IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.770 of 2006 Anutha Sah & Ors Versus Garibchand Sah & Ors ----------- 8 18-10-2011 Heard the learned counsel appearing on behalf of the petitioners and learned counsel appearing on behalf of the opposite parties. The petitioners have assailed the order dated 31-1-2006 passed by the Munsif, West Muzaffarpur in Title Suit No. 51 of 2004 by which the petition filed by the petitioners under section 4(b) and section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956(hereinafter referred to as the Act) has been rejected. There is no dispute that the suit has been filed for declaration of title and recovery of possession over the suit land. During the pendency of the suit the defendants-petitioners filed a petition stating therein that in view of the revival of the consolidation proceeding the suit would be hit by the provisions of section 4(b) and section 4(c) of the Act. The plaintiffs by filing a rejoinder to the said petition had resisted the claim of the defendants on the ground that the suit land is a Firni land situated in the middle of the populated area of the village and thus is not included within the consolidation process. From the impugned order it appears that by order dated 2-1-2006 the learned court below had directed the defendant 1st set to produce appropriate certificate /notification to establish that the 2 consolidation proceeding had been revived with regard to the disputed land and it appears that the defendants in compliance of the said order did not file any certificate/notification. A supplementary affidavit has been filed in this revision application annexing a copy of the notification made by the State Government pursuant to the judgment passed by the Apex Court withdrawing the notification mentioned therein. In the supplementary affidavit a photo copy of the survey Khatiyan has also been annexed to show the nature of the land. The learned counsel appearing on behalf of the petitioners has submitted that in view of the notification as annexed with the supplementary affidavit, it will be borne out that the consolidation proceeding in the concerned area is continuing. It has also been urged that the judgment/order of the High Court has been reported and therefore there was no need to file any notification/certificate in compliance of the order dated 2-1-2006 as mentioned in the impugned order. It has been further submitted that the copy of the Khatiyan annexed with the supplementary affidavit will show that the land in dispute is covered by the provisions of the Act. Per contra, the learned counsel appearing on behalf of the opposite parties has submitted that the learned court below ,as mentioned in the impugned order itself , had directed the defendants to produce the certificate specifically showing that the consolidation proceeding had revived in the concerned Anchal where the disputed land is situate, but no such 3 certificate/notification had been brought on record in the court below. It has been further submitted that the entries in the survey Khatiyan itself show that the disputed lands have been shown to be in the nature of Vit land which means the lands are situate within the populated area, as distinguished from agricultural land. Thus, the learned counsel has urged that the provisions of the Act will not be attracted towards the disputed land and there is no error or illegality in the impugned order. After considering the rival submissions it is clear that the suit has been filed for declaration of title and recovery of possession and as such it will be necessary to consider the two factors- whether there has been a notification with regard to the suit land and secondly whether the nature of the suit land is such as to come within the consolidation proceeding. From the impugned order it appears that no certificate/notification had been produced by the petitioner for perusal of the court to satisfy regarding revival of the consolidation proceeding with regard to the disputed land. The notification brought on record in this revision application by way of supplementary affidavit also does not disclose the necessary facts relating to the revival of the consolidation proceeding with regard to the village/Anchal where the suit land is situate. Moreover, the entries in the survey Khatiyan also do not show that the suit lands are agricultural lands as the same have not been+ recorded as such rather the entries show the suit lands to be Vit lands. Nothing has been produced before this Court to show that Vit lands are also included in the 4 consolidation proceeding. As such, there is no illegality or jurisdictional error in the order of the court below. This revision application is, accordingly, dismissed. ( V. Nath, J.)