JUDGMENT
S.K. Choudhary, J.
1. This revision under Section 115 of the Civil Procedure Code has been filed by the plaintiff against an order dated 17.12.1977 passed in title suit No. 83 of 1956/4 of 1977 by the 1st Addl. Subordinate Judge, Rajipur, holding that the title suit has abated under Section 4(c) of Bihar Consolidation of Holding and Prevention of Fragmentation Act 1956 (Bihar 22 of 1956)(hereinafter to be called as the said Act).
2. It appears that the plaintiff-petitioner has filed the aforesaid title suit, inter alia, for the relief for a declaration that the property of Schedule I of the plaint is the property of Amgola Math and that neither Dharam Dass nor Mahanath Hari Das had any right to permanently settle the suit lands and for a further relief for recovery of possession and means profits. When the evidence in the said suit was going some of the defendants opposite party filed an application on 23.11.1977 under Section 4(c) of the said Act with a prayer.
That the suit has abated under the Provision of Consolidation Act. An objection was filed to the effect that the suit has not abated.
3. Mr. S.C. Mukherjee learned Counsel appearing for the petitioner, fairly conceded that the impugned order so far as it relates to all the lands other than orchard and the Math cutcherry building have abated and therefore he would not challenge the impugned order so far as those lands are concerned. He has challenged the abatement order in relation to the orchard lands and the Math cutcherry building. It is said that the Math building is situated over plot No. 281.
4. In support of his argument the learned Counsel has relied upon the provisions of Explanation (i) of Sub-clause (2) of Section 2 of the said Act which defines “Consolidation Sub-clause (i) of the said Explanation includes” land which orchard or grove in the agricultural year immediately preceding the year in which the notification under Section 3 was issued for the holding. He therefore, contended that the suit related to the lands which are orchard within the meaning of this Sub-clause (i) of the said Explanation has not abated. He also contended that Sub-clause (9) of Section 2 which defines ‘land’ includes-homesteads’. Learned counsel, therefore contended that the suit in relation to the Math cutcherry building if unconnected with the agricultural operation. Would not abate.
5. It further appears that the lower Court records were not called for in this case and therefore, neither the plaint nor any other document is available before this Court in order to find out as to what are the lands which are orchard and whether such lands which are orchard and whether such lands which are claimed to be orchard, comes under Explanation (i) of Sub-clause (3) of Section 2 of the said Act. It is also not possible to know as to whether the Math Cutcherry building is unconnected with the agricultural operation. In absence of the materials before this Court it is not possible to come to any conclusion with regard to the lands which are claimed to be orchard and with regard to the building which is claimed to be Math cutcherry building which can be said to be unconnected with the agricultural operation. It further appears that the major defendants have not appeared to contest this revision application inspite of the service of notice upon them, and only some of the minor defendants respondents have appeared through D.R. Guardian advocate of this Court who is present Learned Counsel appearing for the Bihar State Board of Religious Trust, Patna, who is respondent No. 63 is also present but he says that the Board (Respondent No. 63) is merely a proforma defendant in the suit.
6. On the facts and in the circumstances of the case, mentioned above, there is no other alternative but to remand the matter to the Court below. The Court below will now examine as to what are the lands out of the suit property which can be said to be orchard lands within the meaning of Explanation (i) of Clause (3) of Section 2 of the said Act and whether the building in question which is claimed to be Math cutcherry building comes within deflation of ‘Land’ as defined in Sub-clause (9) of Section 2 of the said Act. The Court below after hearing the parties will pass necessary orders in accordance with law in relation to the aforesaid properties. How ever the order of abatement in relation to the rest of the properties is affirmed.
7. In the result the revision application is allowed to the extent indicated above. As the major defendants have not appeared to contest this application there will be no order as to costs.