Judgment S. B. Sinha and J JJ. 1. This application is directed against orders dated 16.10.1981 passed by the Deputy Director Consolidation and the order dated 7.1.1986 passed by the Joint Director, Consolidation as contained in Anaexures 4 and 5 to the writ application. 2. Bereft of all unnecessary details the fact of the matter is as follows : hira Upadhyay was the common ancestor of the parties. He had two sons, Gharbobhan Upadhyay and Rameshwar Upadhyay. There was a partition between the aforementioned two brothers. Gharbobhan Upadhyay died leaving behind four sons, namely ram Nagina Upadhyay, Balram Upadhyay, (Petitioner no.1)Anjani Kumar Upadhyay (Petitioner no.2) and Doman upadhyay, Rameshwar Upadhyay pre-deceased bis brother died leaving Ram Rati Devi and other heirs. 3. By reason of a registered deed of sale dated 10.2.1957, Choudhary sheo Das Singh sold C. S Plot no.319 to Ram Nagina Upadhaya, balram Upadhyaya (Petitioner no.1) and Rameshwar Upadhaya. All the purchasers had l/3rd interest in the said purchased properties. A registered deed of partition was executed on 17.5 1957 in terms where of 50 decimals of land in C S. Plot No.319 was allotted to the share of the petitioners whereas Rameshwar Upadhyay was allotted a share in plot no 144 with the house standing thereupon. The said plots however at the preparation of revisional survey settlement records of right was sub-divided into two plots being plot nos 493 and 494 Plot No.493 was recorded in the name of the petitioners and 4 decimals of the land being plot no- 494 was recorded as in the name of Rameshwar upadhayaya. 4. An objection under section 103 of the Bihar Tenancy Act was filed and in the said proceeding the claim of the petitioners was admitted by Rameshwar Upadhayay, but by inadvertance instead of allowing the claim, the objection of the petitioner was disallowed by an order dated 26.2.1969. 5. The petitioner, however, did not proceed further as he was assured by Rameshwar Upadhyay that his possession shall not be disturbed. Thereafter, a Consolidation of Holdings and Prevention of Fragmentation act, (hereinafter referred to as the Act) and at that time taking advantage of the wrong entry in the revisional settlement records of right, the petitioners possession was sought to be disturbed by Rameshwar upadhyaya The petitioner filed a suit being Title Suit no.176/1975. Thereafter, a Consolidation of Holdings and Prevention of Fragmentation act, (hereinafter referred to as the Act) and at that time taking advantage of the wrong entry in the revisional settlement records of right, the petitioners possession was sought to be disturbed by Rameshwar upadhyaya The petitioner filed a suit being Title Suit no.176/1975. In that suit an application was filed under section 4 (C) of the Act and by reason of an order dated 22.6.1979 as contained in Annexure-2 to the writ application it was held that the suit stood abated. In the mean while, the petitioners filed an objection under section 12 (2) of the Act and by an order dated 22.6 1979 the Consoldation offcer had stayed the case till the disposal of the aforementioned suit. In view of the order as contained in Annexure-2 to the writ application the petitioner again filed an application before the Consolidation Officer for declaration of his right and correction of the register of the land. By an order dated 31 10.1980 (Annexure-3) the said objection of the petitioners was upheld. 6. Rameshwar Upadhyaya, however, in the meanwhile executed a will in favour of his daughter Ram Dai Devi A probate in respect of the said will was granted. Admittedly an appeal against the said judgment is pending before the Calcutta High Court. 7. Mr. S. S. Dwivedi, learned counsel appearing on behalf of the petitioner raised a short question in support of this application. The learned counsel submitted that from a perusal of the order passed by the Joint Director-Consolidation it would appear that it has inter alia been held that the lands in question is homestead and thus chakbandi in relation to said plots will have no effect whatsoever. 8. It has further been submitted that although the revisional authority had taken note of the fact that appeal against the order granting probate of the will is pending consideration before the Calcutta High court, but the same will have no application in relation to the matter relating to the question of title. The learned counsel, therefore, submitted that the impugned orders are liable to be set aside. Mr. The learned counsel, therefore, submitted that the impugned orders are liable to be set aside. Mr. Shyam Kishore Prasad, the learned counsel appearing on behalf of the respondent no.4, on the other hand, submitted that in view of the fact that the matter relating to the genuineness of the will is pending consideration before the Calcutta High Court, this Court should not interfere with impugned order. 9. In this case the Director Consolidation appears to have blown hot and cold at the same time. If he was of the opinion that the lands in question did not come within the purview of the provisions of the said act, he was not required to take into consideration the merit of the matter. In that event, the parties could get their title adjudicated in a duly constituted civil suit. 10. The Director Consolidation further misdirected himself insofar as he failed to take consolidation that in a proceeding for grant of probate or letter of administration, the only question which falls for consideration is the genuineness of the will in question and in such a proceeding the right title and interest in relation to the properties, which may be subject matter of the will, cannot be adjudicated upon The contesting parties therefore, must get their respective title determined by a competent civil court. 11. The Director Consolidation, therefore, has taken into consideration wholly irrelevant matter in holding that no interference with the appellate order was called for. 12. Further it appears that Ram Dulari Devi had filed a writ application in this court being CWJC no.1331 of 1986. The said writ petition was permitted to be withdrawn by a division bench of this court in view of the full bench decision of this Court in Kalika Kuer V/s. State of bihar reported in 1989 PLJR 1203 so as to enable her to seek remedy before the Civil Court. The question of title in relation to plot No.494 is thus required to be adjudicated. 13. For the reasons aforementioned, this application is allowed the impugned order as contained in Annexure-5 to the writ application is quashed and the Director Consolidation is hereby directed to consider the matter afresh. The Director Consolidation shall give a specific finding as to whether the lands in question is homestead lands or not. 13. For the reasons aforementioned, this application is allowed the impugned order as contained in Annexure-5 to the writ application is quashed and the Director Consolidation is hereby directed to consider the matter afresh. The Director Consolidation shall give a specific finding as to whether the lands in question is homestead lands or not. For that purpose, the parties must bring on records such evidences upon which they may rely upon in accordance with law namely upon following the procedures laid down under the Evidence Act. 14. It is further well known that the power of the director Consolidation" under section 35 of the act is wide one. It the Director consolidation, in the event, arrives at a finding that the lands in question come within the purview of the said Act. he shall consider the question of title also. 15. This application is allowed with aforementioned observations and directions but in the facts and circumstances of the case, there will be no order as to costs. Application Allowed