Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19371 of 2011 ====================================================== 1. Muneshwari Devi Wife Of Late Baiju Sahi Village Barkagaon P.S. Karja, Distt. Muzaffarpur 2. Ram Babu Sahi Son Of Late Baiju Sahi Village Barkagaon P.S. Karja, Distt. Muzaffarpur 3. Ranjit Kumar Sahi Son Of Late Baiju Sahi Village Barkagaon P.S. Karja, Distt. Muzaffarpur 4. Sunil Kumar Sahi Son Of Late Baiju Sahi Village Barkagaon P.S. Karja, Distt. Muzaffarpur 5. Ansu Kumar Sahi Son Of Ram Swararth Sahi Village Barkagaon P.S. Karja, Distt. Muzaffarpur 6. Rama Kant Singh Son Of Dineshwar Singh Resident Of Village - & P.O. Chandanpatti, P.S. Kurhani District - Muzaffarpur .... .... Petitioner/s Versus 1. Kanhaiyalal sharma Son Of Govind Narain @ Nanhka Maharaj Village Barkagaon P.S. Karja, Distt. Muzaffarpur Presently Residing At Galli Jhagaon, P.S. Chant District - Patna 2. Prabhat Kumar Son Of Motilal Village Barkajaon P.S. Karja P.O. Barkagaon District Muzaffarpur At Present Residing At Mohalla Kachauri Galli Jhauganj P.S. Chowk, Distirct Patna 3. Pramod Kumar Son Of Motilal Village Barkajaon P.S. Karja P.O. Barkagaon District Muzaffarpur At Present Residing At Mohalla Kachauri Galli Jhauganj P.S. Chowk, Distirct Patna 4. Abhishek Kumar Bhardhraj Son Of Chuni Lal Village Barkajaon P.S. Karja P.O. Barkagaon District Muzaffarpur At Present Residing At Mohalla Kachauri Galli Jhauganj P.S. Chowk, Distirct Patna 5. Abhishek Kumar Bhardwaj Son Of Narendra Kumar Bhardwaj Village Barkajaon P.S. Karja P.O. Barkagaon District Muzaffarpur At Present Residing At Mohalla Kachauri Galli Jhauganj P.S. Chowk, Distirct Patna 6. Suman Kumar Daudiyal Village Barkajaon P.S. Karja P.O. Barkagaon District Muzaffarpur At Present Residing At Mohalla Kachauri Galli Jhauganj P.S. Chowk, Distirct Patna 7. Raj Kumar Daudiyal Village Barkajaon P.S. Karja P.O. Barkagaon District Muzaffarpur At Present Residing At Mohalla Kachauri Galli Jhauganj P.S. Chowk, Distirct Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Yogendra Pd. Sinha No. I Mr. Nirmal Kumar Sinha No. 3 For the Respondent/s : Mr. Kali Das Chatterji, Sr. Advocate
Legal Reasoning
Mr. Amlesh Kumar Verma Mr. Amaresh Kr. Sinha ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER Patna High Court CWJC No.19371 of 2011 (3) dt.13-09-2013 P2/4 3 13-09-2013 The petitioners are defendants No. 10 to 14 and 19 in Partition Suit No. 127 of 2007 which is pending in the Court of Sub-Judge-IX, Muzaffarpur. They are aggrieved by an order dated 07.06.2011 passed by the Court below, whereby it has rejected an application filed by the petitioners for abatement of suit under the provisions of Section 4(b) and 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as ‘the Act’). Learned counsel for the petitioners submits that notification under Section 3 issued under ‘the Act’, is in operation in the area and, therefore, the suit seeking partition should have been ordered to be abated on an application filed by the petitioners but the Court below wrongly rejected the application seeking abatement under Section 4(c) of ‘the Act’, merely on the ground that issues had been framed in the suit. He submits that the Court below passed the impugned order on erroneous consideration and is, therefore, fit to be set aside. 2. Learned senior counsel appearing on behalf of the Respondents No. 1, 2, 3, 6 and 7, who are the plaintiffs before the Court below, submits on the other hand that the Court below rejected the application for abatement under Section 4(c) of ‘the Act’, basically on the ground that the nature of the suit land i.e. whether they were agricultural or homestead land, was in serious Patna High Court CWJC No.19371 of 2011 (3) dt.13-09-2013 P3/4 controversy. In such view of the matter, according to him, the Court below has rightly proceeded to decide this disputed question of fact first, along with the other issues. 3. He submits that Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 does not contemplate automatic abatement of a suit with issuance of notification under Section 3 of ‘the Act’. He contends that a suit would abate only upon an order being passed in that behalf by the concerned Court in view of the publication of notice under Sub- section (1) of Section 3 of ‘the Act’. He submits that provisions of the Act are applicable to agricultural land only and in a case where there is controversy over nature of the land, the Court, before passing an order under Section 4(c) is required to decide this controversy first. He submits that without there being concrete evidence as regards the nature of the suit land, the Court would not be in a position to pass an order under Section 4(c) of ‘the Act’, which would certainly be a judicial order. 4. From the impugned order it appears that the Court below has not held that the suit would not abate in the facts and circumstances of the case. The Court has rather recast the issue earlier framed and has added the issue as to whether the suit is barred by Section 4(b) and 4(c) of ‘the Act’. The Court has rightly Patna High Court CWJC No.19371 of 2011 (3) dt.13-09-2013 P4/4 proceeded to decide first the fact as regards the nature of the land in dispute, before passing an order under Section 4(c) of ‘the Act’. 5. Learned senior counsel for the contesting Respondent has rightly placed reliance upon a Division Bench judgment of this Court reported in 1979 BBCJ 738 (Ram Pratap Mahto & Ors. Vs. Diplal Mahto & Ors.,) wherein it has been held that where controversy arises as to whether a suit property is homestead or not, the Court would have to decide this controversy before applying the provisions of Section 4(c) of the Act. 6. In view of the above, I do not find any infirmity in the impugned order. The impugned order does not require interference therefore. 7. It will however be open to the petitioners to raise the aspect afresh, once the Court decides the issue as regards the nature of the suit property. 8. This application is accordingly disposed of with the observation as aforesaid. Saif/- (Chakradhari Sharan Singh, J.)