UDAY SINHA, J.

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 Sec. 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 party for the latters 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 judgement 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 Sec. 4(c) of the Consolidation Act. The opposite parties (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 Sec. 4(c). Before the respondents 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 Sec. 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 impugned 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 Sec. 4(c) of the Consolidation Act despite the continuance of a consolidation proceeding. Sec. 4(c) of the Consolidation Act reads as follows :-

"(1) Upon the publication of notification under Sub-Section (1) of Sec.3 in the official gazette, the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified in the notification till the close of the consolidation operation, ensue in the area to which the notification relates, viz, xx xx xx xx

(c) every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or interest in and land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority, or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated : provided x x x x x x

Provided also that no such order shall be passed without giving to the parties notice by post, or in any other manner that may be convenient and after giving them an opportunity of being heard;

Provided further that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in disputes in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder"

4. From the provisio