Patna High Court
Ram Ekbal Singh And Ors. vs State Of Bihar And Ors. on 26 March, 1990
Equivalent citations: 1990(38)BLJR957
JUDGMENT U.P. Singh, J.
1. In this writ application under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the orders passed by the Consolidation Officer and the Joint Director of Consolidation contained in Annexures-9 and 11 whereby the title and interest of respondents 4 to 13 have been declared in respect of the disputed lands mentioned in Schedules I and II.
2. The land mentioned in Schedule I originally belonged to one Ram Lochan Rai. The lands under Schedule II were acquired by the petitioners by means of a deed of exchange from the landlord of village Atmi. Subsequently, the petitioners exchanged the acquired lands with the lands mentioned in Schedule II and, as such, the petitioners claim absolute title over the lands mentioned in Schedule II and contended that the same could get be the subject-matter of partition,
3. In order to appreciate the points raised by the parties, it is relevant to notice a few facts which are most relevant in this case. One Rameshwar Rai had two wives and from the first wife he had one son Dukhi Rai. Petitioners are the sons of Dukhi Rai From the second wife, he had four sons, namely, Dharamdeo Rai, Shiv Narayan Rai, Shiv Shankar Rai and Sitaram Rai, Respondents 4 to 13 are their descendants. After the second marriage, a dispute arose between the family of Dukhi Rai and Rameshwar Rai, etc., which led to separation and partition in the family. Dukhi Rai separated from his father and brothers after getting his separate takhta but the share of Rameshwar Rai and his four sons remained joint. On account of continuous bitterness and quarrel in the family. Dukhi Rai left his parental house and started living with one Ramlochan Rai who was an old unmarried person. The said Ramlochan Rai treated them as son and daughter-in-law and was very happy with the treatment used to be given to him by the said Dukhi Rai and his wife. Being so pleased with them, Ramlochan Rai made an oral gift of all his properties to Dukhi Rai. Ramlochan Rai died in 1920 and after his death the name of Dukhi Rai was substituted as an heir of Ramlochan Rai in all the relevant revenue papers as also in some case records which were pending in courts. In a Money Suit No. 341 of 1920 between Palakdhari Rai and Ramlochan Rai pending in the court of Munsif, Dukhi Rai was alone substituted as an heir of Ram Lochan Rai and paid the decretal amount in instalments in pursuance of the decree of the court. Similarly, several mortgage deeds executed by Kamlochan Rai were also redeemed by Dukhi Rai. These documents are Annexures 2 and 3 to this application. Thus, Dukhi Rai, even during the lite-time of Ramlochan Rai, had come in possession of the properties and after his death Dukhi Rai continued to be in possession. The name of Dukhi Rai was mutated in the landlord's serista as also in the Canal Department in respect of the properties of Ramlochan Rai and Dukhi Rai used to pay rent and rent receipts were granted in his favour (Annexure-4).
4. After the death of Dukhi Rai, the petitioners and their mother came in possession of all the properties which had been purchased and also acquired out of the own income of Dukhi Rai as also over those which had been given to them by the said Ramlochan Rai,. Petitioners' names were also mutated in respect of those lands in the landlord's serista and the Canal Department and regularly they were paying rent for which rent receipts were granted to them. At the time of vesting of the zamindari, the exlandlords submitted their return and jamabandi in the name of the petitioners in respect of these disputed lands. Also in Register II of the State the names of the petitioners ware entered and the State of Bihar granted receipts to them. In the recent survey operation of the year 1958-59, which continued for nearly 11 years, the names of the petitioners ; were entered in the survey papers at all the stages of the survey operation in respect of the disputed lands. No objection whatsoever was raissd by respondents 4 to 13 at any stage and this resulted in the final publication of the Revisional Survey Khatian in the names of the petitioners (Annexme-5).
5. It was, thus, contended on behalf of the petitioners that respondents-4 to 13 had no concern with the right or interest over the lands under Schedule I and Schedule II and they had no share in those lands. Ramlochan Rai was in no way connected with the family of Rameshwer Rai or his ancestors.
6. Long after the final publication of the Survey Khatian, respondents 4 to 13 filed a Title Suit bearing No. 18 of 1971 in the court of the Subordinate Judge claiming that they were entitled to a share in the property of Ram Lochan Rai as also in those lands which the petitioners had got in exchange. The claim was based on a long genealogical table attached to the plaint showing the connection of Ram Lochan Rai with the family of Rameshwar Rai.
7. In the written-statement, the petitioners submitted a different genealogical table pointing out as to how the genealogical table submitted by the respondents were wrong and false Thus, realising that their case was false., respondents 4 to 13 got the suit dismissed unconditionally without any right to file a fresh suit in respect of the lands described in Schedules I and II. The order dated the 8th July, 1973, dismissing the suit is Annexure-6.
8. The Subordinate Judge, while dismissing the suit passed the following order:
The above compromise as well as the permission petition are put up. The compromise appear to be for the benefit of the minors as well. The natural guardians are, therefore, permitted to compromise. Let the compromise be recorded and suit be dismissed in terms of the compromise. The compromise shall form part of the decree.
9. After the dismissal of the Tile Suit, respondents 4 to 13 executed a registered Bajidawa. deed on 18-7-1973 acknowledging and admitting the title and possession of these petitioners over the disputed lands. A Photostat copy of the said Bajidawa deed dated 18-7-1973 has been, annexed marked Annexure-7 to this application.
10. Now, awaiting for long 10 years after the execution of to said bajidawa deed and the dismissal of the suit, respondents 4 to 13 filed a petition under Section 10(2) of the Act before the Consolidation Officer claiming partition of 4/5th share in the disputed lands and then a consolidation case was steeled in the year 1983. There, they claimed that Dukhi Rai was the Karinda and manager of the family and he was looking after the entire family consisting of Dukhi Rai and the respondents. This appears to be obviously wrong because Dukhi Rai had already separated from his father and step brothers since the year 1920. Further, several transactions inter se between the family of Dukhi Rai and these respondents took place, which indicates that the parties were never joint. The sale-deed dated 28-3-1973 (Annexure-8) shows that one Dharamdeo Rai had purchased the lands from the family of Dukhi Rai.
11. In the back ground of these facts, it is contended by Mr. Krishna Prakash Sinha, the learned Counsel appearing on behalf of the petitioners, that the application filed before the Consolidation Officer was barred by limitation under Section 10-A of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as 'the Act') and the order of the Consolidation Officer contained in Annexure-9 as also the order of the Joint Director of Consolidation contained in Annexure-11 were illegal wherein it was held that the bajidawa deed in question was executed without previous sanction of the Consolidation Officer under Section 5 of the Act.
12. In the counter-affidavit filed on behalf of respondent No. 5 the only stand taken by the respondents and the contention now raised on behalf of all was that the alleged bajidawa deed was a fraudulent document. It was further contended that Section 10-A is not a bar for filing of objection because such objection can be filed at any subsequent stage and another such stage is under Section 10-B of the Act.
13. It is difficult to accept the contention of the respondents that Section 10-A is not a bar in filing the objection and that at any subsequent stage it can be filed. Section 10-A reads:
No question in respect of any entry made in the map or registers prepared under Section 9 or the statement of principles prepared under Section 9-A relating to the Consolidation area, which might or ought to have been raised, under Section 10, but has not been raised shall not be raised or heard at any subsequent stage of the Consolidation proceeding.
14. On a plain reading of the section, the bar to such objection is obvious in respect of the entry made in the map or registers prepared under Section 9 or statement of principles prepared under Section 9-A relating to the consolidation area, which might or ought to have been raised under Section 10 but were not raised and, in accordance with said provision, it shall not be raised or heard at any subsequent stage of the consolidation proceeding. Under Section 10 of the Act, a procedure has been bid down as regards publication of registers of lands and statement of principles and objection thereon prescribing a period of limitation. In the case of Gafoor v. Deputy Director , it was held that the questions which could of ought to have been raised under Section 10 but had not been so raised could not be raised or heard at any subsequent stage of the consolidation proceeding and the High Court may not interfere in exercise of writ jurisdiction against the revisional order upholding rejection.
15. Here, in the present case, the application under Section 10(2) of the Act before the Consolidation Officer was obviously barred by limitation under Section 10-A of the Act which was filed long after the publication of the revisional serve. record of rights in the year 1970 and after the dismissal of the title audit in the year 1973. The title suit filed by them in the year 1971 Claming title and interest in the disputed lands was got unconditionally dismissed at their instance without any right to file a fresh suit on the ground that they wanted to compromise and soon after the dismissal of the suit, they did execute a bazidawa deed on the 18th July, 1983, which was a registered bazidawa deed executed and signed by ail the parties concerned admitting and acknowledging the title and possession of these petitioners over the disputed lands. Nearly ten years later, in the year 1983, that application was filed before the Consolidation Officer claiming 4/5th share in the disputed lands and for the first tins pleading fraud. In no manner whatsoever it was shown as to how the fraud was committed and by whom, at what stage and in what manner, A mare statement pleading fraud in the counter affidavit without indicating or stating as to how the fraud was committed and by whom and at what stage and in what manner, the plea of fraud has to be rejected outright.
16. The alleged bajidawa deed executed on the 18th July, 1983, was a mere recognition of possession and title of the respective parties and it was not conferring any new right. It merely recognised the respective possession and title of the, parties over the disputed lands which existed so far. The final publication of the revisional survey record of rights was in the year 1970 and the respondents 4 to 13 awaited for long thirteen years to challenge the same in the year 1983 by filing an application before the Consolidation Officer, claiming 4/5th share in the property. In the teeth of these facts, it is difficult to accept the contention that the bar under Section 10-A of the Act will not operate against them After the publication of the revisional survey record of rights in the year 1970, the presumption was in favour of the petitioners that the land belonged to Dukhi Rai and it is relevant to notice that the said position was affirmed, recognised and accepted by them even in the registered bazidawa deed executed in the year 1973 Under the said bazidawa deed there was no question of passing out of title in the hands of any party but it was only an acceptance of the position of the respective parties inter se in respect of their title and possession The execution of the bazidawa deed has not been denied. I do not see how the respondents can rely on Section 10-B of the Act which provides that "all matters relating to the changes and transfer affecting any right or interest recorded in the Register of lands published under Sub-section (1) of Section 10 of the Act for which cause of action has not arisen when proceeding under Sections 8 and 9 were started or were in progress may be raised before the Consolidation Officer within thirty days of cause of action but not later than the date of the notification under Section 26-A or tinder Sub-section (1) of Section 4-A of the Act. This provision is of no assistance to the respondents. It may be stated that the stage of Section 19(2) had already passed and the bar under Section 10-A operand and therefore, the application under Section 10(2) of the Act was not maintainable. Section 10-B operates on certain conditions indicated therein and it does not override the provisions of Sections 10 and 10-A of the Act, The stage of Section 10-B is altogether different and it applies in a different situation.
17 In the case of Shyam Bihari Upadhyay v. State of Bihar 1985 PLJR 43, it has been held by this Court that the bar under Section 1,0 A of the Act will operate at subsequent stage of the consolidation proceeding and not to the revision power of the Director of Consolidation. When the Director of Consolidation exercises the revisional power sou motu or on an application of a party it is not a subsequent stage of the consolidation proceeding, In an appropriate case, he may be satisfied that the petitioner before him could not file objection under Section 10(2) of the Act for the reasons beyond the control of such petitioner. Nothing of the kind was raised before the Director of Consolidation.
18. The Consolidation Officer and the Joint Director did not construe the true scope of the registered bazidawa deed a ad wrongly rejected it on the ground that it was executed without the previous sanction of the Consolidation Officer under Section 5 of the Act. It is difficult to accept this contention Previous sanction of the Consolidation Officer is required in the case of transfer of any land in the notified area by way of sales, gift, exchange or partition. I do not see any reason how previous sanction of the Consolidation Officer under Section 5 would be required for execution of this registered bazidawa deed by which, be title passed to any of the parties. It merely recognised and accepted the existing position of the parties inter se in respect of their sights and claims over the properties. Therefore, the execution of the bazjidawa deed did not require any previous sanction of the Consolidation Officer under Section 5 of the Act.
19. In the result, this application is allowed and the orders contained in Annexure 9 and 11 are quashed. There, will however, be no order as to costs.