MUNSI PASI Vs. THAKUR SETH

JUDGEMENT

(1.) This application in revision by the defendants 1st party and defendants 2nd party is directed against the order of the learned Munsif dated 24-8-1978 by which he rejected the application of the defendants (petitioners) praying that the Court should hold that the suit had abated in terms of Section 4 (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter called 'the Act').

(2.) The facts leading to filing of the present application lie within a narrow compass. The plaintiffs and defendants 1st and 2nd pasties are neighbours. The plaintiffs filed a suit for declaration of right of easement to flow drain water on a strip of land measuring 4 links x 73 links. After a pleader commissioner had been deputed, it was found that the land, over which esement was claimed by the plaintiffs, was only 3 links x 66 links out of plot 143 of khata 125. The plaintiffs also claimed right of easement to go over that narrow strip of land (referred to as Koli in the plaint) for the purpose of repairing their house. The plaintiffs further prayer was that the defendants be permanently restrained by injunction from blocking the drain which may not interfere with the free flow of the drain water from the house of the plaintiffs

(3.) The contesting defendants, after they had filed their written statement before the trial Court, filed an application stating that the suit had abated in terms of Section 4 (c) of the Act. The trial Court after hearing the parties, rejected the application and held that the suit had not abated. Hence the present application by the defendants. 3A. Learned counsel for the petitioners has submitted that the order of the Court below was erroneous and invalid inasmuch as the suit was barred in terms of Section 4 (c) of the Act. Although the Court below (held), the application of the defendants was in terms of Section 4 (c) of the Act. Mr. Saran for the petitioners stated before this Court that Section 4 (c) was not attracted to the facts of his case but that the entertainment of the suit was barred in terms of Setcion 4 (b) of the Act and, therefore, the trial Court should have dismissed the suit as not maintainable in terms of Section 4 (b) of the Act.