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2005 DIGILAW 592 (PAT)

Ayodhya Prasad Dubey v. Jai Shankar Dubey

2005-07-08

S.N.HUSSAIN

body2005
Judgment S.N.Hussain, J. 1. Heard learned counsel for the parties. 2. The petitioners are plaintiffs of Title Suit No. 25/2000, which they had filed for declaration of title and for injunction etc. 3. The petitioners are aggrieved by order dated 11.9.2001 passed in the aforesaid suit, by which the learned Munsif-ll, Sasaram allowed the petition filed by opposite parties-defendants no. 1,3,4, 6, 7,9,10 and 11 and held that the suit had abated In view of the judgment of this Court in the case of Seikh Haidar Zan vs. Md. Yusuf Ansari & Anr. reported in 2000(2) P.L.J.R. 338. 4. Learned counsel for the petitioners submits that the consolidation proceeding had been stopped in the area and hence there was no occasion for abatement of the suit. He further claims that the plaintiffs-petitioners have specifically stated in their plaint that there is Pucca house over the suit land in which they are residing wild their respective families and hence the provisions of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act for the sake of brevity) will not be applicable, but this aspect of the matter was completely ignored by the learned court helow, which has passed the impugned order illegally and arbitrarily. 5. On the other hand, learned counsel for opposite party no. 8 vehemently opposes the contention of the learned counsel for the petitioners and submits that earlier notification under Section 3 of the Act stopping consolidation proceeding in the State had been cancelled by way of notification under Section 4A of the Act by the State Government, whereafter the consolidation proceeding has restarted in the entire State. He further submits that the consolidation proceeding has not concluded in the area as yet under the provision of Section 26A of the Act, hence the suit has clearly abated. He further contends that there is no residential house of the petitioners over the suit land and hence the suit lands are well within the purview of the Act, considering which the learned court below has rightly ordered for abatement of the suit. 6. He further contends that there is no residential house of the petitioners over the suit land and hence the suit lands are well within the purview of the Act, considering which the learned court below has rightly ordered for abatement of the suit. 6. After considering the arguments of the learned counsel for the parties and after perusing the materials on record, it is quite apparent that after notification of the State Government under Section 4A of the Act consolidation proceedings have restarted in the entire State and in the area concerned no notification under Section 26A of the Act has been issued. 7. But from the plaint of the suit it is quite apparent that the plaintiffs-petitioners have specifically claimed that they have their esidential house over the entire suit land in vhich they are residing. However, learned counsel for the defendant-opposite party has stated that the Assistant Director of Con- alidation in its report has stated that there are some houses on some parts of the suit louse and the rest lands are vacant. 8. In the aforesaid circumstances, earned court below has clearly committed a grave legal mistake and jurisdictional er-ror by not holding any enquiry and deciding as to whether the entire suit land contains esidential houses or there are some houses and there are some vacant lands, which can be said to be homestead of the land- holders connected with agriculture purposes. Unless this issue is decided, it cannot be held that the suit has abated under the Act because if the suit land contains houses and homestead of land-holders un-connected with agriculture, the provisions of the Consolidation Act will not be applicable. 9. In the aforesaid facts and circumstances, the impugned order is set aside and the matter is remitted to the learned court below to hold an enquiry and decidethe issue mentioned above before passing any order in that regard in the light of the observations made above and the provisions of law applicable thereto. 10. This civil revision is, accordingly, allowed.