The main legal principle established in the judgment is that homestead, orchard, graveyard, and other such lands are exempted from the provisions of Section 4(b) or 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, once the consolidation proceedings have crossed the stage of Section 10.

1. This is an application by defendant in a Title Suit against an order by which his application purporting to be under section 4(b) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act) has been rejected. In other words, he is aggrieved by the order of the trial Court holding that the suit is maintainable notwithstanding the provisions of Section 4(b) of the said Act.

2. I have heard both the parties. Sri Keshav Shrivastava, Senior counsel appearing in support of this application has submitted that notwithstanding the fact thai the land in question was a homestead land in terms of Section 4(b) read with the definition of land as given under section 2(9). So long as a notification under section 26A was not issued in a consolidation proceeding, the suit was not maintainable.

3. On the other hand, on behalf of the plaintiff-Opposite Party it was submitted that in view of the fact that consolidation operation had crossed the stage of Section 10 the bar under section 4(b) or for that matter under section 37 would not operate in respect of homestead land. Sri Srivastava, learned counsel has relied on a Division Bench Judgment of this Court since reported in 1985 P.L.J.R. Page 152 and 1995(2) P.L.J.R. Page 750 wherein it has been held that the definition of expression "Land" under Section 2(9) of the Act is unrestricted. It covers not only agricultural land but also homestead lands, orchard, graveyard and others. If that be so, then by virtue of Section 4(b) so long as the consolidation proceedings do not end it can only be done by section 26A notification. Section 4(b) would operate and similarly Section 4(c) would operate. On the other hand, learned counsel for the plaintiff-opposite party has relied on a Division Bench Judgment of this Court since reported in 1983 B.B.C.J. page 376 wherein it has been held that there is distinction between the land in general and land for the purpose of abatement of proceedings. It has been held that so far as homestead lands are concerned the proceedings wouid not abate. Similar is the view taken in 1993(2) P.L.J.R. page 771.

4. I have considered the argument of both the sides. To me, it appears that once a notification is issued under section 3 in respect of any area then the bar under section 4 would operate in respect of all lands irrespective of its nature but this bar does not extend once the proceedings have crossed the stage of Section 10. After that stage homestead, orchard, graveyard and other such lands which cannot be shifted forthe purpose of amalgamation/consolidation they are exempted from the rigours of Section 4(b) or 4(c) for that matter. The reason is that upto the stage of Section 10 the consolidation authorities are preparing and revising revenue records by surveying the area in consolidation proceedings. Therefore, even homestead land, orchard, graveyard etc. get covered under consolidation operation but once the survey is complete then scheme or plan for consolidation of agricultural holdings are published and therefore all other proceedings are only in relation to agricultural holdings which are then transferred for the purpose of consolidation. Other holdings like orchard, homestead, graveyard etc. are to be left untouched. It is for this reason that it is said that the provision of Section 4(b) or 4(c) would not apply to homestead etc. I am fortified with the decision of this Court since reported in 1995(2) P.L.J.R. page 710 wherein S.N. Jha, J. (as he then was) has noticed this very scheme in para 5 thereof. This is consistent with the other two decisions referred to by the learned counsel appearing for the opposite parties. No judgment has been cited which has taken a different position that right from the time when Section 3 notification is issued no suit can either be instituted or suits already instituted wouid abate in respect of all lands comprise in the notification under section 3 of the Act