D. P. Sinha, J.

This appeal has been preferred against the judgment and decree dated the 3rd October, 1972 passed by the Second Addl. Subordinate Judge of Muzaffarpur in Title Partition Suit No. 44/41 of 1965/70. The appellants were the defendants first party to the suit. The respondents first party were the plaintiffs. The plaintiffs had prayed for a declaration of their title and recovery of possession with respect to lands specified in schedule IV of the plaint having an area of 3 bighas 19 kathas which had been held in a proceeding under Section 145 of the Code of Criminal Procedure between the parties to be in possession of the appellants by an order dated the 3rd January 1965. It was alleged that as a result of that order the plaintiffs had also prayed, in the alternative, for a decree for partition of the lands mentioned in schedule V of the plaint and for allotment of a separate takhta to them in respect of their share amounting to 2/9ths therein and a share to the extent of 5/6ths in a jack fruit tree standing on plot no. 22. The suit has been decreed in full.

2. The defendant appellants has raised the plea of non-maintainability, previous partition and resjudicata. It is not necessary to set forth the details of the cases of the parties for the present purpose. It has been contended on behalf of the appellants that in view of the provisions of Section 4 (1) (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as "the Act") the appeal stands abated as a notification under Section 3 (1) of the Act, has been issued declaring the intention of the State Government to make a scheme for consolidation of holdings in the area in which the lands in the suit are situate.

3. Section 3 (1) of the Act, provides as follows:

3. Declaration by State Government of its intention to make scheme for consolidation of holdings:

(1) With the object of effecting consolidation of holdings in any area, the State Government may, after such enquiries as it may deem fit, by notification in the official gazette declare its intention to make a scheme for consolidation of holdings in that area."

The effect and consequences of publication of the notification under Sub-section (1) of Section 3 are provided in Section 4 of the Act, the provisions of which, relevant for the present purpose are as follows:

"(1) Upon the publication of notification under Sub-section (1) of Section 3 in the official gazette, the consequence, 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.

(a) x x x x

(b) no suit or other legal proceedings in respect of any land in such areas shall be entertained in any court and in calculating period of limitation applicable to such suits and proceedings such period shall not be counted provided.

(c) every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or interest in any 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 also that no such order shall be passed without giving to the parties notice by post of any other manner that maybe 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 there