- 1 - IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1246 of 2006 MATHURA RAM Versus VIJAY KUMAR DIXIT ----------- 2 22/7/2008 Heard counsel for the parties. By the impugned order an application of the defendant-petitioner dated 12.4.2006 has been rejected holding that the Title Suit No. 188 of 1996 would not abate under the provisions of Section 4C of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act). Counsel for the defendant-petitioner submits that there is apparent jurisdictional error in the impugned order, in as much as, the same land when it was made subject matter of Title Suit No. 58 of 1984, between the same parties or their predecessor in interest, an application filed by the plaintiff-opposite party who was then the defendant in Title Suit No. 58 of 1984 claiming the suit to have abated under section 4 C of the Act, was allowed by the trial court and this Civil Revision Application filed against such suit being Civil Revision No. 1251 of 1985 was dismissed by this Court affirming order of abatement under section 4 C of the Act. It is thus - 2 - contended that when the present suit, Title Suit No. 188 of 1996 was filed by Vijoy Kumar Kikshit Son of Shivendra Nath Dikshit for the same land, an application was filed by the defendant-petitioner on 12.4.2006 for abatement of the suit, the same could not yield different result and the view taken by the court below would in fact amount to sitting over the judgment of this Court. Counsel for the opposite party does not dispute the factual aspect, but then by referring to paragraph 12 of the plaint he has contended that the suit lands were actually homestead land and not agricultural land and as such provision of section 4 C of the Act could not have been made applicable. He has thus defended the impugned order rejecting prayer of the petitioner for abatement of the suit. This Court, upon considering the rival submissions and after perusing the records including certified copy of the order of this Court dated 13.9.1988 in Civil Revision No. 1251 of 1985 is of the view that the court below has committed jurisdictional error in passing the impugned order. It has to be noted here that the plaintiff-opposite in paragraph 13 of the plaint of the present Title Suit No. 188 of 1996 has admitted that an earlier suit filed with regard to the same suit property had abated under section 4 C of the Act. As a matter of fact, - 3 - the relief also in both the suits are almost identical, in as much as, in Title Suit o. 58 of 1984 a prayer was made for permanent injunction by Shivendra Nath Dikshit, father of plaintiff-opposite party. This Court on the earlier occasion while dealing with the order of abatement passed in Title Suit o. 58 of 1984 had held as follows:- “The sole contention raised on behalf of the petitioner is that the present suit is a suit for permanent injunction only; as such, the dispute raised therein cannot be tried by consolidation authority and, consequently, the suit shall not abate under section 4 C of the Act. I have been taken through the plaint and I find that the present suit is, in effect and substance, a suit for declaration of title and for permanent injunction, though in the relief portion, the only relief prayed for is relief for permanent injunction. It is well settled that while interpreting the pleadings of the parties, court is required not to look at the form of the plaint but at the pith and substance of the same. Since in the present suit before granting a decree for permanent injunction, court is called upon to go into the question of title, in my view, the main question to be decided is title of the parties in the suit property and the relief for permanent injunction is only ancillary. In this view of the matter, I have no option but to hold, in agreement with the learned Munsif, that the present case is covered by the provisions of section 4 C of the Act and, consequently, I hold that the court below has not committed any error of jurisdiction in passing the impugned order holding that the suit has abated under section 4 C of the Act.” There is no dispute that the present suit filed by son of Shivendra Nath Dikshit, namely, Vijoy Kumar Dikshit, opposite party no.1 to this case is also for - 4 - declaration of title and grant of injunction against the defendant-petitioner. In that view of the matter, the stand taken with regard to the same suit land by the plaintiff-opposite party before the court below by claiming it to be homestead land, was itself hit by the principles of estoppel by record as also barred by principles of resjudicata. This Court, in fact, has also been taken through the plaint of both Title Suit No. 58 of 1984 as also the present Title Suit No. 188 of 1996 from which it is absolutely clear that the suit property, Khata nos. 3 and 4 plot nos. 1757 and 1758 were subject matter of both the suits. The submission of counsel for the plaintiff-opposite party as with regard to certain development in the physical feature of the land so as to give it colour of homestead land on the basis of paragraph 12 of the plaint of Title Suit No. 188 of 1996 is also fit to be rejected, in as much as, what ever has been stated in paragraph 12 of the plaint of Title Suit no. 188 of 1996 are events which had taken place prior to institution of the earlier suit i.e. Title suit no. 58 of 1984 and will have no bearing at least on the change in physical feature of the land. This Court is also in agreement with the submission of counsel for the petitioner that whenever controversy of the present nature with regard to abatement - 5 - of the suit under section 4 C of the Act has arisen the Court is invariably required to examine the same in the light of the provisions of the Act. This aspect of the matter infact is well settled by judgment of the Division Bench of this Court in the case of „Mathura Ram Vs. Vijay Kumar Dikshit‟ reported in 1979 BBCJ 738. From a bare perusal of the impugned order it would become clear that the application of the defendant- petitioner seeking abatement of the suit was rejected on mere ipse-dixit without going into root of the matter. There is nothing to indicate as to how in respect of the same land finding was arrived that even though land earlier was held to be agricultural land and thus within the perview and ambit of section 4 C of the Act, the same had become homestead land only in span of next 12 years. Admittedly no evidence was taken on this point and therefore the Court had to only take into account the averments made in the plaint/written statement which, as stated above, leave no doubt for its speculation that the land of plot nos. 1757 and 1758 were agricultural land. That being so, the impugned order is set aside and the matter is remitted back to the court below who would now decide the matter afresh keeping in view the pleadings of the parties in both the Title Suit No. 58 of 1984 as also the present suit, Title Suit No. 188 of 1996 and the order - 6 - of this Court dated 13.9.1988 in Civil Revision No. 1251 of 1985. With the aforementioned observations and directions this application, to the extent indicated above, is allowed. (Mihir Kumar Jha, J.) Rsh