GIRJA RAI Vs. GBAFOOR MIAN

JUDGEMENT

(1.) Plaintiff -respondent -first party is the petitioner in the instant case. This application is directed against order dated 22.6.1979 passed by the District Judge, Sitamarhi, in Title Appeal No. 81 of 1977 holding that the appeal as well as the suit (which was decreed by the trial court after the notification in question) stand abated. The court of appeal below held that the dispute related to a portion of the homestead land on which no house stood and that it was also the plaintiff's case. The other finding given by the court of appeal below, on which the impugned order is based, is that the disputed plot came under the operation of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, (hereinafter referred to as the Act), as the definition of the word "land" includes homestead land also. The third finding given by the court of appeal below is that though it was true that the plaintiff's relief for declaration of title and recovery of possession was to be made after adjudication that he was the adopted son but the plaintiff had not claimed that adjudication specifically in his plaint and, as such, such a declaration could not be made. Upon the aforesaid findings the court of appeal below held that the appeal as well as the suit (already decreed by the trial court) stood abated.

(2.) Learned counsel appearing on behalf of the petitioner has submitted that the disputed land includes a building structure existing thereto and has contained that such a fact having been pleaded in the rejoinder filed by the plaintiff -petitioner in the court of appeal below, the court of appeal below should have held that the suit and the appeal were not hit by the provisions of Sec. 4(c) of the Act, as contended by the defendant first party. The learned counsel for the petitioner, in all fairness, has placed before me his rejoinder filed in the court of appeal below and on the basis of paragraphs 5 and 6 of the same contended that if these facts were there, the suit and the appeal were beyond the jurisdiction of the Consolidation authorities. It is desirable to quote paragraphs 5 and 6 of the rejoinder filed by the plaintiff -petitioner in the court of appeal below: - -

(3.) It is well settled by now that an agriculturist may have more than one houses and it has been held in the case of Ram Pratap Mahto and Ors. v/s. Diplal Mahto and Ors. (1979 BBCJ 738) that only such a house which is unconnected with agricultural operation is saved under the Act and the provisions of Sec. 4(c) will not be applicable. But such a house of an agriculturist, though it is a house, which is connected with the agricultural operation, is hit by the provisions of Sec. 4(c) of the Act. It is true, if there is any controversy with regard to the fact whether the house is connected with agricultural operation or not; in that case, it is incumbent upon the Court to first resolve the controversy and then decide the applicability of Sec. 4(c) of the Act, as already held in the case of Ram Pratap Mahto (Supra). In the instant case the plaintiff petitioner himself does not aver either that he is living in the house or that it is not connected with the agricultural operations. By now the law is well settled and hence in the absence of such a plea on the part of the plaintiff -petitioner, in his rejoinder itself, it is not open to the plaintiff -petitioner to contend that as the land is a homestead land it is not hit by the provisions of Sec. 4(c) of the Act. The court below has very correctly held that the portion in dispute of plot in question, even though it is a homestead land, falls within the provisions of Sec. 4(c) of the Act.