Partition suits are hit by Sec. 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, and are subject to abatement.

Binod Kumar Roy, J.

1. This is plaintiffs revision application against an order holding that the suit in question is hit by provisions of Sec. 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act).

2. The facts are short and simple.

3. The suit in question was filed for partition in 1961 by the petitioners (and one Mostt. Siya Kuer original plaintiff No. 1 who died during the pendency of the suit and her name was expugned vide order, dated 16.9.1985) for their two annas and odd share and also for a direction to an Advocate-Commissioner to allot the lands sold out and mortgaged by co-sharers to the patti of that co-sharer, etc.

4. The defendants filed a petition under Sec. 4(c) of the Act for passing an order of abatement of the suit on the ground that the plaintiffs have filed a case before the Consolidation Officer, Riga, after commencement of consolidation operations for similar reliefs. It was further stated that in Second Appeal No. 228 of 1975 arising out of the same suit, this Court has held that the suit and the appeals, all abated under the aforementioned Act.

5. The plaintiffs disputed the claims of the defendants stating that due to their deliberate mischief the suit could not be disposed of, that before High Court a question of abatement under Order XXII of the Code of Civil Procedure had arisen and not that the question of provisions of Sec. 4(c) of the Act had arisen and that suit in question was well within the purview of the Act because in it matters relating to geneology etc., are involved.

6. The court below heard the parties and by the impugned order held that since the suit in question is purely partition suit and thus is hit by the provisions of Sec. 4(c) of the Act. It also has took into account non-filing of any order passed by this Court in the second appeal holding that the suit and connected appeal stood abated.

7. Mr. Mahendra Prasad Sinha, learned Counsel appearing for the petitioners argued that the entire lands which are subject-matter of the suit, were not subject-matter of the consolidation proceedings. In this context he relied upon two documents the first one purports to be an application filed by the petitioners before the Consolidation Officer seeking information about the nature of the lands and the second one is an information supplied to them by the Consolidation Officer, (copies of which were attached as Annexures 1 and 2 to the Civil Revision Application) and argued that the entire suit lands were not lands defined under Sec. 2(9) of the Act and hence, the order needs interference in revision.

8. From perusal of the plaint of the suit, it appears that the nature of the lands has not been mentioned therein and that the questions raised by the plaintiffs are squarely covered under Sec. 8(A) of the Act which provides partition of joint holdings as also under Sec. 10 of the Act which permit filing of an objection disputing correctness of entry in the record or rights as well as in the map or registered prepared under Sec. 9 of the Act. The documents (Aunexures 1 and 2) to the Civil Revision Application are undated. Further, it does not appear from the perusal of Annexure-1 as to what was the stand of petitioners in regard to the lands mentioned therein before the Consolidation Officer. To me, it appears that the petitioners simply wanted an information from the Consolidation Officer, Riga as to which lands mentioned by them are Firni, Dhannar, Gaachh, Boans, Gharari and Kharor. From Annexure-2, it appears that the Consolidation Officer had certified on the basis of certain reports submitted by the Incharge Amin and the Assistant Consolidation Officer that survey plot No. 1841 is Firni, plot No. 2900 is Baans Gachh and Kharor, plot No. 2970 is Gharari, etc. It does not appear from Annsxure-2 that any notice was given to the opposite parties herein. It also does not appear from the certificate that the aforementioned