Orchard excluded from the definition of 'land' and 'holding' under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 - No consolidation proceeding can or ought to be taken with respect to an orchard - Suit and appeal, therefore, cannot abate.

S. S. Sandhawalia, C. J. and S. B. Sanyal J. - The defendants have preferred this appeal against the concurrent JUDGMENT :s of the two courts below declaring that the Kebala executed by the Shebait on 17.7.1956 is null and void and invalid. Consequently the deceased defendant no.1, the vendee, had not acquired any title and the same is neither binding on the deity nor on the Asthal.

2. The suit land comprising Schedule 1 (a) and Schedule 1 (b) to the plaint is admittedly an orchard.

3. When the case came up for hearing before a single Judge, Mr. Sudhir Chandra Ghose, Senior Advocate, took a preliminary point that in view of section 4 (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, hereinafter referred to as 'the Act', the suit and the appeal have abated in consequence of the notification dated 6.9.1975 issued under section 3 of the Act whereupon the case was referred to a Division Bench for an authoritative decision whether the suit in relation to an orchard also abates under the provisions of the Act.

4. It has been necessitated to state the facts out of which the second appeal arises be causes Mr. S. C. Ghose, learned counsel appearing for the appellants, has pressed before us the appeal on merit as well. There is an Asthal known as Asthal Sri Rangniwas in Mohalla Mogalpur, Ayodhya, district Faizabad, in the State of U. P. One Sri Promod Ban Bihari Saran Jee, a Virakta Vaishnav of Ramanandi Subject, founded the said Asthal. One of the branches of the said Asthal is at village Miraspur, tola Gopalpur, P.S. Dalsingsarai, in the district of Samastipur within this State. The suit orchard is situate at Samastipur. Sri Promod Ban Bihari Saran lee had three disciples, namely, Ram Bihari Saran, Satrughan Saran and Sukhram Das. Sri Promod Ban Bihari Saran Jee continued to be the Mahanth of the Asthal till his death some time in 1921 and the Asthal was ultimately succeeded by Sukhram Das, the original defendant no. 2, who executed the impugned sale deed purported to be for legal necessity. The land comprising Schedule 1 (a) was donated by one Kamla Prasad Singh under a Sanad dated the 13th of Shravan 1293, that is, some time in the year 1886 and Sri Promod Ban Bihari Saran lee in his turn created a registered trust on the 4th of 'June, 1893, of the said property for the benefit of the deity. Further lands were acquired by Sd Promod Ban Bihari Saran Jee out of the funds of the trust, which is Schedule 1 (b), and both were amalgamated and converted into an orchard. The last Mahanth Sukhram Das who was original defendant no. 2, sold the entire suit land situate within the State of Bihar by virtue of a registered sale deed dated 17.7.1956 in favour of Awadh Rai, the original defendant no. I. of course after taking permission from the Bihar Hindu Religious Trust Board to ratify the transfer. One Dhanusdhari Singh, brother of the present plaintiff, instituted Title Suit No. 120 of 1957 in the court of the Subordinate Judge, Samastipur, for declaring the sale deed as void for various reasons including the lack of legal necessity. The Bihar Hindu Religious Trust Board at a subsequent stage came to be impleaded as a plaintiff to the said suit and it ultimately compromised the suit with the original defendant no. 1 in spite of the objection of Dhanusdhari Singh and the suit was disposed of in terms of compromise overruling the objection of the original plaintiff. Dhanusdhari Singh preferred an appeal before this Court and this Court held that the suit was not maintainable in the court of the Subordinate Judge as also lack of sanction under section 48 of the Bihar Hindu Religious Trusts Act, hereinafter referred to as "the Bihar Act". The compromise was held to be unlawful and the same was also set aside. The JUDGMENT : of this Court is reported in 1967 B. L. J. R. 656 (Dhanusdhari Prasad Singh v. Awadh Rai).

5. The plaintiff in the instant suit claimed the suit land to be an endowed property. The bra