Rabindar Nath Mishra and Others vs Jainath Singh

Satyeshwar Roy, J.—By this application the petitioners, plaintiffs in the court below, have challenged the validity of the order dated 5.12.1985 by which the court below has held that the suit has abated under the provisions of Section 4(C) of the Bihar Consolidation of Holdings and Preventation of Fragmentation Act, 1956 (the Act).

It was urged on behalf of the petitioners with reference to the last part of the order impugned that it would appear that the amendment of the plaint had been allowed and the fact that the whole of the suit property was not land within the meaning of the Act and the court below; it could not have allowed the matter on mere conjecture and held that part was done to take out the land from consolidation. The court below could not have decided the matter on a mere conjecture because whether the particular land is covered by the definition within the meaning of the Act was a question of fact and if the court below was not satisfied, it ought to hive called upon the parties to lead evidence on that question before holding that this suit had abated particularly in view of the statements made in the plaint. On this short question, in my opinion, the plaintiffs must succeed in this application.

In the results the application is allowed and the order impugned is set aside. As no body appears on behalf of the opposite-party to oppose this application, no cost is being awarded.