Ram Sunder Ahir vs Sidh Nath Ahir and another

A.K. Sinha, J.—This application is by plaintiff no. 2 against order dated 15th of May 1981 holding that the suit as abated u/s 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter to be referred to as the Act). The father of plaintiff no. 2 along with plaintiff no. 2 (the petitioner) brought a suit for declaration of title and confirmation of possession over the property described in schedule ''A'' appended to the plaint and also for a declaration that the survey entry of the suit land in favour of the defendants was wrong. Father of the petitioner died during pendency of the suit. The defendants filed an application to the effect that the suit had abated u/s 4(c) of the Act. The plaintiff also filed a rejoinder. A copy of the rejoinder has been annexed as annexure ''1'' to this revision application. The relevant paragraph is quoted below.

The plaintiff also filed a report furnished by the Consolidation Officer, Arrah to show that the consolidation operation for village Rampur Nathia in Thana no. 40 had concluded and purchas had been distributed to the tenants of the village and on this basis also it was submitted on behalf of the plaintiff in the court below that the petition filed by the petitioner u/s 4(c) was fit to be rejected.

Admittedly the notification u/s 26A of the Act was not made till the date of the order as the copy of the notification was not produced by the plaintiff. It is well settled that the abatemant of the suit under the provisions of section 4(c) of the Act operates till the notification u/s 26A of the Act is published.

Lenrned Counsel appearing for the petitioner has, in view of the statement made in paragraph 2 of the rejoinder filed by him in the court below (which has been quoted above) has stated that the land was a home-stead land and hence, Section 4(c) of the Act was not applicable. The learned Counsel has further submitted that the land though homestead, was not used for agricultural purpose and therefore, it was beyond the ambit of Section 4C of the Act. There is no force in the submissions advanced by the learned Counsel for the petitioner. In the plaint the plaintiff seeks for declaration of title and confirmation of possession over the suit land. In paragraph 2 of the rejoinder which has been quoted above, it is not stated that the house standing on the land was a residential house in which the plaintiffs were living. It is also not stated that the house belong to the plaintiff. It is nowhere stated that this is not meant for agricultural purposes. The only statement is that there is a house on that land. This statement is not enough for holding that it is beyond the ambit of section 4C of the Act. Learned Counsel for the petitioner has relied upon the case of Ram Pratap Mahto and others v. Diplal Mahto and others (1979 BBCJ, 738). In that case it was held that in case of controversy whether a house was homestead or not the court would first decide the question before applying section 4C of the Act. In the instant case there is no controversy at all, as I have stated above that the averment made in paragraph 2 of the rejoinder is not to the effect that the house was a homestead one. It is not the plaintiff''s case that the house mentioned in paragraph 2 of the rejoinder is not meant for agricultural operation. Homestead lands are covered within the definition of lands. It is only such a house which is unconnected with the agricultural operation, which is not covered u/s 4C of the Act. Where an agriculturist has two houses, one connected with agricultural operation and other unconnected there. with, it is the former which comes under the Operation of homestead, reason being that the latter house or building is not homestead within the meaning of the Act. In the instant case there is no controversy whether the building is homestead or not. In that view of the matter, in my opinion, it is fully covered by the provisions of section 4C of the Act. It is well settled in the case of Bijali Thakur and others v. Rameshwar Thakur and others (1977 PLJR 410) that a suit of the nature in which the plaintiff has claimed for declaration of title and confirmation of possession is fully covered by the provisions of section 4C of the Act. In the result, the application is dismissed, but without costs.