IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.2037 of 2008 Rajkeshwar Singh & Ors Versus Hari Nandan Mahaton & Ors ---------------------------------- 5 12-9-2011 Heard the learned counsel appearing on behalf of the petitioners and the learned counsel appearing on behalf of the opposite parties. This revision application has been filed against the order dated 14-8-2008 passed by Munsif, Arrah, in T.S.No. 77 of 1991 rejecting the petition under section 4(b) and section 37 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956(hereinafter referred to as the Act). It is not disputed that T.S.No. 77 of 1991 has been filed for partition after declaring the gift deed null and void. The defendants, who are petitioners here, after appearance filed a petition purporting to be under sections 4(b) and 37 of the Act praying therein that the suit, as filed, was not maintainable. After hearing the parties the learned court below has rejected the petition on the ground that the suit being the suit for declaration of title and partition cannot be decided before the Consolidation authorities as it involves the mixed and complicated question of title. 2 Learned counsel appearing on behalf of the petitioners has submitted that the learned court below has failed to consider the well-settled principle that the question of abatement of a suit under the provisions of the Act is to be decided on the basis of the averments made in the plaint. It has been further submitted that in view of the averments made in the plaint and the reliefs prayed therein, the suit is clearly a suit for partition after declaring the deed of gift in question as null and void and without authority of the donor. Contesting the submission, the learned counsel appearing on behalf of the opposite parties has contended that besides the relief of partition which may be covered by the Act, the suit involves primarily the determination of the validity of the deed of gift, which is clearly beyond the purview of the Act. In support of his proposition the learned counsel has relied on a decision rendered in Gorakh Nath Dube Vs. Hari Narain Singh & ors.[A.I.R 1973 (S.C.) 2451]. The learned counsel has further contended that if the prayer is taken to be under section 4(c) of the Act, then the revision application is itself not maintainable in view of the bar in the proviso to section 115 C.P.C. 3 The perusal of the impugned order as well as the revision application and supplementary affidavit shows that the suit is for partition after the declaration of the deed of gift in question as null and void. There is no dispute that the consolidation proceeding has commenced with regard to the suit lands. No material has been brought on record to establish that the notification for initiation of consolidation proceeding has been issued during the pendency of the suit and not prior to its institution. In this view of the matter, it is difficult to accept the submission of the learned counsel appearing on behalf of the opposite parties regarding applicability of section 4(c) of the Act. The learned court below has not considered the relief prayed in the plaint as well as the averments made in the petition before rejecting the petition of the defendants. From the averments of the plaint, as quoted in the supplementary affidavit as well as the facts stated in the revision application, it appears that the plaintiffs have sought the relief for partition after the declaration of the gift deed as null and void asserting the same to be beyond the share and the authority of the donor. Such a relief clearly comes within the jurisdiction of the Consolidation authorities under the Act as has been held in 4 Gorakh Nath Dube’s case(supra). Further no dispute has been raised regarding the nature of the suit and the reliefs prayed therein which make the provision of section 4(b) of the Act applicable to the facts and circumstances of the case. The rejection of the petition by the learned court below on the ground that the Consolidation authorities have no jurisdiction to decide the mixed and complicated question of title is clearly erroneous. In view of the discussions above made, this revision application is allowed and the impugned order is set aside. roy ( V. Nath, J.)