CIVIL WRIT JURISDICTION CASE No.6358 OF 1990 In the matter of an application under Articles 226 and 227 of the Constitution of India. … 1) Lakhan Sah, 2) Lala Sah, 3) Ram Prasad Sah, all sons of Late Mangal Sah, 4) Most. Sitia Devi, wife of Late Laxmi Sah, all of village and PS Islampur, District Nalanda – Petitioners. Vs. 1) The Principal, Consolidation Training Institute, Bihar, Patna. 2) Deputy Director of Consolidation, Nalanda. 3) Consolidation Officer, Islampur, Nalanda. 4) Nandu Ram, 5) Parmeshwar Ram, both sons of Late Karu Ram, 6) Ram Prasad Ram, son of Late Sonu Lal, 7) Sulaiman, 8) Ramjan Mian, 9) Ramju Mian, sons of Late Puna Mian, 10) Niccu Babu, 11) Jabbu Babu, both sons of Late Dr. Laxmi Verma, 12) Raja Ram Mahto, son of Late Bansi Mahto, 13) Md. Suleman, son of Late Nanhak Mian, 14) Barsatom Khatun, wife of Late Baratu Mian, all of village Hanuman Ganj (Talampur), PS Islampur, Dist. Nalanda – Respondents. … For The Petitioners : Mr. Keshav Srivastava, Sr. Advocate, Mr. Bhuneshwar Prasad and Mr. Manoj Kumar Singh, Advocates. For The State : Ms. Juhi Kumari, A.C. to S.C. 3. For the respondents : None. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S. A. Khan, J. The lands in dispute under the consolidation proceeding have been described at page 10 of the writ petition. The petitioners claim lands of C.S. Khata no. 521, C.S. plot nos. 719 and 736, measuring .13 decimals each. 2. The facts are that Khaderan Sao had three sons, namely, Doman Sao, Ram saran Sao and Karu Sao. Ram Saran Sao 2 had two daughters, namely, Bhanti Devi and Bifo Kuer. The petitioners are the sons of Bifo Kuer. Bhanti Devi died issueless. She predeceased both her father and her husband Sonu Lal. After the death of Bhanti Devi, Sonu Lal remarried Alo Devi. The respondents are the sons of Alo Devi. 3. The case of the petitioners is that the consolidation proceeding and the revisional survey was initiated at the same time in the district of Nalanda. While initiating the revisional survey under section 8 of the Consolidation Act, the provision of section 8 required that the revisional survey would be done in accordance with the provisions of the Bihar Tenancy Act. However, the right to file revision or an appeal which is provided under section 103A of the Bihar Tenancy Act was omitted under rule 6 of the Rules under the Consolidation Act perhaps on the ground that there is a provision of appeal and revision under the Consolidation Act and the parties aggrieved would have the liberty to challenge such orders. 4. The lands i.e. plot nos. 719 and 736 were recorded in the name of Karu Patwa, Abdul Patwa and Nanhak Patwa, sons of Khaderan Patwa, one share each and Ram Saran Sao, son of Khaderan one share. A rent suit was instituted by the ex-landlord with respect to the entire lands. Bifo Kuer, the mother of the petitioners filed an objection in the execution proceeding, which ultimately ended in a compromise by which she was allowed to deposit the entire amount and thereby she was able to recover 13 decimals of land of the aforesaid plots which were recorded in the 3 name of Ram Saran Sao. 5. It may be mentioned here that a suit was filed by Bifo Kuer against her sister some time in the year 1964, claiming that since Sonu Lal had remarried Alo Devi, he was not entitled to inherit the share of Bhanti Devi in view of the fact that she predeceased her father and husband and as such the sons of Sonu Lal and Alo Devi i.e. the respondents were not entitled to any share in the plots aforesaid. This suit was decided against Bifo Kuer. However, in the mean time it is apparent, that the consolidation proceeding had started in Nalanda and , therefore, the submission on behalf of the petitioners is that the suit abated under the provisions of section 4(b) of the Consolidation Act, and the decision rendered in that suit cannot be taken into account against the petitioners. It is submitted that the issues in the suit are open and ought to have been decided by the Consolidation Officer. 6. All three courts have held against the petitioners and have rejected their claim on manly two grounds. Firstly, by holding that since the application of the petitioners for entering their name in the revisional survey had been rejected, the matter cannot be reopened and examined by the Consolidation Officer. The three courts have also refused to consider the compromise decree passed in the rent suit. 7. The main argument on behalf of the petitioners is that the consolidation authorities were bound to consider and adjudicate on the fact as to whether the entry in the revisional survey was correct? Rule 6 of the Bihar Consolidation of Holding Rules states 4 that while preparing up to date record of right before consolidation under section 8, the provision of Chapter X of the Bihar Tenancy Act would be applicable. Sub clause (i) of the Rules further says that sections 103A, 105A, 106, 107, 108, 108A, 109 and 109A of the Bihar Tenancy Act shall not apply. The right to appeal or to file a revision against the order of the Ist authority/court is a valuable right and the object of deleting the provisions under the aforesaid Rules was for the reason that once the consolidation proceeding and the revisional proceeding were going on in a particular area side by side, the party concerned would have the right to file an appeal or revision before the consolidation authority challenging the orders of the Ist court or the authority. Therefore the consolidation Officer was not correct in coming to the finding that he would not examine or consider the findings passed in the revisional survey proceeding. It has also been high lighted that under the Act, section 10(7) provides that the consolidation officer shall (Italic is mine) and Assistant Director Consolidation may, when necessary, before deciding an objection or an appeal make local inspection of the unit after giving due notice to the parties concerned and the Village Advisory Committee. In the present case there were several parties involved, and a bundle of facts had come before the consolidation officer. Each of the party was claiming lands with respect to different plots which was the subject matter of the proceeding and as such this was one of those cases, where it was essential to make a local inspection to determine the possession of the parties and examine their title accordingly. It is also very relevant for C.S. plots 5 no. 719 and 736 of Khata no. 521 recorded in the name of two families who belonged to two different sects of the society and that another relevant fact is that the petitioners were claiming possession, on the basis of the compromise filed in the execution case arising out of the rent suit. These aspects must be considered. 8. The question whether Bifo Kuer lost her right because she had lost the title suit filed by her against Bhanti Devi would be an important factor, to be considered in the light of the provisions of section 4(b) of the Consolidation Act. The court also ought to have considered that even if it is presumed for the sake of argument that once the suit was decided and assuming that it had not abated under section 4(b) of the Act, whether it would affect the rights of the parties? 9. All these facts have not been considered by the consolidation officer and as such I remand the matter back to the consolidation officer to decide the issues with respect to Khata no. 521, C.S. plot nos. 719 and 736, after issuing notice to the respondents, as no body has appeared in this case to represent them, although notices were validly served on them. As far as other lands are concerned, the petitioners have the liberty to file the suit with respect to their claim, if so advised. This writ petition is allowed to the extent indicated above. Patna High Court, August 26, 2010, NAFR / haque. ( Sheema Ali Khan, J.)