IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.482 of 2000 MAHESH BHAGAT @ MAHESH SINGH & ORS Versus DUKHIT BHAGAT & ORS ----------- 8 18.07.2008 Heard counsel for the petitioner. Counsel for the petitioner with reference to the impugned order dated 15.2.2000 submits that conclusion arrived by the below that the suit was barred under Section 4(C) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act (hereinafter referred to as the Act) is bad on two scores namely: - (i) that the relief sought by the petitioner was not with regard to any order passed by the Consolidation Authority rather the suit was for declaration of title and confirmation of possession and other ancillary relief on the basis that the petitioners through their descendants were the khatiyani raiyats. (ii) that the parties to the suit earlier had moved the consolidation authorities when the land in question was sought to be recorded in the name of State of Bihar and - 2 - at that point of time by order dated 1.2.1990, the Consolidation Officer had himself passed an order giving liberty to the parties to move appropriate Civil Court. No one has appeared on behalf of the opposite parties despite service of notice. This Court would find the challenge to the jurisdiction of the Civil Court by the opposite parties was not permissible as they were bound by the principle of estoppel in as much as they were party to the aforesaid order dated 1.2.1990 passed by Consolidate Officer. That apart this issue could not have been gone into in such a cursory manner inasmuch as the Court below has proceeded on presumption that the suit was barred by the provision of the Act. As a matter of fact such inference from perusal of paragraph Nos. 9 and 10 of the plaint, was not possible because what was said that therein that when the consolidation authorities had sought to record the name of the State of Bihar despite objection by the petitioner, the consolidation officer had himself given liberty to the parties to move appropriate Civil Court. This - 3 - being the pleading in paragraph Nos. 9 and 10 of the plaint, the Court below has not made a serious attempt to go into the root of the matter. Moreover, the Court below ought to have not looked into or relied any certificate which were not duly taken on record by way of evidence. It is well settled that even when a question of jurisdiction or maintainability has to be decided under Order XIV Rule 2 such an issue has to be framed by way of preliminary issue and evidence has to be adduced for examining such preliminary issue. This court however would find that the Court below proceed to decide the case only on the basis of either the statements made in paragraph Nos.9 and 10 of the plaint or the certificate. In that view of the matter this Court is satisfied that the impugned order passed on 15.2.2000 suffers from jurisdictional error and accordingly the same is set aside. The Court below is directed now to frame the issue and take up the question of maintainability of the suit once again and after it has reasons to believe on the basis of - 4 - evidence on record that the suit is barred by Section 4(C) it would pass such an order. In the event, the Court below comes to the conclusion, that the suit is not barred, it will proceed to decide the suit on merit. In the result this application succeeds in the aforementioned terms but there would be no order as to cost. BCJ (Mihir Kumar Jha, J.)