MATHURA RAM Vs. VIJAY KUMAR DIXIT

JUDGEMENT

(1.) HEARD counsel for the parties.

(2.) BY the impugned order an application of the defendant -petitioner dated 12.4.2006 has been rejected holding that the Title Suit No. 188 of 1996 would not abate under the provisions of Section 4C of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act). Counsel for the defendant -petitioner submits that there is apparent jurisdictional error in the impugned order, inasmuch as, the same land when it was made subject matter of Title Suit No. 58 of 1984, between the same parties or their predecessor in interest, an application filed by the plaintiff -opposite party who was then the defendant in Title Suit No. 58 of 1984 claiming the suit to have abated under Section 4C of the Act, was allowed by the trial court and this Civil Revision Application filed against such suit being Civil Revision No. 1251 of 1985 was dismissed by this Court affirming order of abatement under Section 4C of the Act. It is thus contended that when the present suit, Title Suit No. 188 of 1996 was filed by Vijoy Kumar Dikshit son of Shivendra Nath Dikshit for the same land, an application was filed by the defendant -petitioner on 12.4.2006 for abatement of the suit, the same could not yield different result and the view taken by the court below would in fact amount to sitting over the judgment of this Court.

(3.) COUNSEL for the opposite party does not dispute the factual aspect, but then by referring to paragraph 12 of the plaint he has contended that the suit lands were actually homestead land and not agricultural land and as such provision of Section 4C of the Act could not have been made applicable. He has thus defended the impugned order rejecting prayer of the petitioner for abatement of the suit.