Full Judgment
S.N. Pathak, J.
1. This Miscellaneous Appeal is directed against the order passed by Shri P.N. Shukla, 2nd Additional District Judge, Siwan, in,Miscellaneous case No. 4 of 1989 (Title Appeal No. 14/89). The impugned order was passed on an application dated 4-10-1989 preferred by Yogendar Yadav, one of the respondents before this Court, who was appellant in the appeal referred to above.
2. The relevant facts are that in the aforesaid appeal, there was an application filed by Yogendar Yadav earlier that the suit under appeal and the appeal both had abated because the subject-matter of the suit and the appeal were the subject-matter of Consolidation proceedings. The application was earlier rejected by the appellate Court. However, there was a review petition by Yogendar Yadav on 4-10-1989 and this was registered as miscellaneous case in which the impugned order has been passed. The Additional District Judge allowed the review petition and held that both the appeals and the suit had abated. The grounds taken in the review application were to the effect that in the earlier order certain papers which were already on record were not considered by the Court and certain decisions were not referred to. The Additional Judge opined that of course, the appellant before this Court (respondent of the first appeal) had not contended in the rejoinder to the abatement petition that the lands attached to the suit houses were not used for agricultural purposes. So, on this basis the Court held that When the Consolidation officers had taken cognizance of the suit lands it was not denied by the appellant before this Court that the suit lands were not agricultural lands, the suit and the appeal both had abated. The learned Judge also referred to certain decisions cited by the parties and held that these decisions referred to were well known principles that when the consolidation proceedings are on the subject matter of suit or appeal is covered by the consolidation proceedings and the suit and the appeal both must abate.
3. So far as the decisions referred to by the Additional Judge are concerned, it has to be noted that of course, there is well established principle of law that when the consolidation proceedings is on and the suit lands are notified to be taken under the consolidation proceedings the suit has to abate and when any appeal is pending that also must abate. But, the moot question is whether the suit lands were subject-matter of the consolidation proceeding and whether the consolidation officers had jurisdiction over the suit lands. It was submitted before me by the appellants' lawyer that it was none of the case of the parties that the suit lands were used for agricultural purposes. It was further submitted that on the suit land shops existed from before filing of the suit and it was not denied that the houses did not exist on the suit lands and simply because the plaintiff (appellant) in his rejoinder said that it was none of the parties case that the suit lands were agricultural lands, this reference did not amount to an admission that the suit lands were agricultural lands. The plaintiff(appellant) was not required to state in any positive statement that the land attached to the shops was not used for agricultural purposes. This omission on the part of the plaintiff did not amount to any admission that the lands attached to the shops were used for agricultural purposes. I am of the view that of course, this contention of the appellants' lawyer in this connection is correct. So far as the consolidation operations are concerned, the Act (Bihar Consolidation of Holdings and Prevention of Fragmentation Act, has clearly barred the inclusion of homestead lands including houses, orchards, horicultural lands, etc. from the operation of the Consolidation proceedings. The spirit of Consolidation Act is that scattered farming lands of an individual should be brought in one compact area to improve farming. In such a situation, the lands attached to the houses cannot be transferred from one place to the other in order to amalgamate farming lands of any individual nor can such lands be exchanged with other individuals in order to consolidate farming lands. So, if in the instant case, on the land existed certain shops and some open lands were attached to the same, I do not think that the lands concerned should be subject matter of consolidation. So, even if the Consolidation Officers brought the suit lands under the consolidation operation, I think that they had exceeded their jurisdiction and this act of theirs could not operate so as to abate the suit of the appeal. In such circumstances, neither the suit nor the appeal could abate. So, I am of the opinion that when the Additional Judge reviewed his own earlier order rejecting the prayer for abatement, I think that he had committed an illegality which amounts to injustice to the parties concerned.
4. In the result, I think that the impugned order passed in the miscellaneous case concerned is not sustainable. This appeal is, accordingly, allowed and the impugned order is set aside. It is directed that the appeal concerned shall be disposed of after hearing both the parties on its own merit.