Patna High Court
Ranjeet Kumar Singh vs The State Of Bihar & Ors on 22 June, 2018
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.767 of 2014
Arising Out of PS. Case No.- Year- Thana- District- Vaishali
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Ranjeet Kumar Singh Son of Late Ram Kishore Singh @ Chulahai Singh
Resident of Village - Kutubpur , Chechar, Police Station - Bidupur, District -
Vaishali.
... ... Petitioner/s
Versus
1. The State of Bihar.
2. The Director General of Police, Bihar, Patna.
3. The Commissioner, Tirhut Division, Muzaffarpur.
4. The Inspector General of Police Muzaffarpur Region, Muzaffarpur.
5. The District Magistrate, Hajipur, District - Vaishali.
6. The Superintendent of Police, Vaishali at Hajipur.
7. The Land Reform, Deputy Collector, Hajipur, District - Vaishali.
8. The Sub-Divisional Magistrate, Hajipur Sadar, Hajipur, District - Vaishali.
9. Sub-Divisional Police Officer, Hajipur Sadar, Vaishali.
10. The Circle Officer, Bidupur Block, District - Vaishali.
11. The Station House Officer, Bidupur Police Station - Bidupur, District -
Vaishali.
Respondent 1st set
12. Brij Kishore Singh s/o Late Chandrika Singh
13. Shambhu Singh s/o Late Khem Karan Singh
14. Mohan Singh s/o Late Jaleshwar Singh
15. Vidhan Kumar s/o Late Amarnath Singh
16. Jageshwar Prasad Singh s/o Late Parmanand Singh
17. Kusheshwar Singh s/o Late Parmanand Singh
18. Sarandhar Prasad Singh @ Sanjay Singh s/o Late Rameshwar Prasad Singh
19. Mithilesh Singh s/o Late Ramanand Singh
20. Umesh Prasad Singh s/o Late Singheshwar Singh All are residents of Village -
Kutubpur, Chechar, Police Station - Bidupur, District - Vaishali.
... ... Respondents 2nd set
======================================================
Appearance :
For the Petitioner/s : Mr. Rajendra Prasad Singh, Sr. Advocate
Mr. Yashraj Bardhan
For the State Mr. Dev Kr. Pandey, AC to GP 2
For Respondent No.15 Mr. Ajay Kumar Thakur
Mr. Praveen Kumar
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
JUDGMENT AND ORDER
CAV
Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018
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Date : 20-06-2018
The present criminal revision application filed under
Articles 226 and 227 of the Constitution of India raises disputes
in respect of the immovable property between the heirs of a
common ancestor. The pleadings go to reveal that the case
involves seriously disputed question of facts as would be
evident from the case narrated by the petitioner himself.
2. This application has been filed, complaining of
highhandedness of the Station House Officer (SHO) Bidupur
Police Station, who is said to have put the petitioner's house and
shop, situate at Khata No.157, Plot No.888 of Mauza Chechar,
district Vaishali under lock and key on 07.06.2014, without any
authority or any order of a competent court. The petitioner has
accordingly sought a direction to the State-respondents to open
the lock of the aforesaid house and shop.
3. By filing I.A.No. 814 of 2016, the petitioner has sought
to amend the relief by seeking additional relief(s) as under:-
"(D) For issuance of a writ order or
direction to the Respondent local police
and other Respondent Authorities
holding that they have no authority or
jurisdiction to lock up the house and
shop of the petitioner in such an arbitrary
manner against the well settled principle
Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018
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of law on this point.
(E) For issuance of an appropriate
writ directing and commanding the
respondents to remove the hutments
(Jhopari), Bhusaula, the wooden Gumati,
the Coal & the Bricks which have been
illegally put by the private respondents in
collusion with and with the active help of
the police authorities namely respondents
Nos. 6, 9, and 11 over half the portion
from the northern side of R.S.P. No. 888
which was in possession of the petitioner
and over which the possession of
petitioner has already been held by the
competent authority (Chakbandi Officer),
which has remained final and binding on
the private respondents and the
possession of the petitioner has all along
been admitted by the contesting private
respondents in the consolidation
proceedings in respect of the house &
shop and the 10 decimals of land from the
Northern side of R.S.P. No. 888.
(F) For protection and safety of the
life of the petitioner and his family
members including the brothers and his
properties by issuing appropriate writ,
order or direction."
4. It is evident from the relief which the petitioner is
Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018
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seeking that whereas the petitioner is claiming his possession
over the disputed land which is "half portion from the northern
side of R.S.P. No. 888" over which the private respondents are
said to have put their hutments, the wooden Gumti, coal and
bricks. The facts would further go to reveal that the claim of the
petitioner of his title and possession is primarily based on the
decision of the authorities under the Bihar Consolidation of
Holdings and Prevention of Fragmentation Act,1956
(hereinafter to be referred to as 'the Act').
5. The parties have been heard at length.
Case of the petitioner
6. The petitioner is the Karta of the joint Hindu family
consisting of three brothers, being sons of Late Ram Kishore
Singh. He claims to have filed the present writ application on
his behalf in the representative capacity, on behalf of his two
brothers. They have ancestral property at the village Chechar in
the district of Vaishali which includes one plot appertaining to
R.S Khata No. 157 in the joint name of his father and other co-
sharers. Khata No.157 consists of two plots i.e., R.S. Khesra
No. 888, area 36 decimals and R.S. Khesra No. 914, area 1.29
decimal. The common ancestor of the petitioner and the private
respondents Late Sambhal Singh had died leaving behind two
Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018
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sons namely Maniar Singh and Manraj Singh (since deceased).
Whereas the private respondents are heirs of Maniar Singh, the
petitioner is heir of Manraj Singh and accordingly the petitioner
and his brothers are entitled for half of each and every
ancestral plot of land, owned by their common ancestor,
Sambhal Singh. In this background, the petitioner and his other
co-sharers (private respondents) are entitled to half share each in
respect of which there is entry in R.S. Khata No. 157 and in
Register-II(Jamabandi Register).
7. Nearly 50 years ago, under a private family
arrangement and Panchayati Batwara, half portion of northern
side of R.S.P. No. 888 was allotted to the father of the petitioner
and other half portion of southern side of the same plot was
allotted to the ancestor of the private respondents. The
petitioner's father had constructed a house and shop of eight
rooms in the northern portion of R.S.P. No. 888 nearly 50 years
ago in which the petitioner's father was running a PDS shop. In
his life time and after his death, the brothers of the petitioner
namely Tribhuwan Prasad Singh and Manoj Kumar Singh
have been running the said PDS control shop, wholesale
agency Pepsi Cola and the godown of fertilizer of PACS in the
aforesaid house and shop till 07.06.2014. Half portion from the
Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018
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northern side of RSP No. 888 has thus been under the peaceful
possession and occupation of the petitioner's father and after his
death, the petitioner and his brothers came in possession and
remained so till 07.06.2014. The revisional survey entry in
respect of R.S.P. No. 888 and 914 was put to challenge in 1974
by Late Permanand Singh, the ancestor of the private
respondents by filing a case before the Consolidation Officer,
giving rise to Case No. 303 of 1974. The Assistant
Consolidation Officer had conducted a local inquiry on
16.11.1982and had found possession of the petitioner's father over the half portion from the northern side of the R.S.P. No. 888 having the house and shop. Based on the inspection report, the Consolidation Officer had held the possession of the petitioner's father over half portion from the northern side of R.S.P. No. 888. The Consolidation Officer, however, directed for deletion of the name of the petitioner from R.S. Khata No. 157 containing the aforesaid R.S.P. Nos. 888 and 914. The petitioner's father had filed an appeal under the Act giving rise to Appeal No. 102/ 561 of 1982-83 against the order of deletion of his name from the aforesaid Khata No.157, before the Assistant Director Consolidation, who allowed the appeal by an order dated 23.03.1983. The Assistant Director, Consolidation Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 7/29 while setting aside the order of the Consolidation Officer came to the following conclusion in his order dated 23.03.1983:-
"It is directed that the entries of the last revisional survey will stand in respect of R.S.P. No.888 and 914.
vr% vkns"k fn;k tkrk gS fd fo}ku pdcanh inkf/kdkjh dk vkns"k okn la[;k 303@74 /kkjk 104 jn~n fd;k tkrk gS rFkk vkj-,l-ih 888] 914 ij losZ bUnzkt cgky jgsxkA"
8. The Assistant Director, Consolidation made the following observations while passing the aforesaid order:-
"The appellant also falsifies the contention of the respondent by means of rent receipts and area mentioned therein. From the facts and documents mentioned above, the respondent has felt (sic) to prove his case complete separation and partition. They even did not file any objection in the revisional survey against the entries of the appellant over the disputed plots. Though the Khatiyan is not an evidence of title but surely it is an evidence and indicator of possession. In the light of the arguments put forward by both the parties and the documents produced, this court comes to the conclusion that the impugned order of the lower court is erroneous which is set aside. It is ordered that the entries of the last Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 8/29 revisional survey will stand in respect of R.S.P. Nos. 888 and 914."
9. The ancestor of the private respondents and respondent no.19 filed Consolidation Revision No. 977 of 1983 against the aforesaid order dated 23.03.1983 of the Assistant Director, Consolidation before the Director of Consolidation, which was dismissed on 15.12.1984 by the Joint Director of Consolidation and, thus, the decision of the Assistant Director of Consolidation became final and binding on the private respondents in terms of Section 10(6) of the Act.
10. In the year 2011, the petitioner and his brothers had applied before the Deputy Collector Land Reforms (DCLR), Hajipur, under the Bihar Land Disputes Resolution Act, 2009 for the limited purpose of issuance/creation of separate Patti in respect of the aforesaid land and other lands to all the co- sharers in terms of the decision of the Assistant Director, Consolidation. The said application, however, came to be rejected by an order dated 31.05.2012. The Deputy Collector Land Reforms dismissed the application on the ground that the case involved disputed questions of title for which the parties would be at liberty to raise their grievance before the competent court of civil jurisdiction. Following is the operative portion of Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 9/29 the order of the Deputy Collector Land Reforms, Hajipur:-
^^vkosnd ,oa foi{kh ,d gh oa'kt ds gSa tks izLrqr oa{ko`{k ls Li"V gksrk gSA iz'uxr Hkwfe fookn esa LoRo U;k; fuf.kZr djus dk laf'y"V iz'u fufgr gS rFkk i{kdkj mfpr O;ogkj U;k;ky; ds le{k mipkj dh ;kpuk ds fy, Lora= gSA vkosnd ds vkosnu dks vLohd`r fd;k tkrk gS rFkk okn dh dkjZokbZ lekIr dh tkrh gSA^^
11. The petitioner has described the said order as the dismissal of the application on the ground of lack of jurisdiction. An appeal was thereafter preferred, registered as BLDR Appeal No. 382 of 2012, before the Divisional Commissioner, Muzaffarpur, who disposed of the appeal without interfering with the decision dated 31.05.2012 of the Deputy Collector Land Reforms, in the light of this Court's decision in the case of Maheshwar Mandal and another Vs. The State of Bihar and others (2014 (3) PLJR 281).
12. During the pendency of the appeal before the Divisional Commissioner, the private respondents, in association with the local anti-social elements, made efforts to grab the aforesaid land/shop of the petitioner in R.S.P. No. 888, (northern half portion), firstly by putting hutments and, secondly, by creating nuisance in running shop/business of PDS Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 10/29 Control, Pepsi products and of fertilizer of PACS. They are said to have threatened the petitioner's tenants. The respondents had also put a Bhusaula (a bamboo enclosure meant for storage of chaff) over the disputed land, complaining of which the petitioner and his brothers approached the local Station House Officer, who did not take any action. On 01.06.2014, the private respondent put a wooden Gumti and stored coal and bricks over the aforesaid land and blocked the approach way to the house. Since the respondent were committing the activities in connivance with the Superintendent of Police, Vaishali, no step was taken by the Station House Officer. On 04.06.2014, the private respondents intruded into the petitioner's share of land of R.S.P. No. 914, armed with fire-arms and looted away the bamboo clump on the point of fire-arms, for which the petitioner presented a written application before the Station House Officer, who did not register any case till 07.06.2014 as he was acting in collusion with the private respondents. On 07.06.2014, the Station House Officer, Bidupur Police Station, came at the petitioner's said house and shop, standing over the said northern portion of the R.S.P. No.888 and got the articles of the PDS shop and products of Pepsi Company evacuated/ousted from the aforesaid house and shop by Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 11/29 pressuring and terrorizing the brothers of the petitioner and got the house and shop locked forcibly, in collusion with the private respondents, by putting locks over the locks of the petitioner. Due to that, the fertilizers of PACS is still locked in one of the rooms of the said house and shop and the articles of PDS shop and the wholesale business of Pepsi are still locked in another room of the said house and shop. The Station House Officer made interpolations and the cuttings in the complaint/petition dated 04.06.2014 filed by the petitioner and registered the case on 08.06.2014. The allegation of manipulation and cutting in the complaint has been found to be true in an inquiry conducted under the orders of the Bihar Human Rights Commission for which the respondent no.11 has already been punished.
13. Since the Superintendent of Police, Vaishali, and the Station House Officer, Bidupur, were acting in collusion with the private respondents, therefore, they had not taken any action on several petitions dated 12.05.2014, 14.05.2014 and 02.06.2014 till 17.06.2014. When he presented a petition narrating the entire facts to the Inspector General of Police, Muzaffarpur, he directed the Superintendent of Police, Vaishali, to ensure respective possession of both the parties over the lands in question by an order dated 17.06.2014, issued vide memo Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 12/29 no.2337/C.R. dated 1706.2014, addressed to the Superintendent of Police,Muzaffarpur. The relevant portion of the direction issued by the Inspector General of Police is being reproduced herein below:-
^^vkosnu i= esa of.kZr rF;ksa ds vkyksd esa funs"k fn;k tkrk gSs fd iqfyl mik/kh{kd fookfnr LFky ij tkdj bl ekeysa dh tkap dj ysa vkSj ;g Hkh ns[ksa dh nksuksa i{k vk;qDr frjgqr izeaMy ds U;k;ky; ls fu.kZ; gksus rd vius&vius LFkku ij cus jgsA fdlh izdkj dh fof/k&O;oLFkk dh leL;k mRiUu u gksA dh xbZ dkjZokbZ ls Hkh voxr djk;saA^^
14. The English translation of the aforesaid reads as under:-
"In the light of facts mentioned in the petition, the D.S.P. is directed to visit the disputed place and enquire into this matter and also look into the fact that both parties should maintain status-quo until the decision of the Court of the Commissioner, Tirhut Division is received so that there may not be any law and order problem. Apprise of the action taken.
15. Apparently, the Inspector General had directed to maintain the status quo in respect of the possession of the parties over the land in question till disposal of the appeal by the Commissioner, Tirhut Division. The Commissioner, Tirhut Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 13/29 Division, disposed of the appeal on 20.08.2015, refusing to interfere with the order of the Deputy Collector Land Reforms, Hajipur dated 31.05.2012.
16. In order to avoid the directive issued by the Inspector General, Muzaffarpur, the Superintendent of Police got an ante dated police report prepared for initiation of a proceeding under Section 144 of the Code in respect of the land, in question, which was submitted in the court of SDM, Hajipur by the SHO, Bidupur on the petition dated 12.05.2014 which was presented by the petitioner and his brother Tribhuwan Prasad Singh. Though the police report was prepared after 17.06.2014, when the Inspection General had issued the order, by an act of ante-dating, a recommendation was made for initiation of a proceeding under Section 144 of the Code of Criminal Procedure (herienafter to be referred to as 'the Code') by the Sub Divisional Magistrate and since the State-respondents were in collusion with the private respondents, no mention was made about the existence of the house and shop standing over the aforesaid lands and the locking of the house and shop by putting the locks over the locks of the petitioner and the putting up of hutment/Bhushaula and wooden Gumti by the private respondents. The petitioner's brother filed an objection against Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 14/29 the police report filed by respondent no.11, and narrated the fact of locking up of the house and shop by respondent no.11. The Sub Divisional Magistrate had asked the Circle Officer, Bidupur to inquire into the matter in the light of the objection filed by the petitioner's brother. After filing of the present writ application, the Circle Officer, Bidupur, submitted his report, mentioning about the existence of the shop over the land in question and about the use of the same by the family members of the petitioner. He, however, concealed the fact about putting the house and shop under lock and key by the Station House Officer.
17. The petitioner is an Advocate practising in the Civil Court and presently is Secretary/Under Secretary, District Bar Association, Hajipur, Vaishali. He has made representation(s) to the Chairman, Bihar State Bar Council, Patna, National Human Rights Commission, Director General of Police, Bihar and other functionaries for proper action. It is based on the complaint made by the petitioner to the Bihar Human Rights Commission that an inquiry was held by the Additional Superintendent of Police which is suggestive of the fact that the house and shop was put under lock and key in presence of the Station House Officer. This is not in dispute that the Station Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 15/29 House Officer is said to have been placed under suspension.
Case of respondent no.15
18. The contesting respondent no.15 has filed a counter affidavit on notice having been issued. It has been asserted that the disputed lands have been carved out from Cadastral Survey Plot Nos. 436,437 & 457 of Cadastral Survey Khata No. 202, which was recorded in the Cadastral Survey in the name of Shiv Sahay Singh, son of Maniar Singh, who happened to be the ancestor of the deponent and other private respondents. The ancestor of the present writ petitioner separated from the ancestor of Shiv Sahay Singh much earlier and accordingly in the Cadastral Survey, other lands were shown to have been recorded in their name. Shiv Sahay Singh was in exclusive possession of the above land, was paying rent and was getting rent receipts. The present deponent and other respondents are his only descendants. According to him, Shiv Sahay Singh died leaving behind three sons, namely, Hallu Singh, Ram Ugrah Singh and Sri Bhagwan Singh, who came in possession over the lands of Late Shiv Sahay Singh, including the disputed lands and the present deponent and other respondents being the surviving descendants of said Shiv Sahay Singh, are in possession of the aforesaid land left by Shiv Sahay Singh. Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 16/29
19. R.S.P. Nos 675 and 1088, area 8 ½ decimals of east of C.S. Plot No. 675 and 12 decimals from west of R.S.P. No. 1088 were carved out from C.S.P. Nos.419 and 579, Khata No.654 which was recorded in the name of Gonu Pandey, who had transferred the land by various sale deeds. In consolidation proceeding, the name of the ancestor of the writ petitioner was wrongly recorded. It has been denied in the counter affidavit that the police ever put any lock over the aforesaid house which, according to him, is in the possession of the respondents.
20. Respondent nos. 6 and 11 have denied the case of the petitioner of putting the house/premises under lock and key by the police, whereas the petitioner asserts that the lock and key was put over the premises in question.
Submissions on behalf of the petitioner
21. Mr. Rajendra Prasad Singh, learned Senior Counsel, appearing on behalf of the petitioner, has submitted that the petitioner's title over the said property is based on the family arrangement which had taken place nearly 50 years ago which was an oral partition. Relying on a Supreme Court's decision in the case of Ram Bharat Dubey Vs. Deputy Director of Consolidation & others of this Court, reported in 2016 (1) PLJR 228, he has submitted that oral partition of ancestral Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 17/29 property is a valid partition for which no document is required. He has next submitted that in view of various decisions of this Court, the authorities under the Consolidation Act, 1956, had right and duty to adjudicate upon the claims of the private respondents and the counter-claim of the petitioner in respect of the land in question. Followings are the decisions which he has relied upon, in support of this submission:-
1. Rabindra Thakur Vs. The Collector, Muzaffarpur & Another (1995 (2) PLJR
710),
2. Sheo Joti Devi Vs. The State of Bihar & others (1985 BBCJ 431) &
3. Ramkrit Singh & others Vs. The State of Bihar & others (AIR 1979 Patna 250).
22. He has disputed the genealogical table filed by the private respondents and has contended , relying on the following decisions of this Court and the Supreme Court, that in the case of conflict of entries in C.S. Khatiyan and the R.S. Khatiyan, the recent Khatiyan entries must prevail which can be presumed to be correct:-
1. Byasdeo Mandal and others Vs. Smt. Longi Devi & others (2014 (3) BBCJ 461) &
2. Shri Raja Durga Singh of Solon Vs. Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 18/29 Tholu and others (AIR 1963 SC 361).
23. He has submitted that the consolidation authorities under the Consolidation Act have jurisdiction of an ordinary civil court to entertain any suit or application. He further submits that the decision of the consolidation authority in the appeal has attained finality and is binding . In support of this contention, he has referred to the following decisions:-
1. Achyutanand Choudhry Vs Luxman Mahto and others [(2012) 2 SCC 76],
2. Ram Krit Singh and others Vs. The State of Bihar and others (supra)
3. Bettiah Estate Vs. Pushpa Devi and others (1986 PLJR 222) &
4. Sri Anandi Prasad & another Vs. Sri Nandan Das and others (1984 PLJR
709).
24. He submits that once the possession, right, title and interest over the land has been declared by a competent authority, in a consolidation proceeding in favour of the petitioner, any proceeding under Sections 144 and 145 of the Code is barred. He contends that since the possession, title and right over the half portion from the northern side of R.S.P. No.888, containing the house and shop has already been held and decided in favour of the petitioner, the submission of the police report by respondent no.11 making recommendation for Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 19/29 initiation of a proceeding under Section 144 of the Code in respect of the land, in question, is completely illegal and is colourable exercise of power. He has relied on the following decisions to support his plea:-
1. Raj Kumari Devi Vs. The State of Bihar (supra) (2006 (2) PLJR 193)
2. Ram Nihora Singh Vs. Ram Sanjwan Singh 1994 (2) PLJR 160)
3. Ram Bachan Debey Vs. The State of Bihar (supra) (2012 (1) PLJR 699) &
4. Nagendra Narayan Prasad and others Vs. Lakshman Goswami and others ( 1984 BBCJ 316)
25. Mr. Singh has submitted that, in the facts and circumstances of the case, disputed questions of facts should not be treated as bar for this Court to interfere, under Articles 226 and 227 of the Constitution of India against arbitrary action of the police officials of putting the petitioner's premises under lock and key, unauthorizedly and a direction be issued for restoration of the petitioner's possession over the disputed property in a writ jurisdiction. He also submits that it is a fit case for grant of compensation for failure on the part of the respondents to discharge their statutory duties and obligations of protection of the petitioner's life, property and liberty, in the Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 20/29 light of the Supreme Court's decision in the case of Kapila Hingorani Vs, State of Bihar reported in (2003) 6 SCC 1 and in case of Olga Tellia & ors. Vs. Bombay Municipal Corporation reported in (1985) 3 SCC 545. On the point of restoration of possession, Mr. Singh has relied on following decisions:-
"(i) Shri Sohan Lal Vs. Union of India and another reported in A.I.R. 1957 S.C. 529 [Constitution Bench]
(ii) Unreported decision of the Supreme Court in criminal appeal No.629 of 1997 [Arising out of SLP (criminal) No.1327/96] Smt. Radhakhana Vs. Union of India & Ors.
(iii) Vijay Khanna and another Vs. Union of India and others reported in 1999 Cri. L.J 1275 (D.B)
(iv) Smt. Manju Devi & ors. Vs. The State of Bihar & ors. reported in 1999 (2) PLJR
(v) Mahendra Bhagat Vs. The State of Bihar & ors. reported in 2010 (4) Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 21/29 PLJR at page 8089
(vi) Mani Kant Choudhari & ors. Vs. the State of Bihar, reported in 2001 PLJR at page 333,
(vii) S.R. Ejaz Vs. T.N. Handloom Weaver's Cooperative Society Ltd, reported in (2002) 3 SCC 137,
(viii) Smt. Anju Devi Vs. Commissioner of Police & ors. reported in 1994 (2) crimes at page 691 Hon'ble D.H.C (D.B)
(ix) Shalini Shyam Shetty and another vs. Rajendra Shankar Ppati, reported in (2010) 8 SCC 329
(x) Tukaram Kana Joshi & ors. through power of Attorney Holder Vs. M.I.D.C & Ors. reported in 2013 (1) PLJR S.C. Discussions
26. For the purpose of appreciating the controversy involved, there are certain basic facts, with reference to the Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 22/29 pleadings and submissions made on behalf of the petitioner, that need to be noticed first, point-wise, which are as under:-
(i) The petitioner is seeking a direction "to open the lock from house and shop of the petitioner situated at Khata No. 157 Plot No. 888 of Mauza Chechar District Vaishali" which according to him, had been illegally locked up by the police authority on 07.06.2014. The very claim that the police have put any lock over the disputed premises in question has been denied both by the State-respondents and the private respondents. The petitioner is asserting that there is evidence to show that lock has been put by the police. Since the State respondents are denying this fact, there would be no occasion for the Court to direct them removing the lock as it is open to someone in whose possession the premises is there to remove the lock. Based on the pleadings which are there on record, this Court cannot record a finding that the police put any lock and key.
(ii) There is allegation of irregularities committed by the Station House Officer in the matter of registration of First Information Report at the instance of the petitioner or his brother. The Police officer has already been punished. The serious allegation of mala fide has been levelled against the Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 23/29 Superintendent of Police and the Station House Officer of conniving with the private respondents and acting in collusion with them. They have not been impleaded in their individual capacity. The allegation of mala fide against them, in that background, cannot be entertained.
(iii)The entire case of the petitioner is based on the decision of the Assistant Director, Consolidation, dated 23.03.1983 in Appeal Case No. 102/561/1982-83 and, therefore, it would be apt to consider the nature of the order and its consequence, for considering the petitioner's claim that his right, title, interest and possession have already been decided.
The Assistant Director, Consolidation was considering the question of legality of an order passed by the Consolidation Officer, whereby the Consolidation Officer had directed for deletion of the name of the petitioner's father from the entry in the last revisional survey from R.S. Katha No. 157 containing R.S.P. Nos. 888 and 914. Before the Assistant Director, Consolidation, disputes in respect of the shares of the parties in the joint family properties were raised. The appellate authority taking into account the fact that no objection was filed by the respondents against revisional survey entries in favour of the petitioner's father, held the order of the Consolidation Officer Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 24/29 to be erroneous. I have purposefully quoted above, the relevant portion of the order of the Assistant Director, Consolidation in appeal, from which it is evident that he noticed the fact that Khatiyan was not an evidence of title but surely "it was an evidence and indication of possession". What in fact the Assistant Director, Consolidation held was that it restored the entry of the name of the petitioner's father in respect of R.S.P. Nos. 888 and 914. He did not decide the question of petitioner's share and accordingly his title in respect of the disputed land nor did he decide the question of petitioner's possession. He simply held that direction of the Consolidation Officer to delete the name of the petitioner's father from R.S.P. Khatiyan was erroneous. The question of the petitioner's title or possession was not at all decided by the Assistant Director, Consolidation.
27. The law is well settled that entry in revenue record does not confer title on a party. The Supreme Court in the case of Surajbhan Vs. Financial Commissioner reported in (2007) 6 SCC 186 specifically has held that such entries are relevant only for physical purpose and substantive rights and the title of ownership of the contesting claimants can be decided only by a competent civil Court in appropriate proceeding. Similar view Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 25/29 has subsequently taken by the Supreme Court in the case of Rajendra Singh Vs reported in (2008) 9 SCC 368.
28. I would rather reiterate here that there is absolutely no material on record before this Court which would suggest a positive adjudication by any competent forum or authority either on the point of possession or of title in respect of the parties over the disputed land. The Assistant Director, Consolidation in his order, dated 23.03.1983, has simply recorded that such entry was merely an indication or evidence to prove possession. That cannot be treated to be a finding in favour of the petitioner that he was in possession over the disputed land. In that background, the Supreme Court's decision in the cases of Rabindra Thakur Vs. Collector, Muzaffarpur (supra), Sheo Joti Devi (supra) and Ramkrit Singh (supra), to the effect that the Chakbandi authority had full right to adjudicate the claim of the parties even in respect of title and possession does not help the petitioner's case since there is no finding of title and possession. The decisions in the cases of Achutanand Choudhary (supra), Bettiah Estate Vs. Pushpa Devi (supra) and Sri Anandi Prasad & another (supra) too, do not have any application in the facts and circumstances of the case since in my view, there is no decision Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 26/29 by any authority under the Consolidation Act holding specifically the petitioner's title and possession. Contention of Mr. Singh, learned senior Counsel for the petitioner that proceeding under Sections 144 and 145 of the Code would be barred in view of the decision by the consolidation authority is not acceptable to this Court since there is no decision of the Consolidation Authority/Court deciding the possession, title and right of the petitioner over half portion, from the northern side of RSP Plot No.888. That being the position, this Court is not required to consider the decisions relied on by Mr. Singh in case of Raj Kumari Devi (supra), Ram Nihorasingh (supra), Ram Bachan Debey (supra) and Nagendra Narayan Prasad (supra) in support of the contention that when possession, title, right and interest had already been declared by the competent Court, proceeding under Sections 144 and 145 of the Code is barred. Though there cannot be any dispute over this legal proposition enunciated by Mr. Singh, learned Senior Counsel, since there is no declaration by a competent Court in respect of possession, right title and interest in respect of the disputed land, the said principle does not help the petitioner for getting the relief which he is seeking in the present proceeding.
29. This is noticeable that the petitioner is claiming his Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 27/29 title over the disputed land on the basis of a family arrangement which had taken place more than 50 years ago. The petitioner's title over the disputed land is based on the said family arrangement.
30. As has already been noticed above, the petitioner had approached the Deputy Collector, Land Reforms under Bihar Land Dispute Resolution Act, 2009 for issuance of separate patti of the lands to all the co-sharers in accordance with the oral partition as well as possession held by the consolidation authority. The DCLR, considering the law laid down by this Court in the case of Maheshwar Mandal (supra), disposed of the application, observing that the disputes which were being raised could be decided only by a civil Court of competent jurisdiction. His appeal also came to be dismissed by the Commissioner, Tirhut Division on the same reasoning and they refused to interfere with the decision of the Deputy Collector Land Reforms by order dated 20.08.2015.
31. The case which the petitioner is making out is that during the pendency of the appeal before the Commissioner, Tirhut Division, the private respondents attempted to acquire possession of land with the aid of the local people in collusion with the Superintendent of Police, Vaishali and Station House Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 28/29 Officer, Bidupur. They are said to have put wooden gumti, coal and bricks over the land in question. Various assertions have been made in the writ application and other pleadings of the petitioner which cannot be gone into for considering the relief sought for, in the present writ application.
32. In view of the above discussions and materials available on record, I am of the considered view that this Court cannot record a finding in the present proceeding based on the decision of the Assistant Director, Consolidation that the petitioner was in possession over the land in question nor can it be held that the police put any lock and key over the premises in question. The question of title and possession which the petitioner is raising cannot be said to have been adjudicated upon in his favour by any competent Court, authority or forum. The allegation of mala fide against the District Administration cannot be entertained in the absence of their impleadment as party respondents in their individual capacity.
33. In view of the above, I do not find any merit in this application which is devoid of merit.
34. This application is dismissed.
35. The petitioner shall have the liberty to approach the appropriate forum/competent Court of civil jurisdiction for Patna High Court Cr. WJC No.767 of 2014 dt.20-06-2018 29/29 deciding his right, title and interest over the dispute land.
36. Before I part with I must make it clear that I have not gone into the question of title and possession of the petitioner or the respondents over the disputed land and any observation made in the present order should not be treated to be an opinion on the question of right title and interest of the parties over the land in dispute.
37. This application is thus, dismissed with the observation as aforesaid.
38. There shall, however, be no order as to costs.
(Chakradhari Sharan Singh, J)
HR/Arun
AFR/NAFF AFR
CAV DATE 08.12.2016
Uploading Date 22.06.2018
Transmission Date N/A