BASGIT DASAUNDHI Vs. HARAKH DASAUNDHI

JUDGEMENT

(1.) This application in revision by the plaintiff is directed against the order of 4th Additional Subordinate Judge dated 5-8-1978 in which it was held and declared that Title Suit No, 242 of 1964, out of which had arisen Title Appeal No. 46/36 of 1969/1977 had abated by virtue of the provisions of Section 4 (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act 1956, (hereinafter called 'the Consolidation Act').

(2.) The petitioner instituted Title Suit No. 242 of 1964 against the opposite parly for the latter's eviction from a portion of a house standing over plot No. 195 in village Tenua, Police Station Nokha, district Rohtas as also for a decree for arrears of rent. The trial Court decreed the suit. The defendants (opposite party) being aggrieved, by the judgment and decree of the trial court filed Title Appeal No. 46/36 of 1969/1977. While the appeal was pending before the 4th Addl, Subordinate Judge, the petitioner, (respondent in the court below) filed an application praying for a declaration by the lower appellate court that the appeal had abated in terms of Section 4 (c) of the Consolidation Act, The opposite party (appellants in the court below) filed rejoinder and contended that since the eviction of the defendants was the subject matter of the suit it did not fall within the mischief of Section 4 (c). Before the respondent's petition and the appellants' rejoinder could be disposed of, the petitioner filed another petition for withdrawal of his earlier petition in respect of abatement of the appeal. The learned Additional Subordinate Judge heard the parties and rejected the prayer for withdrawal of petition of the plaintiff respondent by order dated 5-8-1978 and passed orders holding that the suit out of which the appeal had arisen had abated by virtue of Section 4 (c) of the Consolidation Act. The suit and the appeal thus stand abated. The petitioner being aggrieved by order of the learned Subordinate Judge has moved this Court by the present application for setting aside the impugned order dated 5-8-1978.

(3.) Learned Counsel for the petitioner contended that the Consolidation Act did not come into operation on the facts and circumstances of the instant case and therefore, the inpugned order was without jurisdiction and liable to be set aside. The submission of the petitioner was that a suit in respect of homesteads remains unaffected by Section 4 (c) of the Consolidation Act despite the continuance of a consolidation proceeding. Section 4 (c) of the Consolidation Act reads as follows :--