JITU BHAGAT Vs. RAM PRASAD BHAGAT

JUDGEMENT

(1.) THIS is an application by defendant in a Title Suit against an order by which his w application purporting to be under section 4(b) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as 'the Act') has been rejected. In other words, he is aggrieved by the order of the trial Court holding that the suit is maintainable notwithstanding the provisions of Section 4(b) of the said Act.

(2.) I have heard both the parties. Sri Keshav Shrivastava, Senior counsel appearing in support of this application has submitted that notwithstanding the fact that the land in question was a homestead land in terms of Section 4(b) read with the definition of land as given under section 2(9). So long as a notification under section 26A was not issued in a consolidation proceeding, the suit was not maintainable.

(3.) I have considered the argument of both the sides. To me, it appears that once a notification is issued under section 3 in respect of any area then the bar under section 4 would operate in respect of all lands irrespective of its nature but this bar does not extend once the proceedings have crossed the stage of Section 10. After that stage homestead, orchard, graveyard and other such lands which cannot be shifted for the purpose of amalgamation/consolidation they are exempted from the rigours of Section 4(b) or 4(c) for that matter. The reason is that upto the stage of Section 10 the consolidation authorities are preparing and revising revenue records by surveying the area in consolidation proceedings. Therefore, even homestead land, orchard, graveyard etc. get covered under consolidation operation but once the survey is complete then scheme or plan for consolidation of agricultural holdings are published and therefore all other proceedings are only in relation to agricultural holdings which are then transferred for the purpose of consolidation. Other holdings like orchard, homestead, graveyard etc. are to be left untouched. It is for this reason that it is said that the provision of Section 4(b) or 4(c) would not apply to homestead etc. I am fortified with the decision of this Court since reported in 1995(2) PL.J.R. page 710 wherein S.N. Jha, J. (as he then was) has noticed this very scheme in para 5 thereof. This is consistent with the other two decisions referred to by the learned counsel appearing for the opposite parties. No judgment has been cited which has taken a different position that right from the time when Section 3 notification is issued no suit can either be instituted or suits already instituted would abate in respect of all lands comprise in the notification under section 3 of the Act, till notification u/s 26A is issued. By all lands I mean the lands as held to be land for the purpose of the Act by 1995(2) P.L.J.R. Page 750. If that was so then there would be no question of establishing the particular lands to be orchard, homestead, graveyard or otherwise nor there would be any question of partial abatement because all lands irrespective of their nature would be covered under the provisions of Section 4 upto the stage of Section 26A. This is not the position.