ANIRUDH PANDEY Vs. MARKANDEY RAO

JUDGEMENT

(1.) DEFENDANT -petitioner, being aggrieved by the order dated 30.12.2005 passed by the Subordinate Judge, Bagaha, West Champaran in T.S. No. 38 of 2005 rejecting the application filed by it under Section 4 (b) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, has preferred this application.

(2.) PLAINTIFF filed the suit for declaration of title and confirmation of possession, inter alia, stating that the land in dispute was not suitable for agricultural purposes and accordingly, their predecessor -in - inter - est planted 18 Mango trees and other trees about 35 years earlier. Defendant appeared and filed application under Sec. 4(b) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, (hereinafter referred to as the Act), contending that the suit is not fit to be entertained. It was averred that the suit land falls within Ram Nagar Anchal in the district of West Champaran, which is duly notified under Sec. 3(1) of the Act for Consolidation of Holdings. By reason of the impugned order said prayer has been rejected on the ground that the suit property being an orchard is not subject matter of Consolidation.

(3.) MR . Ram Adya Singh, appearing on behalf of the plaintiffs -opposite party, however, contends that orchard not being the subject matter of Consolidation as conceded by petitioner itself, suit cannot be dismissed on the ground that it is not maintainable. In support of his submission reliance has been placed on a Division Bench judgment of this Court in the case of Mt. Pachiya Devi & others Vs. Bishundeo Prasad Singh & Others (1985 PLJR 989) and my attention has been drawn to paragraph 9 of the judgment which reads as follows: - "From the object and the scheme of the Act, it is manifest that a notification under Sec. 3. of the Act is to effect consolidation of holdings for the purpose of better cultivation of lands in any area and to make a scheme for consolidation of holdings in that area. The definition of the words 'consolidation ' is to make a holding more compact. Orchard, however, has been excluded for the purpose of such compactness. Abatement of a suit, appeal or revision is contemplated under Sec. 4(c) upon the publication of the notification under sub -section (1) of Sec. 3. Such proceedings for the correction of record and such suits in respect of declaration of rights or interest in any land lying within the notified area or for declaration or adjudication of any other right in record to which proceedings can or ought to be taken under this Act are to abate. Therefore, the question which immediately crops up is whether a proceeding for consolidation can or ought to be taken with respect to an orchard? The proceeding within the object of the Act is consolidation of holdings. Since a holding does not include an orchard, there can, therefore, be no consolidation of it. The proceeding under the Act can or ought to be taken to effect consolidation of holdings for the purpose of better cultivation of lands. We are of the opinion that this purpose is not served in relation to an orchard, as such, neither the suit nor the appeal abates under Section 4 (c) of the Act. The preliminary point of the appellants, therefore, fails."