not a suit or proceeding for correction of record of rights or for declaration of rights or interest in any land. The court below placed reliance upon Bijali Thakurs case (supra) without fully appreciating that the suit in that case was one for declaration of title. In my view, therefore, the order of the learned Additional Subordinate Judge suffers from a patent error on a question of law which has led into passing the impugned order. He had no jurisdiction to declare that the suit and the appeal had abated. 6. For the reasons, stated above the application is allowed and the order of the 4th Additional Subordinate Judge, Sasaram dated 5-8-1978 is hereby set aside. The title appeal must now be disposed of on merits. In the circumstances of this case, there will be no order for costs. UMESH CHANDRA SHARMA, J. 7 I agree.