S.S.SANDHAWALIA, J.

1. Whether a Kabaristan is within the ambit of the wide sweep of the definition of land in sec. 2(9) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter to be referred to as the Consolidation Act) is the significant question necessitating this reference to the Division Bench.

2. The petitioner, Mirza Sulaiman Beg and others had instituted a Title Suit in their individual as well as representative capacity on behalf of the Muslim public for the alleged removal of encroachment made by the defendants and others over a portion of a Kabaristan situated in Muradabad Kalan and for restraining the defendants from interfering with the land or the trees thereon. It was averred that the aforesaid land is a very old Kabaristan and the dead bodies of the Muslims residing in the localities were being buried therefrom time immemorial. On this premise, it was the stand that the same was not agricultural land within the meaning of the Consolidation Act. In contesting the suit, the defendants in the written statement pleaded, inter alia, that they had taken a settlement of ten decimals out of the disputed plot of land and constructed a house and other appurtenance thereon and further denied the Kabaristan - character of the plot. On the 25th of April, 1978, defendant No. 2 filed a petition claiming that the suit had abated in view of the notification under S.3 of the Act with respect to the area in which the plot of land is situated. The petitioners in rejoinder to the said petition took the stand that the land in question was outside the purview of the Consolidation Act and, therefore, S.4(c) of the Act was inapplicable. By the impugned order dated the 24th of Jan. 1979, the learned Additional Munsif, Sasaram, without adverting in detail to the character of the land, was Kabaristan and whether the same would be the land within the meaning of S.2(9) of the Consolidation Act, proceeded to hold on the basis of the notification that the suit was hit by S.4(c) and ordered that the same stood abated.

3. This civil revision originally came up before my learned brother Sharma, J. sitting singly. Before him, the learned counsel for the parties relied on Ss.2(9), 4(c) and 11(3) of the Consolidation Act to buttress their respective stand. Considering the significance of the question, the matter was referred to be decided by a larger Bench.

4. Inevitably the issue herein has to be considered in the light of the language of the Statute. What herein calls for pointed notice are the provisions of Ss.2(7), 2(9) and 11(3), which may be quoted in extenso for facility of reference : -

"2. Definitions - In this Act, unless there is anything repugnant in the subject or context - xxx xxx xxx

(7) Holding means a parcel of parcels of land held by a raiyat and forming the subject matter of a separate tenancy;

xxx xxx xxx

(9) Land means agricultural land, and includes horticultural land, Kharaur land, land with bamboo clumps, pasture land, cultivable waste land, homesteads, tanks, wells and water channels;"

"11. Preparation of Draft Scheme - (3) For the purpose of sub-section (1), it shall be lawful for the Assistant Consolidation Officer - (i) to declare that any land specifically assigned for any public purposes ceases to be so assigned and to assign any other land for such public purposes : Provided that it shall not be lawful for the Assistant Consolidation Officer to direct that any land specifically assigned for cremation ground or other religious purposes shall cease to be so assigned unless it is approved by the Village Advisory Committee;"

5. Learned Counsel for the petitioners had primarily pressed his contention that land under a Kabristan was not agricultural land, and, would, therefore, stand out of the definition under S.2(9) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act). On this premise it was further contended tha