Patna High Court
Krishna Mohan Thakur vs State & Ors on 4 March, 2011
Author: S K Katriar
Bench: Sudhir Kumar Katriar, Samarendra Pratap Singh
CIVIL WRIT JURISDICTION CASE No.1714 of 1993
In the matter of an application under Articles 226 & 227
of the Constitution of India.
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(i)(a) Gopal Kr. Thakur
(b) Pradeep Kr. Thakur
(c) Rajiv Kr. Thakur
Sons of Late Krishna Mohan Thakur, resident of
Village Rupaspur, Police Station Korha, District
Katihar .......... ............ Petitioners
Versus
1. THE STATE OF BIHAR
2. The Collector, Katihar
3. The Land Reforms Deputy Collector (Bataidari),
Katihar
4. (a) Most. Shanti Devi w/o Amarnath Choudhary
and others
5. (a) Bagula Rishi son of Late Jhakasu Rishi
and others
6. (a) Most. Jhapu Devi w/o Late Saldeo Rishi
and others ............. .......... Respondents
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For the Petitioners :Mr. Madhav Roy
For Respondents nos. 5 & 6 : Mr.
For the State : Mr. Rajesh Kumar
Asstt. Counsel to G P 10
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PRESENT
THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR
THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH
S P Singh, J.The petitioners pray for setting aside the entire proceeding of Revision Case no. 362/88-89 preferred against them by respondent nos. 5 and 6 since dead and substituted by their legal heirs. The facts of the case in short is as follows.
2. The petitioners claim to be the bataidars/under raiyats of plot no. 186, khata no.157-V of village Sadarpur Khurd in the district of Katihar of which late Amarnath Choudhary was the raiyat. Amarnath Choudhary, who is dead is now represented by respondent no.4 his substituted legal heirs. The petitioners state that in the last survey, the plot in question stood recorded in the record of rights in the name of one Patwari Hembram. Taking advantage of the same Patwari Hembram constructed a hut over the same. The petitioners filed Title Suit no.312/59 in the court of Munsif, Katihar, in which both respondent 2 nos.4 as well as Patwari Hembram were defendants. Title Suit was decreed on 19.8.61. Patwari Hembram was ordered to vacate the plots holding that petitioners were in possession and had right interest over the same. Patwari being aggrieved preferred Title Appeal no.365/61 which was also dismissed. Thereafter he filed a petition for initiating a proceeding under section 144, Cr.P.C. which was also finally decided against him. According to the petitioners, on instigation of Patwari Hembram, respondent nos. 5 and 6 (now dead and represented by their legal heirs), filed bataidari case under section 48-E of the Bihar Tenancy Act (hereinafter referred to as `B T Act') being Case nos. 71/85-86 and 72/85-86. Both the bataidari cases were dismissed by order dated 24.6.86 under section 48(E)(l). Respondent nos. 5 and 6 neither filed any appeal or revision, nor did they move this Court against the order rejecting the bataidari cases. Instead, respondent nos. 5 and 6 filed a fresh bataidari under section 48E of B.T.Act being case no.20/86, which too was rejected vide order dated 18.10.87. Respondent nos. 5 and 6 this time preferred Revision Case no. 362/88-89 in the court of respondent no.2. The petitioners filed objection in the revision application stating therein that the same is not maintainable. Over-ruling the objection of the petitioners, the revisional court appointed Pleader-Commissioner to ascertain the factual positions. The petitioners have challenged the maintainability of appeal/revision before respondent no.2.
3. The petitioners submit that the revisional proceeding is not maintainable and ought not to have been entertained by the appellate court. He further submits that the respondents having not preferred any appeal or revision against the order dt. 24.6.86 dismissing their first bataidari case under section 48-E of the B T Act, the second bataidari case preferred by them against same parties in respect of same land is hit by res-judicata and principle of estoppel. He submits that in any case, an appeal or revision would lie only, if the order appealed against is passed either under sub-section (7) or sub-section (8) of section 48-E of the B T 3 Act. As the order appealed against by respondent nos. 5 and 6 was not under sub-sections (7) and (8) of section 48-E of the B T Act, no appeal or revision could have been entertained.
4. Learned counsel for respondent nos. 5 and 6 submits that the writ application is premature as no final order has been passed in the appeal. He further submits that in fact the writ petitioners agreed to the appointment of the Pleader-Commissioner which position has been vehemently denied by learned counsel for the petitioners.
5. Heard learned counsel for the petitioners as well as respondent nos. 5 and 6. Section 48-F of the B T Act provides for an appeal, if an order is passed either under sub-section (7) or sub-section (8) of section 48-E. The order in question was not passed either under sub-section (7) or under sub-section (8) of section 48-E of the Act. In that view of the matter, no appeal could have lied before the Collector under section 48-F. Besides this, the subsequent Batidari case preferred by same respondents against same parties stands barred under principle of res- judicata as well as principle of estoppel. Respondent nos. 5 and 6 earlier for the same cause of action had filed Bataidari case namely case no. 75/85-86, 72/85-86 before the Deputy Collector, Land Reforms, incharge Batidari district of Katihar and both the cases were dismissed by order dated 24.06.1986. The respondent nos. 5 and 6 did not challenge the aforesaid order dismissing the Bataidari cases before any superior authority, as such the principles of res-judicata would estop them from maintaining fresh Badaidari case after 5-6 months on the same ground.
Still the larger issue involved in this case is whether an under raiyat can prefer an application under Section 48 (E) of the Act against another under raiyat for alleged prevention of threatened ejectment. As the issue centres round scope and extent of section 48E(1), the same is quoted hereinbelow for reference :-
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"48(E)(1): If an under raiyat is threatened with unlawful ejectment from his tenancy or any portion thereof by his landlord or if there is a dispute between them over the possession of land, crop of produce thereof either on the ground of non-existence of relationship of ladlord and tenant between them or otherwise or if an under raiyat is or has been ejected from his tenancy or any portion thereof within twelve years before the commencement of proceedings under this section in contravention of the provisions of section 89 the Collector may,. of his own motion or on application made in this behalf by the under raiyat, initiate a proceeding for preventing the landlord from ejecting the under raiyat or for settlement of the said dispute or for restoration of possession under raiyat unlawfully ejected from his tenancy or portion thereof."
6. From bare perusal of Section 48(E)(1), which is quoted hereinabove, it would appear that a suit under Section 48(E) can be filed against threatened ejectment or restoration of possession only against his landlord and not against another under-raiyat. The possession of the writ petitioner was restored on the land in dispute vide decree dated 19.08.1961 in Title Suit no. 12 of 1959. Both petitioners and respondent nos. 5 and 6 claim to be under-raiyats of Amarnath Choudhary, (respondent no.4, now dead and being represented by the substituted heirs). If an under-raiyat is threatened with ejectment or has been wrongly dispossessed, he or she can file a suit under Section 48(E) of the Act before Collector under the Act, for prevention against such threatened ejectment or for restoration of his possession. However, the under-raiyat can bring such suit only against another person, who too is claiming to be in possession as an under-raiyat.
7. In view of the discussions made above, we hold that section 48(E)(1) of the Bataidari Act does not visualize resolution of inter se disputes between two under-raiyats. An under-raiyat cannot bring proceedings under section 48(E)(1) against another under-raiyat against prevention of threatened ejectment or for restoration of possession of lawful ejectment. Thus the appeal filed before Collector under section 48(F) of the Act against an order rejecting the application filed under section 48(E)(1) of the Act was not maintainable. An appeal / revision 5 could have been filed only against an order passed under sub-section 7 and sub-section 8 of Section 48(E) of the Act and that too if an under- raiyat is claiming against a raiyat and not against persons who themselves claim to be under-raiyats.
8. In the result, this application is allowed, the entire proceeding pending before the learned Collector, Katihar in case no. 362/88-89 arising out of Bataidari case no. 20/86-87 is hereby quashed. The dismissal of the appeal would not preclude the respondents from taking resort to remedies available under the law. In the facts and circumstances of the case, there will be no order as to costs.
( Samarendra Pratap Singh, J.)
S K Katriar, J. I agree.
( S K Katriar, J.)
Patna High Court, Patna
The 4th of March 2011
NAFR/mrl.