Patna High Court
Ram Babu Prasad vs The State Of Bihar & Ors on 3 December, 2013
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12673 of 2006
=====================================================
Janki Devi & Ors
.... .... Petitioner/s
Versus
The State Of Bihar & Ors
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 12998 of 2006
=====================================================
Krishna Prasad Gupta
.... .... Petitioner/s
Versus
The State Of Bihar & Ors
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 12793 of 2006
=====================================================
Radhika Kuer & Anr
.... .... Petitioner/s
Versus
The State Of Bihar & Ors
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 12810 of 2006
=====================================================
Smt.Janki Sinha & Ors
.... .... Petitioner/s
Versus
The State Of Bihar & Ors
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 12940 of 2006
====================================================
Ram Babu Prasad
.... .... Petitioner/s
Versus
The State Of Bihar & Ors
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 12962 of 2006
=====================================================
Durga Prasad & Ors
.... .... Petitioner/s
Versus
2 Patna High Court CWJC No.12673 of 2006 dt.03-12-2013
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The State Of Bihar & Ors
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 12970 of 2006
=====================================================
Kamla Kuer & Ors
.... .... Petitioner/s
Versus
The State Of Bihar & Ors
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 12974 of 2006
=====================================================
Suraj Prasad & Ors
.... .... Petitioner/s
Versus
The State Of Bihar & Ors
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 13125 of 2006
=====================================================
Indrasani Devi & Anr
.... .... Petitioner/s
Versus
The State Of Bihar & Ors
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 12788 of 2006
=====================================================
Lal Babu Prasad & Anr
.... .... Petitioner/s
Versus
The State Of Bihar & Ors
.... .... Respondent/s
=====================================================
Appearance :
(In CWJC No. 12673 of 2006)
For the Petitioner/s : Mr. DEO GOVIND PRASAD
Mr. Priya Darshan Kumar
Mr. Ashok Kumar
Mr. Md.Waliur Rahman
Mr. Radha Mohan Pandey
For the Respondent/s : Mr. (SC11)
Mr. Brij Mohan Kumar Singh
(In CWJC No. 12998 of 2006)
For the Petitioner/s : Mr. DEO GOVIND PRASAD
Mr. Priya Darshan Kumar
Mr. Md.Waliur Rahman
Mr. Ashok Kumar
Mr. Radha Mohan Pandey
For the Respondent/s : Mr. (SC1)
Mr. Brij Nandan Kumar Singh
3 Patna High Court CWJC No.12673 of 2006 dt.03-12-2013
3/7
(In CWJC No. 12793 of 2006)
For the Petitioner/s : Mr. DEO GOVIND PRASAD
Mr. Priya Darshan Kumar
Mr. Ashok Kumar
Mr. Md.Waliur Rahman
Mr. Radha Mohan Pandey
For the Respondent/s : Mr. (SC10)
Mr. Brij Nandan Kumar Singh
(In CWJC No. 12810 of 2006)
For the Petitioner/s : Mr. DEO GOVIND PRASAD
Mr. Priya Darshan Kumar
Mr. Radha Mohan Pandey
Mr. Ashok Kumar
Mr. Md.Waliur Rahman
For the Respondent/s : Mr. (AAG11)
Mr. Brij Nandan Kumar Singh
(In CWJC No. 12940 of 2006)
For the Petitioner/s : Mr. DEO GOVIND PRASAD
Mr. Priya Darshan Kumar
Mr. Radha Mohan Pandey
Mr. Ashok Kumar
Mr. Md.Waliur Rahman
For the Respondent/s : Mr. (SC3)
Mr. Brij Nandan Kumar Singh
(In CWJC No. 12962 of 2006)
For the Petitioner/s : Mr. DEO GOVIND PRASAD
Mr. Priya Darshan Kumar
Mr. Radha Mohan Pandey
Mr. Ashok Kumar
Mr. Md.Waliur Rahman
For the Respondent/s : Mr. (SC8)
Mr. Brij Mohan Kumar Singh
(In CWJC No. 12970 of 2006)
For the Petitioner/s : Mr. DEO GOVIND PRASAD
Mr. Priya Darshan Kumar
Mr. Radha Mohan Pandey
Mr. Ashok Kumar
Mr. Md.Waliur Rahman
For the Respondent/s : Mr. (SC6)
Mr. Brij Nandan Kumar Singh
(In CWJC No. 12974 of 2006)
For the Petitioner/s : Mr. DEO GOVIND PRASAD
Mr. Priya Darshan Kumar
Mr. Ashok Kumar
Mr. Md.Waliur Rahman
Mr. Radha Mohan Pandey
For the Respondent/s : Mr. (SC9)
Mr. Brij Nandan Kumar Singh
(In CWJC No. 13125 of 2006)
For the Petitioner/s : Mr. DEO GOVIND PRASAD
Mr. Priya Darshan Kumar
Mr. Md.Waliur Rahman
Mr. Ashok Kumar
Mr. Radha Mohan Pandey
For the Respondent/s : Mr. (AAG3)
Mr. Brij Nandan Kumar Singh
(In CWJC No. 12788 of 2006)
For the Petitioner/s : Mr. DEO GOVIND PRASAD
Mr. Priya Darshan Kumar
Mr. Radha Mohan Pandey
Mr. Ashok Kumar
Mr. Md.Waliur Rahman
For the Respondent/s : Mr. (GA7)
4 Patna High Court CWJC No.12673 of 2006 dt.03-12-2013
4/7
Mr. Brij Nandan Kumar Singh
===========================================================
Dated : 3rd day of December, 2013
PRESENT
CORAM : THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO CAV J U D G M E N T
1. All these writ applications filed by the petitioners were directed to be heard along with Second Appeal No.247 of 2000 because by terms of order dated 20.01.2005 while disposing of I.A. No.5496 of 2004, this Court directed the Collector of the District to ensure no portion either constructed portion or vacant is let out or settle in favour of a private person or any agency other than the Bihar Government and in case it is noticed that any encroacher has come upon the land than the Collector of the District shall ensure their removal by force and pursuant to that order, notices have been issued to all the petitioners for removal of their encroachment. All the petitioners in the writ applications have prayed for quashing the notice issued by the S.D.O. for removal of the encroachment.
2. The learned counsel for the petitioners in all the writ applications submitted that the property which they have purchased by different sale deeds are not the suit property involved in the Second Appeal. Therefore, the Collector had no jurisdiction to direct the petitioners to remove their construction because the petitions are not the encroacher but are the real owner of the property.
3. The petitioner in C.W.J.C. No.12673 of 2006 has purchased the property by registered sale deed dated 05.07.2001. The vendor of the plaintiff 5 Patna High Court CWJC No.12673 of 2006 dt.03-12-2013 5/7 had inherited the property and had also acquired title by adverse possession. After purchase the petitioner is in possession of the property, therefore, the petitioner is the rightful owner of the property. In C.W.J.C. No.12998 of 2006, the claim of the petitioner is that the property was purchased by Keshav Prasad Gupta by registered sale deed dated 26.11.1965. After partition, the property fell in the share of the petitioner.
4. In C.W.J.C. No.12793 of 2006, the petitioners claimed that she purchased the property by two registered sale deed in the year 1988 and 1992 and likewise all the petitioners of the other writ applications claimed to have purchased the lands from different persons. According to the learned counsel for the petitioners, the petitioners are not party in the Second Appeal. Therefore, without hearing the petitioners, the order could not have been passed in Second Appeal affecting the right title, interest and possession of the petitioner. The learned counsel submitted that the S.D.O. or the Collector had no jurisdiction to issue notice to the petitioners because they are the rightful owners and not encroacher and moreover the High Court directed the removal of encroachment of the suit land giving rise to Second Appeals whereas all the property purchased by the petitioners in these 10 writ applications are not the suit property because the plot number and khata number is different.
5. On the contrary, the learned counsels appearing for the State of Bihar and the learned counsels appearing on behalf of the private respondents who are the respondent in Second Appeal submitted that in fact after new survey in the year 1971 the plot number has been changed and khata number has also been changed. In all the sale deeds, the new plot number and khata number has been mentioned but in fact the said purchased lands are part and parcel of old khta number No.106. In none of the sale deeds, the old khata 6 Patna High Court CWJC No.12673 of 2006 dt.03-12-2013 6/7 number and plot number have been mentioned. Merely because of no mentioning of old khata number or plot number, it cannot be said that the purchased lands are not the property involved in this Second Appeal.
6. Admittedly, the petitioners are claming title on the basis of purchase and some cases as discussed above, it is claimed that the vendors have acquired title by adverse possession. The petitioner claimed that they have purchased the property which are not the subject matter of the Second Appeal whereas on the contrary the respondent contended that the property purchased by the petitioner are part and parcel of old khata No.106 which is subject matter of the present Second Appeal and since the notices have been issued pursuant to the direction of the High Court, it cannot be said that the S.D.O. or the D.M. has no authority to issue notice. Further, if it is the Government land then also the D.M. or the S.D.O. has the jurisdiction to issue notice for removal of the encroachment. The question of title either on the basis of purchase or on the basis of adverse possession or the question whether the purchased property of the petitioner are not the subject matter of Second Appeal are all pure questions of fact, therefore, in exercise of jurisdiction under Article 226 of the Constitution, this Court without their being any evidence cannot record any finding that the plaintiffs are the owner of the property or that the purchased lands of the petitioners are not involved in this Second Appeals. In fact the question of title cannot be decided under Article 226 of the Constitution of India. In such view of the matter without recording these findings, the notice issued by the respondents for removal of encroachment cannot be quashed. Whatever points raised by the petitioners are the question of fact which cannot be decided in a proceeding under Article 226 of the Constitution of India. Therefore, they should have raised all these 7 Patna High Court CWJC No.12673 of 2006 dt.03-12-2013 7/7 points before the authority who issued the notice and should have satisfied the authority about these facts.
7. In view of the above facts and circumstances of the case, all these writ applications have got no merit, therefore, all ten writ applications are dismissed with direction to the petitioner to raise all these questions of fact before the authority which had issued the notice to remove the encroachment. The show cause must be filed within one month and if such show cause is filed, the authority concern shall dispose of the same according to law.
(Mungeshwar Sahoo, J.) Sanjeev/-