JUDGMENT
Birendra Prasad Sinha and B.P. Griyaghey, JJ.
1. This application by the plaintiffs is directed against an order dated 9-6-1978 passed in Title Suit No. 46 of 1975 by Munsif, Banka.
2. The plaintiffs filed a suit for declaration that the entry of the name of the defendants in the recent records-of-rights in respect of 2 decimals of land bearing plot No. 603 and new khata No, 302 situated in village Garibpur, police station Amarpur in the district of Bhagalpur was illegal and void. They also prayed for a declaration that they had right, title and possession over the said piece of land.
3. Shortly stated the plaintiffs case is that originally one Sheikh Ulfat Mian held and possessed 7 decimals of homestead land under old khata No. 121, old plot No. 201 In village Garibpur fully described in Schedule A of the plaintiff. After his death, his son Sheikh Ashraf Ali transferred the said land of Schedule A to Sheikh Joshar AH, father of the plaintiffs by means of a registered Kebala dated 16-3-1983. Sheikh Joshar Ali constructed a pucca house consisting of 4 rooms with a bungalow and kitchen over the lands described in Schedule A and the remaining Parti land was covered by a boundary wall and was used as Sahan. After the death of Sheikh Joshar Ali sometimes in the year 1972 the plaintiffs came in exclusive possession of the said property, During the recent survey operations, the defendants 1st party are alleged to have got their names illegally recorded in respect of 2 decimals of Schedule A land with which they had really no concern.
4. The defendants 1st party filed on application on 25-4-1978 stating, inter alia, that consolidation operations had started in the area and the suit of the plaintiffs had abated under Section 4(c) of Bihar Consolidation of Holdings and Prevention of Fragmentation Act 1956, On behalf of the “plaintiffs it was urged that the land in question was a Parti homestead and therefore, the suit could not abate under the provisions of Section 4(c) of the Act.
5. The learned Munsif after hearing the parties ultimately held that Section 4(c) of the Act was also applicable to the suit lands and therefore, according to him the suit abated. A formal order in that connection was, therefore, passed.
6. Mr. Binod Krishna Jha, learned Counsel for the petitioners has submitted that the suit lands are in fact unconnected with any agricultural operation and, therefore, in terms of Section 3 of the Act such homestead lands are really not covered by the present Act. It was on this question that this civil revision application has been referred to a division bench.
7. Land has been defined in Section 2(9) of the Act and it reads thus:
“Land” means agricultural land and includes horticultural land. Kharaur land, land with bamboo clumps, pasture land, cultivable water land, homesteads, tanks, wells and water channel;
On the face of it homesteads are also included within the meaning of land. Apparently, therefore, it cannot be said that homesteads as such are not covered by the provisions of this Act. This is what has been held by two bench decisions of this Court in the case of Ram Pratap Mahto v. Diplal Mahto 1979 B.B.C.J. 738 and in the case of Munsi Pasi v. Thakur Seth .
8. In the case of Ram Pratap Mahto (supra) on which great reliance has been placed by the learned Counsel for the petitioners it was pointed out that homestead was certainly land within the meaning of the Act but only such homesteads would fall within the ambit of the Act as were associated with agricultural operation. Homesteads which were unconnected with the agricultural operation would not fall within the meaning of expression land. In the ease of Munsi Past (supra) the question for consideration was whether a water channel was also covered by the provisions of this Act. On a parity of the decision in the case of Ram Pratap Mahto (supra) another bench of this Court held that water channel also must have relevance to some agricultural operation in order to constitute land. The water channel in respect of which the suit had been filed in the case of Munsi Pad (supra) was in fact to drain water from houses and it was found that in respect of such channels a suit would not abate under Section 4(c) of the Act.
9. We have examined the application filed in the suit. Paragraph 4 of the application reads thus;
That the said Sheikh Joshar Ali has constructed a pucca house consisting of four rooms with a bungalow and kitchen over the said land of Schedule A and on the Parti land the said Sheikh Joshar Ali had constructed a boundary wall around the Schedule A land. The Part 1 land of the same is used as Sehan.
In view of this pleading, it cannot be said that the suit land is in any way connected with the agricultural operations. The object of the present Act as stated in Section 3 is to effect consolidation of holdings for the purpose of better cultivation in any area. It is obvious on the pleadings in the case that the suit land is not connected with any agricultural operation. It must be reiterated once again that all homesteads are not beyond the purview of the general scheme of this Act but such homesteads as are not connected with agricultural operations do not come within the ambit of this Act. In the present case the suit land does not seem to be connected with the agricultural operations and, therefore, in our opinion, it is not hit by Section 4(c) of the Act.
10. It has been observed in the case of Ram Pratap Mahto (supra) that the Government will be well advised to consider the advisability of excluding homestead from operation of consolidation scheme. We feel inclined to reiterate this observation in the present case also for the same reasons as stated in the case of Ram Pratap Mahto (supra).
11. The result is that the civil revision application succeeds and the impugned order dated 9-6-1978 passed in Title Suit No. 46 of 1975 is set aside. There shall, however, be no order as to costs.