IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.800 of 2006 HARIHAR RAI Versus DURGA RAI & ORS ----------- 6 10.11.2008 Heard Counsel for the parties. While it is true that the rigors of Section 4(C) of the Consolidation Act are plain, simple and strict but then the requirement of law again is that they must be applied with reference to the facts arising out of a case. In the present case, in a suit for partition, it is an admitted position that in most of the schedules, there are residential houses which also have been made the subject matter of partition. It is an admitted fact agricultural lands is also the subject matter of the suit but then as the family has both agricultural land and homestead land as also residential houses and thus, if the Court below was of the view that the suit has abated, its reasoning had to be specific as with regard to which portion of the suit has abated. It is well settled that a suit for partition in respect of a residential house or homestead land, which is not agricultural land, will never abate. The Court below has however not gone into this aspect of the matter and it has only proceeded to examine as to whether the land in question was denotified or not and gone to hold that the suit has 2 abated. Counsel for the opposite parties very fairly submits that there is certain portion of the suit property which is covered by residential houses. He however, point out that agricultural land of the villages which is the subject matter of the suit is yet to be denotified and therefore, the Court below was required to apply the test of strict enquiry for deciding the issue of partial abatement. On the basis of the materials on record, this Court is thus satisfied that the Court below has rather acted in haste while holding that the entire suit has abated. The Court below ought to have been made enquiry both on the basis of either the pleadings on record or even otherwise for coming to a conclusion as to whether the entire suit had abated or that the suit would have proceeded against part of the suit land. That having been not done, this Court would set aside the impugned order and would remit the matter back to the Court below to pass an appropriate order in accordance with law. With the aforesaid observation and direction, this Civil Revision Application is allowed to the extent indicated above. Rsh (Mihir Kumar Jha, J.)