Patna High Court
Lakshuman Sah vs Th State Of Bihar on 8 October, 2024
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.690 of 1986
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1.1. Devanti Devi, Daugher in law of Anpurna Devi and Wife of Shri Mata
1. Prasad @ Mata Prasad, Resident of Village- Parsagarh, Prg. Bal, P.S. Ekma,
P.S. Parsagarh, District- Saran.
2. Rameshwar Sah, Son of Raghunath Sah, Resident of Village- parsagarh, Prg.
Bal, P.S. Ekma, P.O. Parsagarh, District- Saran.
... ... Appellant/s
Versus
Th State of Bihar.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Harendra Narayan Sinha, Adv.
Ms. Rekha Prasad, Adv.
For the Respondent/s : Mr. Abbas Haider (SC-6)
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CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date: 08-10-2024
The present Second Appeal No.690 of 1986 has been
filed against the judgment and decree dated 30.08.1986 and
11.09.1986passed by Sri Abinasi Saran Lal, 2nd Additional District Judge, Chapra in Title Appeal No.83 of 1980 by which the First Appellate Court has reverse the judgment and decree dated 31.03.1980 passed by Sri Rajendra Prasad Rai, 3rd Additional Sub-ordinate Judge, Chapra in Title Suit No.120 of 1976 by which the suit was decreed on contest with costs.
2. This Second Appeal No.690 of 1986 has been filed against the judgment of reversal. The Substantial Questions of Law in this appeal has been framed vide order no.7 dated Patna High Court SA No.690 of 1986 dt.08-10-2024 2/12 19.07.1996 by which delay in filing the second appeal had been condoned and the following Substantial Questions of Law had been framed which states as follows:-
"(1) whether the land is the integral part of Bazar (market) vesting in State and its delegated agency, and the findings of the Court-below is perverse?
(2) whether this land was private land of the Zamindars and the same was given through registered document to the plaintiff?
(3) whether the proceedings under Bihar Public Land Encroachment Act are not maintainable?"
3. The brief facts of the appellants is that Ex-landlord Babu Rajdev Narayan Singh S/o late Babu Baiju Prasad Narayan Singh settled 3 dhurs of land (Dih basgit in nature) out of 5 dhurs situated in Village- Parsa, Pragana-Bal, Tauzi No.788, Thana No.134, Mauza No.408, Khata No.411, Khesra No.4845 surrounded by North- Sadak, South- Bargad Tree Malik, East- Rasta and West- Sadak. The said land was settled through registered lease deed (perpetual in nature) for construction of house/shop for a Nazarana of Rs.200/- with annual rent of Rs.2/-.
Patna High Court SA No.690 of 1986 dt.08-10-2024 3/12
4. Learned Counsel for the appellants submits that the appellant (original plaintiff) got this land executed in the form of registered deed of kabuliat (acceptance) on 15.06.1932 and in the present suit, it is marked as Exhibit-2. Counsel further submits that the original plaintiff started paying rent to Ex- landlord and after vesting of zamindari, paying rent to the State of Bihar. These documents were marked as Exhibit-4 series. Counsel further submits that after vesting of zamindari, his daughter in law submitted return under Bihar Land Reforms Act, 1950 (hereinafter referred to as 'Act of 1950') showing plaintiff as settlee of the land in question due to the death of Ex- landlord. Counsel submits that the land in question was private land of the Ex-landlord and after settlement, remained private land of original plaintiff (appellant).
5. Learned Counsel for the appellants submits that the plaintiff (appellant) after settlement in the year 15.06.1932 started paying rent to Ex-landlord initially and subsequently, to the State of Bihar. Counsel further submits that after settlement of the said land, the original plaintiff (present appellant) immediately constructed a house/shop and started a cloth shop with the knowledge of all concerned for his livelihood. The shop of the plaintiff was running without any hindrance from any Patna High Court SA No.690 of 1986 dt.08-10-2024 4/12 concerned even by the State authorities which is apparent from the perusal of the lease deed/patta where boundaries of the said land were specified. Counsel further submits that the said shop of the appellant was situated near the road and bazar was held on Wednesday and Sunday on both sides of the road which is situated in the boundary of the said land. Counsel further submits that since 1932 to 1976, the original plaintiff was using the said shop without any hindrance from any corner. But in the year 1976, at the instance of his enemies, a Land Encroachment Case No. 05 of 1976-77 has been initiated without any information to the plaintiff. Counsel submits that plaintiff after receiving the said notice in the land encroachment case, filed his show-cause and thereafter, also filed a Title Suit No.120 of 1976 for declaration of title over the land in question on the basis of registered deed of lease/patta and registered kabuliat.
6. Learned Counsel for the appellants further submits that prior to filing of the Title Suit No.120 of 1976, the plaintiff has also served notice under Section 80 of the Code of Civil Procedure, 1908 upon the Government officials. Counsel submits that there were in total 9 issues framed by the Trial Court and in support of his case, plaintiff has examined in total 14 witnesses. Counsel submits that the learned Trial Court after Patna High Court SA No.690 of 1986 dt.08-10-2024 5/12 discussing the evidence of the witnesses has decreed the Title Suit No.120 of 1976 in favour of the plaintiff in which the evidence of grand son of Ex-landlord has been examined as PW-
9. PW-1 has also adduced evidence on the point of settlement and rent to the Ex-landlord and to the State of Bihar and exhibit of two documents, certified copy of the lease deed and payment of rent receipts to the Ex-landlord and State of Bihar were exhibited as Exhibit-9 and Exhibit-4 series. PW-1, 2, 3, 4, 5, 9 and 10 have adduced that bazar is held on both sides of road and not on the suit land. PW-9 was the witness of registered lease and PW-1, 3, 4 and 5 have adduced evidence about construction of house in 1932.
7. After considering the oral and documentary evidence, the Title Suit No.120 of 1976 was decreed in favour of the appellant. The State has preferred Title Appeal No.83 of 1980. In the said Title Appeal No.83 of 1980, the Appellate Court has formulated four points for consideration in appeal and reverse the findings of the Trial Court. Counsel submits that the Appellate Court at the time of reversing the judgment of Trial Court has not given any finding on evidence of PW's and has not provided any reason as to why he is disbelieving the evidence of PW's and also not relying the documents which is Patna High Court SA No.690 of 1986 dt.08-10-2024 6/12 Exhibit-9 and Exhibit-4 series. Counsel submits that there was no material on record that suit land is a public land and bazar was being held on the suit land. It has also not come on record that shop of the plaintiff became part of bazar. But in the appeal, the decree passed in the Title Suit No.120 of 1976 has been set aside and it has been held by the Appellate Court that hat and bazar vested in State under Section 7A of the Act of 1950 and the plaintiff (appellant) has been accepted lease continued during entire period of zamindari, but after vesting of zamindari, this Estate is now the State of Bihar. It has also been held that "mai maken dukan pucca hakiyat kast mudaiyan ki khas jamin (private land) hai." It has been held that the shop may be of the plaintiff, but the suit land is not of the plaintiff. It is the land of hat/bazar and the hat/bazar continuous with the permission of the land lord and therefore, the hat/bazar vests in the state of Bihar. It has also been held that the plaintiff cannot get a declaration for home-stead land within the meaning of Bihar Tenancy Act and the suit land become public land due to vesting of interest of Ex-landlords due to provisions of Section 4(a), 5 and 7A of the Act of 1950.
8. Next point raised was under Section 16 of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred Patna High Court SA No.690 of 1986 dt.08-10-2024 7/12 to as 'Act of 1956') in which filing suit is barred. Section 19 of the said Act prohibits any suit in respect of any encroachment upon public land and it has been concluded by the Appellate Court that suit land was used for business purpose with the permission of the Ex-landlord. It was a hat/bazar land and after implementation of the Act of 1950, this suit land comes within the purview of Act of 1956 and this said land belongs to State of Bihar and therefore, judgment and decree passed in the Title Suit No.120 of 1976 has been set aside.
9. With a view to decide the 1st Substantial Question of Law i.e. "whether the land is the integral part of Bazar (market) vesting in State and its delegated agency, and the findings of the Court-below is perverse", Counsel for the appellants submits that plaintiff is using the land after the settlement of land of 3 dhurs for which he was paying the rent to the landlord and subsequently, to the State of Bihar initially to the zamindar and after vesting of zamindari up to 1976. But at the instance of the local enemies, this case has been instituted. A legal question is before this Court which has neither been tested by the Original Court nor by the Appellate Court. The Appellate Court has discussed about the provisions of Sections 4(a), 5 and 7A of the Act of 1950, but fail to discuss Section 4(h) of the Act Patna High Court SA No.690 of 1986 dt.08-10-2024 8/12 of 1950 where power has been vested in Collector to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate or tenure or part thereof. Here in the present case, there is absolute lacking of proceedings under Section 4(h) of the Act of 1950. This is the strongest demerit in the judgment passed in the Title Appeal No.83 of 1980. The Appellate Court has not at all consider the said provisions of law under Act of 1950 and without initiation of any proceeding under Section 4(h) of the Act of 1950, the claim of the appellant's land by the State which he received from Ex-landlord by registered settlement followed by rent receipts issued by Ex-landlord and State of Bihar till 1976. The findings of the Appellate Court shall become futile exercise and without existence of any inquiry under Section 4(h) of the Act of 1950, the land which is subject matter of the present second appeal cannot be said to be the Land of State. If a proceeding under Section 4(h) of the Act of 1950 has been initiated on receipt of the Return, and before sending record to the Compensation Assessment Officer, a maximum period of three months has been provided for determination of the said Patna High Court SA No.690 of 1986 dt.08-10-2024 9/12 proceeding under Section 4(h) of the Act of 1950 and not thereafter. It is submitted that the proceeding under Section 4(h) of the Act of 1950 for determination of compensation shall be completed prior to determination of the compensation is being paid to the Ex-landlord. Section 27 of the Act of 1950 provides for an appeal against the preliminary compensation assessment roll on a conclusion of final publication of the compensation assessment roll is made under Section 28 of the Act of 1950 when all such applications and appeal have been disposed off. When a Compensation Assessment roll has been finally published under Section 28 of the Act of 1950, the Compensation Officer shall make a Certificate stating the fact of such final publication and the date thereof and shall date and subscribe with his name and officer designation. Such Certificate is conclusive proof of final publication. Here in the present appeal, there is complete lacking of any proceeding of the Act of 1950 in the judgment passed in title appeal and therefore, the 1st Substantial Question that the said land has vested in the State cannot be held correct.
10. With a view to decide the 2nd Substantial Question of Law i.e. "whether this land was private land of the Zamindars and the same was given through registered Patna High Court SA No.690 of 1986 dt.08-10-2024 10/12 document to the plaintiff", counsel for the appellants submits that there is Exhibit-2 which is certified copy of registered deed of kabuliat nama for nazarana of Rs.200/- in the year 1932 and annual rent of Rs.2/- clearly indicates that the land was private land of zamindar and the same was given through registered document to the plaintiff which is Exhibit-9 prior to 1st January, 1946. In addition to that, the findings of the Trial Court on the issue particularly issue no.5 that whether the plaintiff has got title to the suit land? and issue no.7 that whether any Bazar was ever held in the suit land? are fatal on which the Trial Court has assigned reasons in which he has discussed almost all oral and documentary evidences on the point of registered kabuliat nama and registered patta exhibited as Exhibit-2 and Exhibit-9, rent receipts exhibited as Exhibit-4 series and evidences of those persons in support of settlement i.e. evidence of PW-1, 2, 4 and 5, the evidence of witness of the settlement deed PW-9 and 10, he also discuss the evidences of eye-witness of the settlement PW-1 and 5. Therefore, the 2nd Substantial Question of Law that the land in question has been given to the original plaintiff (appellant) through registered document has been decided in favour of the plaintiff (appellant) and this land was private land of the zamindar because hat/bazar was not going on, on the said Patna High Court SA No.690 of 1986 dt.08-10-2024 11/12 land, rather, the hat/bazar was going on, on the boundary of the said land. Therefore, the 2nd Substantial Question of Law has also been decided in favour of the present appellant.
11. So far as the 3rd Substantial Question of Law i.e. "whether the proceedings under Bihar Public Land Encroachment Act are not maintainable", Counsel for the appellants submits that this Court at the time of deciding the 1 st Substantial Question of Law clearly discussed that without holding an inquiry under Section 4(h) of the Act of 1950, any transfer including the settlement or lease of any land cannot be held good. Here in the present case, there is absolute lacking of any such inquiry under Section 4(h) of the Act of 1950 which is fatal on the part of the State as the State officials without any inquiry under Section 4(h) of the Act of 1950, interfered on a land which was settled to original plaintiff (appellant) from the Ex-landlord through registered kabuliat followed by registered patta exhibited as Exhibit-2 and Exhibit-9 and rent receipts exhibited as Exhibit-4 series about which the Trial Court has given its categorical finding. In result, the said land in question cannot be said to be the land of State merely after vesting of zamindari, as it has also come that the daughter in law of the Ex-landlord has filed return of this land in the name of Patna High Court SA No.690 of 1986 dt.08-10-2024 12/12 forefather of the present appellant.
12. As such, in absence of inquiry under Section 4(h) of the Act of 1950, this land cannot be of public land and when it is not a public land then the proceeding under the Act of 1956 are not maintainable and Title Suit No.120 of 1976 filed by the Original plaintiff is not barred. In this view of the matter, the 3 rd Substantial Question of Law has decided accordingly.
13. Accordingly, the judgment and decree dated 30.08.1986 and 11.09.1986 passed by Sri Abinasi Saran Lal, 2nd Additional District Judge, Chapra in Title Appeal No.83 of 1980 by which the First Appellate Court has reverse the judgment and decree dated 31.03.1980 passed by Sri Rajendra Prasad Rai, 3rd Additional Sub-ordinate Judge, Chapra in Title Suit No.120 of 1976 are hereby set aside. Hence, with the aforesaid observations, the present Second Appeal No.690 of 1986 stands allowed.
(Dr. Anshuman, J) Divyansh/-
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