IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.376 of 2006 RAM NARESH DUBEY & ANR Versus SMT.RAJMANI DEVI & ORS ----------- 5 29.07.2008 Heard counsel for the petitioners. In the opinion of this Court, the impugned order rejecting the prayer of the petitioner for abatement of the suit under the provisions of Section 4(B) and 4(C) of the Consolidation Act cannot be sustained on a simple proposition that the Court below has committed an apparent error on the face of the record in holding that the suit in question has been filed for declaration of suing capacity of the plaintiff as to whether she is the daughter of Late Ram Nagina Dubey or Late Ram Beyas Dubey infact, the suit filed by the plaintiff is out and out a partition suit as would be evident from paragraph No.20 of the plaint . In that view of the matter, this Court would not uphold the reason mentioned in the impugned order that the suit would not abate because the decision of the suit would require determination of legal character of the plaintiff and also the question whether the - 2 - plaintiff is sole surviving heir of late Ram Nagina Dubey. What would be an issue in a suit is not necessarily the touchstone for deciding the provision of abatement provided under Section 4(B) and 4(C) of the Consolidation Act. That being so, the impugned order passed by the Court below is absolutely vitiated by jurisdictional error and is accordingly set aside. The Court below is now directed to examine the application of the petitioner afresh and take a decision in accordance with law in keeping with the averments made in the application read with the plaint and if it is found that the same is barred under Section 4(B) read with Section 4(C) of the consolidation Act an appropriate order may be passed. Such exercise must be completed within a period of six months. It goes without saying that after the consolidation scheme is over, the abated suit can be always revived and, therefore, no prejudice would be caused to the claim of the plaintiffs/opposite parties as with regard to her being rightful owner of the suit property. - 3 - With the aforementioned observation and direction this application is allowed. BCJ (Mihir Kumar Jha, J.)