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 construc