Patna High Court - Orders
Kaushal Kumar Verma vs The State Of Bihar & Ors on 4 September, 2012
Bench: Chief Justice, Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.454 of 2011
In
Civil Writ Jurisdiction Case No. 2801 of 2006
======================================================
Kaushal Kumar Verma S/o Sri Awadh Prasad, Resident of Mohalla Khetari
(Jail Road) Charkhamba Gali, Ara, Post Office Ara, Police Station Ara
Town, District Bhojpur.
.... .... Respondent-Appellant
Versus
1. The State of Bihar through the District Registrar cum Collector, Bhojpur
at Ara.
2. The Additional Collector, Bhojpur at Ara.
3. The District Sub Registrar, Bhojpur at Ara.
.... .... Respondents-Respondents
4. Ganesh Prasad S/o Late Shri Ram Prasad Sah Resident of Mohalla
Milki, Post Office Ara, Police Station Ara Town, District Bhojpur.
5. Smt. Krishna Devi W/o Ganesh Prasad Resident of Mohalla Milki, Post
Office Ara, Police Station Ara Town, District Bhojpur.
.... .... Petitioners-Respondents
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Appearance :
For the Appellant : Mr. Baxi S.R.P.Sinha, Senior Advocate
Mr. Rahul Nath, Advocate
For the Respondent State: Mr. Dev Kr. Pandey, A.C. to GP-6
For the Respondent nos.4&5: Mr. S.R.C. Pandey, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
2 Patna High Court LPA No.454 of 2011 (7) dt.04-09-2012
2/5
7. 4-09-2012Feeling aggrieved by the judgment and order dated 10th February 2011 passed by the learned single Judge in C.W.J.C. No. 2801 of 2006, the respondent no.4 has preferred this Appeal under Clause 10 of the Letters Patent.
Matter at dispute is the transfer of the land Plot No.4427, Khata No.639 admeasuring 20 ¼ Kadi under the sale- deeds dated 16th October 1990 and 19th October 1990 executed by one Gurucharan Shrivastava in favour of the writ petitioners. The said transfer was challenged by the State Government before the Court of learned Sub Judge, Ara in Title Suit No.3 of 1992 (revised Title Suit No.450 of 2003). The State Government has claimed title over the land in dispute. We are informed at the bar that the said suit is still pending before the court of learned Sub- Judge.
The appellant moved the Collector, Bhojpur in Misc. Case No.15/93-94 against the registration of the said sale-deeds. The Additional Collector, Bhojpur under his order dated 23rd November 2005, relying upon a general instruction issued on 9th August 1985, issued direction upon the registering authority not to register the said sales. Feeling aggrieved, the writ petitioners-the purchasers approached this Court under Article 226 of the Constitution in C.W.J.C. No. 2801 of 2006. The petition was contested by the State Government. According to the State Government, Khata No.1053 of Ara was the Government lands including Plot No.4427. In view of the rampant encroachment and transfer of Government land under fictitious Khata number, a general order was issued by the Collector, Bhojpur on 9th August 1985, enlisting the Government lands and issuing general direction of not registering any sale in 3 Patna High Court LPA No.454 of 2011 (7) dt.04-09-2012 3/5 respect of those lands. The said list included Plot No.4427, Khata No.1053. It appears that the aforesaid vendor Gurucharan Srivastava has sold the Government land by noting a fictitious Khata No.'639' to avoid detection. In fact, no land Plot No.4427 in the description of Khata No.639 exists. According to the State Government, if such transfers are permitted, it would lead to chaos and would create the law and order issues.
The learned single Judge has, having considered the rival contentions, allowed the writ petition. The learned single Judge was of the opinion that the Additional Collector does not have the power to issue direction not to register any conveyance. Besides, the issue of title would be decided in the pending Title Suit No.3/1992. Feeling aggrieved, the respondent no.4 has preferred this Appeal.
Learned advocate Mr. Baxi S.R.P. Sinha has appeared for the appellant. He has submitted that by referring to a wrong Khata number, the Government land is being transferred by a private person to a private person. The entire transaction is fraudulent and calls for an action by the State Government.
Learned advocate Mr. S.R.C. Pandey has appeared for the writ petitioners. He has contested the Appeal. He has submitted that the writ petitioners had purchased the land under the sale-deeds and they are the owners of the lands in question. The Revenue authority has no jurisdiction to restrain the writ petitioners from transferring the land or to restrain the registration authority from registering the transfer.
Learned advocate Mr. Dev. Kr. Pandey has appeared for the State Government. He has taken us through the counter affidavit filed in the writ petition. The direction dated 9th August 4 Patna High Court LPA No.454 of 2011 (7) dt.04-09-2012 4/5 1985 has been produced in the Letters Patent Appeal pursuant to our order dated 7th August 2012. He has submitted that pursuant to the aforesaid order, the land in dispute was identified. The concerned revenue clerk has, after identifying the land in question, made a report. He has submitted that Plot No.4427, under transfer, is that of Khata No.1053 that belongs to the Government. He has also referred to the aforesaid direction dated 9th August 1985 issued by then District Collector, Bhojpur.
On perusal of the counter affidavit filed by the State Government in the writ petition and the Appeal and accompanying documents, prima facie, it appears that the Government land had been encroached upon by certain persons who have been transferring the same presenting themselves to be the owners of the land. To avoid detection, the land has been described as that of Khata No.639, although it is of Khata No.1053. Thus, the identity of land Khata No.639, Plot No.4427 under transfer is questionable. In other words, the land under transfer is not identifiable in juxtaposition of the revenue record. Pursuant to the said finding, the Additional Collector, Bhojpur has made the impugned order restraining the Sub-Registrar from registering the said transfer.
Evidently, the said order has been made pursuant to the interim order dated 4th April 1997 made by the Collector, Bhojpur in consonance with Section 21(1) of the Registration Act, 1908. The said sub-section (1) of Section 21 specifically provides, "No non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same."
5 Patna High Court LPA No.454 of 2011 (7) dt.04-09-2012 5/5Thus, any property transferred under the conveyance must be identifiable before it is registered. In other words, the property which cannot be identified, the registration of transfer of such property should be refused by the registering authority.
In our opinion, the authority below had, in view of the pending dispute, rightly refused the registration of the sale- deeds in question.
It is evident that the provisions under Section 21 of the Registration Act, 1908 were not brought to the notice of the learned single Judge.
For the aforesaid reasons, the Appeal is allowed. The judgment and order 10th February 2011 passed by the learned single Judge in C.W.J.C. No. 2801 of 2006 is set aside. C.W.J.C. No. 2801 of 2006 is dismissed.
It is clarified that anything said in this order shall not affect the merits of the Title Suit No.3/1992 pending before the learned Sub-Judge, Ara. Further; this order will be subject to the title as may be decided by the learned Sub-Judge, Ara.
(R.M. Doshit, CJ) (Ahsanuddin Amanullah, J) Pawan/-