MUNESHWARI DEVI Vs. KANHAIYAIAL SHARMA

JUDGEMENT

(1.) The petitioners are defendants No. 10 to 14 and 19 in Partition Suit No. 127 of 2007 which is pending in the Court of Sub-Judge-IX, Muzaffarpur. They are aggrieved by an order dated 7.6.2011 passed by the Court below, whereby it has rejected an application filed by the petitioners for abatement of suit under the provisions of Sections 4(b) and 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as 'the Act'). Learned counsel for the petitioners submits that notification under Section 3 issued under 'the Act', is in operation in the area and, therefore, the suit seeking partition should have been ordered to be abated on an application filed by the petitioners but the Court below wrongly rejected the application seeking abatement under Section 4(c) of 'the Act', merely on the ground that issues had been framed in the suit. He submits that the Court below passed the impugned order on erroneous consideration and is, therefore, fit to be set aside. Learned senior counsel appearing on behalf of the Respondents No. 1, 2, 3, 6 and 7, who are the plaintiffs before the Court below, submits on the other hand that the Court below rejected the application for abatement under Section 4(c) of 'the Act', basically on the ground that the nature of the suit land i.e. whether they were agricultural or homestead land, was in serious controversy. In such view of the matter, according to him, the Court below has rightly proceeded to decide this disputed question of fact first, alongwith the other issues.

(2.) He submits that Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 does not contemplate automatic abatement of a suit with issuance of notification under Section 3 of 'the Act'. He contends that a suit would abate only upon an order being passed in that behalf by the concerned Court in view of the publication of notice under sub-section (1) of Section 3 of 'the Act'. He submits that provisions of the Act are applicable to agricultural land only and in a case where there is controversy over nature of the land, the Court, before passing an order under Section 4(c) is required to decide this controversy first. He submits that without there being concrete evidence as regards the nature of the suit land, the Court would not be in a position to pass an order under Section 4(c) of 'the Act', which would certainly be a judicial order.

(3.) From the impugned order it appears that the Court below has not held that the suit would not abate in the facts and circumstances of the case. The Court has rather recast the issue earlier framed and has added the issue as to whether the suit is barred by Sections 4(b) and 4(c) of 'the Act'. The Court has rightly proceeded to decide first the fact as regards the nature of the land in dispute, before passing an order under Section 4(c) of 'the Act'.