Patna High Court
Suman Kumar Choudhary vs The State Of Bihar & Ors on 30 June, 2017
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court CWJC No.14959 of 2007 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14959 of 2007
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Suman Kumar Choudhary
.... .... Petitioner/s
Versus
The State of Bihar & Ors
.... .... Respondent/s
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Appearance:
For the Petitioner/s : Mr. Suraj Samdarshi
Mr. Somit Kumar Jha
Mr. Indrajesh Kumar
For the Respondent/s : Mr. AC to SC I
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA
CAV JUDGMENT
Date: 30-06-2017
1. This petition has been filed under Article 226 of the
Constitution of India for setting aside the order dated 14.10.2003
passed by the Additional Collector, Darbhanga in Case no. 15/1986-
87 purported to be under section 4(h) of the Bihar Land Reforms Act,
1950 (in short "Act") by which and whereunder the Additional
Collector, Darbhanga recommended for cancellation of Jamabandi no.
137 standing in the name of Smt. Shakuntala Chaudharian on the
ground that lands of khata nos. 39, 66 and 55 were recorded as
Gairmajarua khas kaisare Hind and the concerned landlords had got
no right to settle the aforesaid lands. The Additional Collector made
recommendation for cancellation of the aforesaid Jamabandi under
section 4(h) of the Act.
2. The brief facts of the present case are that Tauzi no.
1323 situate in village Gangwara (Darbhanga) belonged to ex-
landlords Chaudhary Kedarnath Thakur and Ajij Bahadur Khan
Pagamabarpur Estate. Ex-landlord Chaudhary Kedarnath Thakur
Patna High Court CWJC No.14959 of 2007 2
made settlement of 8 bighas 11 kathas 4 dhurs lands of his share with
one Babu Padamlal Prasad and granted him receipts in 1342 fausli
equivalent to the year 1935. The ex-landlord Chaudhary Kedarnath
Thakur used to issue receipts to his settlee till vesting of his estate
after coming into force of Bihar Land Reforms Act, 1950. Similarly,
other landlord, namely, Ajij Bahadur Khan settled his lands with the
aforesaid Babu Padamlal Prasad. After the above stated settlement,
settlee Babu Padamlal Prasad came in possession of the lands in
question and used to pay rent to ex-landlord till 1947. Subsequently,
settlee Babu Padamlal Prasad transferred the entire 9 bighas 13 kathas
8 dhurs in favour of Late Balkrishna Chaudhary through registered
sale deed dated 27.04.1947 and thereafter Late Balkrishna Chaudhary
came in possession of the lands in question. The above stated Babu
Padamlal Prasad used to pay rent to ex-landlords vide Jamabandi no.
47 and 34 till the year 1947. Late Balkrishna Chaudhary used to pay
rent receipts to the ex-landlord till vesting the aforesaid lands in the
State. Late Balkrishna Chaudhary used to pay rent to the State of the
Bihar after vesting of lands in State. However, the aforesaid
Balkrishna Chaudhary died issueless and thereafter, his wife, namely,
Smt. Shakuntala Chaudharian used to pay rent to the State of the
Bihar. The above stated Jamabandi nos. 47 and 34 were amalgamated
in the year 1972-73 and a new Jamabandi no. 137 was created in the
name of Smt. Shakuntala Chaudharian who subsequently, died in the
year 1980 and the petitioner, being legal heir of the aforesaid Smt.
Shakuntala Chaudharian, came in possession of lands in question. In
course of survey operation, lands in question were recorded as Bhatta
Patna High Court CWJC No.14959 of 2007 3
and Khanda and the petitioner dug some portions of the lands and
made it for growing makhana and he has been growing makhana over
some portion of lands in question but the Circle Officer, Darbhanga on
the order of the Commissioner, Darbhanga registered Misc. Sairat
Case no. 6/1984-85 and issued show cause notice to father of the
petitioner and others and having heard the parties vide order dated
30.7.1984, Circle Officer, Darbhanga found that disputed lands were of Sairayati lands and also took steps for settlement of the aforesaid lands. However, father of the petitioner filed petition before DCLR, Darbhanga which was registered as Sairate Survey case no. 7/1984-
85. DCLR, Darbhanga having heard the parties vide his order dated 14.8.1985 recommended for cancellation of Jamabandi with respect to lands appearing in khata no. 66 khesara nos. 5, 6, 8 and 14 recorded as kaisare Hind when he came to the conclusion that ex-landlord had no right to settle lands of khata nos. 39 and 55 recorded as Gairmajarua kaisare Hind in cadastral survey. The father of the petitioner challenged the order of D.C.L.R before the Additional Collector, Darbhanga which was registered as Sairat Misc. petition no. 15/1985- 86 which was disposed of by learned Additional Collector, Darbhanga vide impugned order dated 14.10.2003 holding that the lands in question were illegally transferred by ex-landlords and the Additional Collector recommended for cancellation of Jamabandi no. 137 in respect of lands of khata nos. 39, 66 and 55 exercising the power vested under section 4(h) of the Act.
3. Learned counsel appearing for the petitioner submits that admittedly, late Chaudhary Kedarnath Thakur and Ajij Bahadur Khan Patna High Court CWJC No.14959 of 2007 4 were ex-landlords and it is also an admitted position that both the aforesaid ex-landlords settled lands in question with Babu Padamlal Prasad who subsequently, transferred the lands in question to Balkrishna Chaudhary by executing registered sale deed. Learned counsel for the petitioner further submits that the Additional Collector, Darbhanga passed the impugned order under section 4(h) of the Act but he failed to give findings that disputed lands were transferred after 01.01.1946 with an object of defeating any provision of Bihar Land Reforms Act, 1950 or causing loss to the State or obtaining higher compensation under the aforesaid Act. He further submits that before exercising the power vested under section 4(h) of the Act, the Additional Collector is bound to give specific finding to this effect that lands had been transferred after 01.01.1946 with an object to defeat the provision of Bihar Land Reforms Act, 1950 or to cause loss to the State Government but in the present case, no finding to this effect has been given by the Additional Collector that the lands in question were transferred after 01.01.1946 and moreover, it is an admitted case of the parties that ex-landlords settled the lands in question to Babu Padamlal Prasad in 1342 fasuli equivalent to the year 1935. Therefore, section 4(h) of the Act was not applicable in the present case.
4. He further submits that under section 4(h) of the Act the Collector has only power to make enquiry in respect of any transfer made after 01.01.1946 and he is bound to give specific finding in this regard that transfer has been made after 01.01.1946, therefore, the Collector has got no power to make enquiry in respect of lands which Patna High Court CWJC No.14959 of 2007 5 were transferred prior to 01.01.1946. In support of his contentions, he relies upon decision of Sri Rama Prasad Singh and others vs. The State of Bihar and others reported in 1990 (I) PLJR page 165. He also relies upon decision of Jagarnath Rai vs. The State of Bihar and others reported in AIR 1973 Patna page 62.
5. He further submits that no doubt, disputed lands were recorded as Gairmajarua khas kaisare Hind in cadastral survey but admittedly, cadastral survey entry was made for more than 100 years ago and by efflux of time nature of lands had already been changed and that was the reason at the time of preparation of revisional survey khatiyan, nature of the lands was recorded as Bhatta and Khanda. He further submits that revenue officials were under misconception that Gairmajarua khas kaisare Hind lands could have never been settled whereas in several decisions of this court as well as Apex court, it has already been settled that even Gairmajarua khas kaisare Hind lands could be settled. He further submits that in cases where dispute, which involves question of title, right and possession specifically long standing possession can not be decided in summary proceeding and only forum available to the State for cancellation of Jamabandi is civil court and not in a summary proceeding by a revenue officer of the State. Continuing his submissions, he would submit that when ex- landlord Chaudhary Kedarnath Thakur settled the lands in question with Babu Padamlal Prasad in 1342 fasuli, Jamabandi no. 47 of the aforesaid land was created in the name of Babu Padamlal Prasad and similarly, when Ajij Bahadur Khan settled the land, Jamabandi no. 34 was created and subsequently, in the year 1972-73 both the aforesaid Patna High Court CWJC No.14959 of 2007 6 Jamabandi numbers were amalgamated and a new Jamabandi no. 137 was created in the name of Smt. Shakuntala Chaudharian and, therefore, the aforesaid facts go to show that not only vendor of Balkrishna Chaudhary was in possession but also after purchase of the lands in question Late Balkrishna Chaudhary came in possession of the lands in question and after his death his wife Smt. Shakuntala Chaudharian and subsequently, petitioner came in possession of the aforesaid lands. Therefore, the aforesaid facts establish that dispute of title and long possession is involved in the present case but the revenue officials without adopting legal procedure passed order for cancellation of Jamabandi in a summary proceeding which is not permissible in the eyes of law.
6. Learned counsel for the petitioner relied upon decision of Maya Devi and ors vs The State of Bihar and ors reported in 2014 (3) PLJR page 584 and decision of Yadunandan Singh vs The State of Bihar and others reported in 2016 (3) PLJR page 237 which follows the decision of Maya Devi (supra). He also relied upon a decision of Khiru Gope and others vs Land Reforms Deputy Collector, Jamui and others reported in AIR 1983 Patna page 121.
7. On the other hand, learned AC to SC 1 appearing for the respondents refuted the above stated submissions arguing that admittedly, in cadastral survey, disputed lands were recorded as Gairmajarua khas as well as kaisare Hind and therefore, ex-landlords had no right to settle the disputed lands with any one. He further submits that no document was produced by the petitioner to prove that the lands in question were ever settled with Babu Padamlal Prasad Patna High Court CWJC No.14959 of 2007 7 and, therefore, the Additional Collector, Darbhanga rightly passed the order of cancellation of Jamabandi no. 137. He further submits that the Additional Collector has power to make recommendation for cancellation of Jamabandi, if he comes to the conclusion that land has been transferred after 01.01.1946 with an object to defeat the provision of Bihar Land Reforms Act, 1950 or to cause loss to the State or to seek higher compensation under the aforesaid Act and in the present case, the Additional Collector came to the conclusion that the transfer of the lands in question is sought on the basis of fictitious documents and, as a matter of fact, no transfer of the lands in question has taken place in the eyes of law.
8. Certain facts are admitted in this matter. It is admitted position that controversy relates to khata no. 39 pertaining to khesra nos. 4, 7, khata no. 66 pertaining to khesra nos. 5, 6, 8, 14, khata no. 55 pertaining to khesra no. 13 of village Gangwara District Darbhanga. It is also an admitted position that khesra nos. 4, 7 and 13 have been recorded as Gairmajarua khas whereas khesra nos. 5, 6, 8 and 14 have been recorded as kaisare Hind. It is also an admitted position that late Chaudhary Kedarnath Thakur and Ajij Bahadur Khan were ex-landlords of the aforesaid lands. The petitioner claims that ex-landlord Chaudhary Kedarnath Thakur settled 8 bighas 11 kathas 4 dhurs disputed lands to Babu Padamlal Prasad in 1342 fasuli and also issued rent receipts and, therefore, in respect of 8 bighas 11 kathas 4 dhurs lands, it is specific claim of the petitioner that the aforesaid lands were settled by ex-landlord Chaudhary Kedarnath Thakur in 1342 fasuli equivalent to the year 1935. The aforesaid Patna High Court CWJC No.14959 of 2007 8 settlement is said to have been made much before 01.01.1946 and, therefore, learned counsel for the petitioner rightly submitted that section 4(h) of the Act is not applicable in respect of the aforesaid settlement. The petitioner further claims that the aforesaid Babu Padamlal Prasad transferred the aforesaid lands to Late Balkrishna Chaudhary ancestor of the petitioner by executing registered sale deed dated 27.04.1947. Therefore, petitioner is making his claim on the aforesaid lands on the basis of the aforesaid registered sale deed. So far as land settled by Ajij Bahadur Khan is concerned, Circle Officer, Darbhanga mentioned in the order dated 30.7.1984 that the aforesaid land was said to be settled by Ajij Bahadur Khan in 1361 fasuli equivalent to the year 1955 i.e. after commencement of the Act. However, revenue officials rejected the claim of the petitioner on the ground that ex-landlords had no right to settle the lands recorded as Gairmajarua khas kaisare Hind but in Maya Devi case (supra) and several other cases, it has already been set at rest by holding that even lands of Gairmajarua khas kaisare Hind could be settled. It is an admitted position that in cadastral survey entry, disputed lands were recorded as Gairmajarua khas kaisare Hind but admittedly, cadastral survey was made for more than 100 years ago and at the time of revisional survey operation, lands in question were recorded as Bhatta and Khanda. However, when Circle Officer, Darbhanga made spot inspection, he found crop of makhana over disputed plots and also came to know that the petitioner used to harvest makhana over the plots in question and, therefore, it is obvious from the aforesaid facts that the petitioner has been coming in possession of the disputed plots Patna High Court CWJC No.14959 of 2007 9 since long and a serious question of title and possession is involved in the present matter which could not have been decided in a summary proceeding.
9. It is also an admitted position that two separate Jamabandies were opened in the name of Babu Padamlal Prasad and when he transferred the aforesaid lands by executing sale deed, subsequently, the aforesaid two jamabandies were amalgamated and one new Jamabandi was created in the name of Smt. Shakuntala Chaudharian who was widow of Late Balkrishna Chaudhary, vendee of Babu Padamlal Prasad. Therefore, the aforesaid facts clearly go to show that initially, Jamabandi of the disputed lands was opened in the name of settlee namely, Babu Padamlal Prasad and subsequently, in the name of vendee Late Balkrishna Chaudhary and the aforesaid Jamabandies were never challenged by the State. However, in the Act, there is nowhere any provision which authorizes to revenue authority to cancel Jamabandi.
10. No doubt, Additional Collector, Darbhanga has made recommendation under section 4(h) of the Act for cancellation of Jamabandi but in his impugned order, there is nothing to show that he came to the conclusion that lands in question were transferred with an object to defeat the provision of Act or to cause loss to the State or to claim higher compensation under the aforesaid Act and, therefore, in absence of the aforesaid findings, impugned order is bad in law.
11. So far as I.A. no. 2879/2010 is concerned, no one appeared to press the aforesaid interlocutory application. Accordingly, the aforesaid interlocutory application stands dismissed in default. Patna High Court CWJC No.14959 of 2007 10
12. On the basis of the aforesaid discussions, I am of the opinion that impugned order can not sustain and is liable to be set aside. Accordingly, impugned order dated 14.10.2003 passed in Case no. 15/1986-87 is, hereby, set aside. However, it is made clear that respondents may get their right, tile and possession over the disputed plots declare before competent authority, in accordance with law and this judgment shall not cause any prejudice to them, if they do so.
shahid (Hemant Kumar Srivastava, J) AFR/NAFR NAFR CAV DATE 2.3.2017 Uploading Date 3.7.2017 Transmission 3.7.2017 Date