Nabudi Mahto and Others vs Ramchandra Singh and Others

M.P. Verma, J.—The plaintiffs, who are petitioners here filed Title Suit i.e. T.S. No. 153 of 1974 in the court of Munsif First, Hajipur for declaration of title and recovery of possession over 1 katha of the disputed land with a prayer for removal of the structure.

Admittedly the area where the suit land situates has been notified u/s 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as ''the Act'') and consolidation operation is going on in the village. The subject matter of the suit is with regard to 1 katha of land of R. S. plot No. 256 of Khata No. 940 extending to cadastral survey plot No. 135 whose total area is 3 kathas and has been recorded as Baskit (homestead) in the name of grandfather of the plaintiffs. It is the case of the plaintiffs that in part of the disputed plot stands the house of the plaintiffs and 1 katha of the eastern portion which is in dispute is being used as Sahan.

It was on 26-4-1979 that the defendants filed a petition stating therein that due notification and publication u/s 3 of the Act has been made and consolidation proceeding is going on in the village which includes the land in dispute and the notification u/s 10 of the Act has also been received and as such, the suit is hit by Section 4 (c) of the Act. The learned Munsif on hearing the parties and. on consideration of the materials placed before him held that the suit being hit by Section 4 (c) has abated.

Learned counsel for the petitioner Sri T.S. Tetarwai has challenged the validity of the impugned order on the sole ground that the portion of the land in dispute is not connected with the agricultural purpose and as such, it is excluded from the mischief of Section 4 (c) of the Act. It has been seen that the area with reference to suit land has already been notified u/s 3 of the Act and the consolidation proceeding is in operation in the village. It cannot be denied that the suit being a suit for declaration of title and recovery of possession the same will come within the mischief of Section 4 (c) of the Act. The learned Munsif has said that the plaintiffs'' further case is that they have been dispossessed from the disputed portion of the land and defendants have constructed the house over it and their prayer in the suit is for removal of the structure, There is further finding that according to the plaintiffs'' case the land was used as Sahan by the plaintiffs and on consideration of these materials the learned Munsif has given a finding that the disputed land is a homestead land and that being so it comes within the definition of Section 2 (9) of the Act. In other words even homestead land falls within the mischief of Section 4 (c) by virtue of the definition given in the Act itself.

Taking the aforesaid facts into consideration I am of the opinion that the Court below has rightly declared the suit to have abated u/s 4 (c) of the Act. The application, therefore fails and is dismissed as such.