A suit for cancellation of a deed of partition and permanent injunction does not abate under section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. The jurisdiction to decide such a suit lies with the Civil Court and not the consolidation authority.

Binod Kumar Roy, J.

By the impugned order, the petitioners' (who are defendants 1st and 2nd parties in the suit) petition dated 27th January, 1988 filed for passing an order of abatement of the suit under the provisions of section 4 (c) (wrongly mentioned as 4 (1) (c) in the impugned order) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act) has been rejected.

2. It appears from the perusal of the plaint (appended as annexure-1 to the revision application) that the suit in question was filed for the following reliefs;-

(i) It be declared that the deed of partition dated 17.9.83 amongst the defendants inter se is merely a voidable document, which is liable to be cancelled and the same is not binding on the plaintiffs (ii) The defendants be permanently injuncted from interfering with the possession of the plaintiffs with their half share in the lands of Khesra no. 1094, appertaining to khata no. 250 of village Pirata and (iii) the plaintiffs be awarded costs of the litigation.

3. In the plaint, it has been asserted that it has become necessary to get the defendants restrained from interfering with the possession of the plaintiffs and thus the necessity of the institution of the instant suit had arisen, more an when the plan tiffs feel that they cannot avoid the document in question.

4. Sri Madhusudan Singh, learned counsel appearing for the petitioner placed reliance on a Division Bench Judgment of this court in Mirza Sulaiman v. Harihar Mahto, reported in 1985, B.B.C.J. 335: 1985 PLJR 152 for the purpose that even a Kabristan comes within the ambit of the wide sweep of the definition of the word 'land' under the Act in question, whereas in the instant case, on the lands in question it has been asserted that there is Bathan, Bhusaul, Nad and Khuata and accordingly the court below has acted illegally and with material irregularity in holding that the suit in question does not abate. He further states that even the deed of partition is a document evidencing only inter se partition amongst the defendants and is not at all binding on the plaintiffs and thus a void document which the plaintiffs can collaterally challenge and thus the consolidation authority alone has got the jurisdiction to decide the controversy or the reliefs claimed by the plaintiffs.

5. Sri K.K. Sinha, learned counsel appearing for the opposite parties, on the other hand contends by placing reliance on a Full Bench decision of this court in Sheoratan Chamar V. Ram Murat Singh, reported in 1985 P.L.J.R. 86 and a Single Judge Judgment in Bibi Sobaratan v. Md. Kamaluddin, reported in 1985 P.L.J.R. 878, to support that in the facts and circumstances Civil Court alone has jurisdiction to decide the controversy raised and the reliefs claimed in the plaint.

6. It would be relevant to consider the deed of partition dated 17.9.83, which is the subject matter of the controversy between the parties. The original deed has been produced before me, from perusal of which it appears that this document has been executed describing petitioners 1 and 2 as 1st party no. 1 and petitioners 3, 4, and 5 as Second party no. 2 describing all of them as Mokiraan. It is thus crystal clear that the plaintiffs are not parties to this document and thus it is not binding on them at all and there is substance in the argument of Mr. Singh that it is a void document so far as the plaintiffs are concerned. However, in their wisdom the plaintiffs moved the court below for its cancellation.

7. It is the settled law that no jurisdiction has been vested in the consolidation authority to pass a decree cancelling such type of document and accordingly it is clear that the Civil Court alone has jurisdiction. Further the suit in question is also for grant of permanent injunction, which appears to be real cause of action and the real relief claimed by the plaintiffs. The plaintiffs, as rightly argued by Mr. Singh, can collaterally challenge th