Patna High Court
Bachha Sah vs Manohar Thakur And Ors. on 30 August, 2006
Author: Ramesh Kumar Datta
Bench: Ramesh Kumar Datta
JUDGMENT
Page 2080
1. This civil revision application has been filed against the order dated 9.6.1999 passed by Munsif, Bettiah in Title Suit No. 244 of 1998 by which the petitioner's application under Order 7 Rule 11 of the Code of Civil Procedure for dismissing the suit as not maintainable was rejected.
2. The said Title Suit was filed by the plaintiff-Opposite parties on 30.10.1998 for declaration of their title over the land in question and permanent injunction against the petitioner as well as for declaration that the basgeet parcha issued in favour of the petitioner in case No. 514/69-70 by the Anchal Adhikari, Lauriya and the order dated 26.7.1997 passed by the Collector, West Champaran, in Case No. R.M.21/96-97 be declared illegal and without jurisdiction and not binding on the plaintiffs and also for relief of permanent injunction against the defendant-petitioner. The grounds taken in the plaint were that the defendant in collusion with the officers forged some papers about the settlement of the land appertaining to No. 173, Plot No. 905/1 admeasuring 6 decimals under Bihar Privileged Persons Homestead Tenancny Act (for the sake of brevity 'the Act') filed a case No. 514/69-70 and on 14.1.1970 got the parcha issued in his favour though HE Was not eligible for the sane because he had already a separate pucca residential house over a piece of land and, secondly, he was not in actual physical possession over the land under the Act and, thirdly, no spot verification was made by the Anchal Amin and, 4thly, all the proceedings under the said Act was surreptitiously done without any notice to anybody in vicinity or the plaintiffs' predecessors. The plaintiff claimed that the order sheet was got prepared in 1996 by antidating the proceedings, then the parcha was issued and as a matter of fact no such proceeding was ever initiated. The claim of the plaintiff-Opposite Parties over the land is on the basis of settlement in his father's favour for nearly 50 years and as a precautionary measure and to avoid Page 2081 litigation his son, namely, Shyam Bihari Singh, executed a registered sale deed on 16.7.1996 with respect to suit land in favour of the plaintiff and one Yogendra Sah who relinquished his title in favour of the plaintiff subsequently.
3. The petitioner's case is that with respect to khata No. 173, Khesra No. 905/1 measuring six decimal (16 dhoors) in Phulwariya Village of Lauriya Police Station, Case No. 514/69-70 under the Act was initiated and after following of due procedure including issue of notice to the land holder, the said land was settled in his name by the then L.R.D.C on 14.1.1970. After the settlement, Jamabandi of the lasnd bearing No. 323 was created in his name and he is paying rent regularly in respect of the said land. It is stated that on 8.8.1996 the Opposite Parties demolished one hut and dismentled the Tatti and ejected the petitioner from 5 decimals of the land for which the petitioner filed Case No. R-M-21/96-97 before he Collector, West Champaran at Bettiah. In the said case the Collector by order dated 26.7.1997 directed the S.D.O., Narkatiyaganj to restore the possession of the land to the petitioner under Section 8(5) and (6) of the Act and accordingly possession was restored to the petitioner from 23.12.1998 by Anchal Adhikari Lauriya. It is further stated that after the said order of the collector Opposite Party No. 1 and another person challegned the basgeet Parcha issued in his favour in C.W.J.C. No. 8991 of 1997 which was dismissed by this Court on 17.7.1998 Thereafter suit has been filed on the basis of the false statement and contrary to the provision of Section 18 of the Act.
4. On a consideration of the aforesaid facts the application under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant-petitioner in the court below was rejected by the learned Munsif. Section 13 of the Act provides as under:
The orders passed under this Act shall be final. Subject to the provisions of Section 21, all orders passed by the Collector in any proceeding under this Act shall be final, and no suit shall lie in any Civil Court to vary or set aside any such order except on the ground of fraud or want of jurisdiction.
5. On a consideration of the averments made in the plaint except a bald statement that all the officials of the Anchal were brought in collusion and parcha was got issued, no specific pleading regarding the fraud committed which vitiated the order granting parcha has been pleaded. The plaintiff-Opposite Party had not brought on the record anything to show as to how the order dated 14.1.1970 passed in Case No. 514/69-70 and the order dated 26.7.1997 passed by the Collector in Case No. R-M-21/96-97 are without jurisdiction. Mere recital of such grounds cannot help the plaintiff-petitioner when there is statutory bar provided in the Act for filing of the suit except on the two grounds of fraud and lack of jurisdiction.
6. From a consideration of the materials on record it is prima facie evident that there was a settlement in favour of the petitioner under the Act as far back as on 14.1.1970 which was santioned by the competent authority, namely, S.D.O., Bettiah, and when the plaintiff-oposite parties tried to dispossess the petitioner on 8.8.1996 the matter was got enquired into by the collector and the lower court record was also perused by him on which he found that the parcha had been issued under the Act in favour of the petitioner in a valid manner and, thus, directed that the petitioner must be restored to the possession of the and in question from which he was forcibly ejected.
Page 2082
7. In the earlier writ petition filed by the Opposite parties, namely, C.W.J.C. No. 8991 of 1997 also by order dated 17.7.1998 this Court had taken note of the fact that after about 20 years of the issuance, of basgeet parcha in favour of the present petitioner the Opposite parties had purchased the said land from the original land holder and then moved before the authorities that they were not heard and further that the writ petition has been filed against the original order of 1969 after 28 years in September, 1997 and for the said reasons the writ petition was dismissed.
8. It is clear even from the averments made in the plaint that any claim of the plaintiffs would arise only on the basis of he registered sale deed which was executed in their favour on 16.7.1996; much prior to that the said land stood settled with the petitioner in terms of the Act. Only the original land holder is entitled to the notice under the said Act and the plaintiff being a subsequent purchaser much after the settlement had no right to issuance of any notice. Thus, by purchase of the land on 16.7.1996 he could not acquire any better title than was there in his vendor who could not have challenged the basgeet parcha issued on 14.1.1970 in the year 1996 or thereafter.
9. For the aforesaid reasons it is held that the learned Munsif has committed a serious error of jurisdiction by rejecting the application filed by the petitioner-defendant under Order VII Rule 11(b) of the C.P.C. since the Suit in its essence was barred by Section 18 of the Act.
10. The civil revision application is accordingly allowed and the order dated 9.6.1999 passed by the Munsif, Bettiah in Title Suit No. 244 of 1998 is set aside and accordingly the said suit shall also stand dismissed as not maintainable.