Homestead lands are covered by the provisions of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 and a suit pending in the civil court in respect of such lands will abate under Section 4 (4) of the Act.

P. K. MOHANTI, J.

( 1 ) THESE two appeals have been heard together and will be disposed of by this common judgment.

( 2 ) FIRST Appeal No. 29 of 1970 and First Appeal No. 42 of 1970 have been preferred by defendant No. 1 and the plaintiff respectively against a preliminary decree for partition.

( 3 ) DURING the pendency of the appeals, the suit lands came under consolidation operation by virtue of a notification issued under Section 3 (1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the 'act' ). The suit lands cover both agricultural and non-agricultural lands. The learned counsel appearing on behalf of the appellant in First Appeal No. 29 of 1970 contended that notification under Section 3 (1) of the Act having been issued in respect of the village where the suit lands are situate, the suit has to abate as a whole. The learned counsel appearing on behalf of the appellants in First Appeal No. 42 of 1970 on the other hand contended that the suit so far as it relates to homestead lands cannot abate. Reliance is placed on two single Bench decisions of this Court reported in (1976) 42 Cut LT 400 (Abhimanyu Panda v. Digambar Beura) and, AIR 1980 Orissa 183 (Musa Jena v. Panu Charan Naik) where both the learned Judges took the view that the homestead land does not come within the purview of the Act and on the publication of the notification under Section 3 (1) of the Act the suit in respect of such land cannot abate.

( 4 ) THE questions for consideration are whether homestead lands are covered by the provisions of the Act and whether a suit pending in the civil court in respect of such lands will abate under Section 4 (4) of the Act.

( 5 ) SECTION 4 (4) of the Act provides for abatement of suits and proceedings pending on the date when the notification under Section 3 (1) is published. It reads as follows:-

"section 4. Effect of Notification.--Upon the publication of the notification issued under Sub-section (1) of Section 3 in the Official Gazette, the consequences as hereinafter set forth, shall subject to the provisions of this Act, ensue in the consolidation area till the publication of notification under Section 41 or Sub-section (1) of Section 5, as the case may be-XX XX XX 4. every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceeding could be or ought to be started under this Act, which is pending before any Civil Court, whether of the first instance or appeal, reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending, stand abated: Provided that no such order shall be passed without giving the parties concerned an opportunity of being heard: xx xx xx"

Thus, it will be seen that for a suit or a proceeding pending in a civil court to abate, the following conditions must be satisfied:

(i) It must be for declaration of any right or interest in any land situate within the consolidation area. (ii) It must be for declaration of any right or interest in land in regard to which proceedings could be or ought to be started under the Act. (iii) It must be pending before any civil court whether of the first instance or appeal, reference or revision on the date of publication of the notification. (iv) The Civil Court in which the suit or proceeding is pending is to pass an order of abatement.

( 6 ) WHILE the above provisions deal with abatement of pending suits, the provisions of Section 51 bar the institution of suits in the Civil Courts. It provides as follows:-

"51. Bar of jurisdiction of Civil Courts:--Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions contained in Clause (3) of Section 4 and Sub-section (1) of Section 7 -- (1) all questions relating to right, title, interest and liability in land lying in the consolidation area, except those