MIRZA SULAIMAN Vs. HARIHAR MAHTO

JUDGEMENT

(1.) Whether a Kabaristan is within the ambit of the wide sweep of the definition of 'land' in section 2(9) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter to be referred to as the 'Consolidation Act') is the significant question necessitating this reference to the Division Bench.

(2.) The petitioner, Mirza Sulaiman Beg and others had instituted a Title Suit in their individual as well as representative capacity on behalf of the Muslim public for the alleged removal of encroachment made by the defendants and others over a portion of a Kabaristan situated in Muradabad Kalan and for restraining the defendants from interfering with the land or the trees thereon. It was averred that the aforesaid land is a very old Kabaristan and the dead bodies of the Muslims residing in the localities were being buried therefrom time immemorial. On this premise, it was the stand that the same was not agricultural land within the meaning of the Consolidation Act. In contesting the suit, the defendants in the written statement pleaded, inter alia, that they had taken a settlement of ten decimals out of the disputed plot of land and constructed a house and other appurtenance thereon and further denied the Kabaristan - character of the plot. On the 25th of April, 1978, defendant No. 2 filed a petition claiming that the suit had abated in view of the notification under S.3 of the Act with respect to the area in which the plot of land is situated. The petitioners in rejoinder to the said petition took the stand that the land in question was outside the purview of the Consolidation Act and, therefore, S.4(c) of the Act was inapplicable. By the impugned order dated the 24th of Jan. 1979, the learned Additional Munsif, Sasaram, without adverting in detail to the character of the land, was Kabaristan and whether the same would be the land within the meaning of S.2(9) of the Consolidation Act, proceeded to hold on the basis of the notification that the suit was hit by S.4(c) and ordered that the same stood abated.

(3.) This civil revision originally came up before my learned brother Sharma, J. sitting singly. Before him, the learned counsel for the parties relied on Ss.2(9), 4(c) and 11(3) of the Consolidation Act to buttress their respective stand. Considering the significance of the question, the matter was referred to be decided by a larger Bench.