Patna High Court
Kamla Prasad Mishra vs State Of Bihar And Ors. on 3 January, 1985
Equivalent citations: AIR1985PAT364, 1985(33)BLJR164, AIR 1985 PATNA 364, (1985) BLJ 570 (1985) PAT LJR 164, (1985) PAT LJR 164
ORDER Hari Lal Agarwal, J.
1. This application arises out of a proceeding under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961 in which a proceeding was started against the petitioner in the year 1973 and 50.21 acres of land have been found surplus. The petitioner has so far failed before all the authorities in saving the properties but before the Board of Revenue there has been a partial remand. However, I am not concerned with the question for the remand.
2. Before me the impugned order has been assailed primarily on two grounds i.e. (i) that 9.55 acres of land transferred by the petitioner in the name of his wife Ram Jyoti who was living separately from the petitioner could not be included under the holding of the petitioner; and (ii) that the revenue authorities have committed an apparent error of law in adding another area of 5.98 acres of land which was dedicated to the deities namely Sri Ram Jankijee, as far back as in the year 1913.
3. The Board of revenue in para 5 of its resolution has said that "This point was not pressed during the hearing before this Court. The learned lower court had rightly held that the lands possessed by the first wife as well as by the second wife would be clubbed along with the lands held by the petitioner".
4. Although the first point as appears from the resolution of the Board was not pressed there, learned counsel, however, pressed the point in this Court and also placed reliance on the case of Arti Devi v. State of Bihar 1980 B. B. C J. (HC) 23. It is not the case of the petitioner that the second wife had separated from the petitioner nor it has been his case that the property in question claimed in the name of the second wife was her stridhan property, and therefore, that could not be claimed together. It is difficult to accept the contention of the learned counsel for the petitioner as the definition of "Family" and "Landholder" in the ceiling Act does not warrant the exclusion of the properties held by the members of the family. In the case relied upon by the learned counsel, apart from taking a view contrary to the other cases of this Court, the fact of that case was that the partition has taken place between the wife and the husband who thereafter had taken a second wife in which the properties allotted were separately mutated in her name much before the 'appointed day'. According to the very definition of the expression "Landholder", the person and his or her spouse and their minor children have to be taken together as a unit of a family. Therefore, the principle laid down in the case of Arti Devi would have no application in the present case, as it was observed in that case that on that account the first wife ceased to be a member of the family of the male landholder and made her an independent entity in law.
5. Reference in this connection may be made to another Bench decision of this Court in the case of Mahabir Prasad v. The State AIR 1976 Pat 256 (Para 22) where it was observed that "Section 5 creates family as a unit for the purpose of the ceiling law. Explanation to Section 5 makes it clear that the lands held by the family either individually or jointly shall be deemed to be owned and held by the family. It is thus clear that partition amongst the members of the family cannot do away with the effect of definition of the family as already noticed. It is thus clear that whether there is a partition or not the lands held by a person, his or her spouse and minor children will have to be treated as one unit for the purpose of determining whether any land is held by the family, as defined, in excess of the ceiling area". Observations in the former decision of this Court in Arti Devi's case (1980 B. B. C. J. (HC) 23) (supra) are in my view somewhat conflicting with the above observations extracted from Mahabir Prasad's case (AIR 1976 Pat 256). Earlier case was not noticed in the latter case and I find myself in complete agreement with the view expressed by the learned Judges in Mahabir Prasad's case. First point has, therefore, no substance and must fail.
6. The second point indicated above is that the power of the Collector to enquire into the validity of transaction was only with reference to the date mentioned in Section 5(l)(ii). The power can be exercised from the appointed day and not before that, and inasmuch as the Samarpannama was of the year 1913 much before the ceiling law was even conceived, the revenue authorities had committed an apparent error of jurisdiction in examining the correctness of the Samarpannama. The submission of the learned counsel for the petitioner on this score is entirely erroneous and must be rejected. Reasoning of the authorities is that in spite of the execution of the deed of Samarpannama in the revisional survey the lands dedicated to the deities were recorded in the name of the petitioner's family and therefore, in order to chase the lands of the landholder to find out the surplus area held by the petitioner, they could still examine as to whether the Samarpannama had become operative or remained simply a paper transaction. For this purpose a limited enquiry could be permissible. The revenue authorities have not purported to examine into the question of genuineness or otherwise of the endowment, but they have simply proceeded to examine the extent of the area of land owned and possessed by the landholder and for this purpose, in my view, they were quite competent to see as to whether any purported disposition of land had been effective or not. On local enquiry and the materials on the records and appreciation of the evidence that was put on the record by the parties the finding of fact has been recorded that the land was dedicated to the deities under the Samarpannama but it was never acted upon.
7. The learned counsel, however, emphasised on a Ladabi deed which was executed in the year 1973 by the petitioner in favour of the deities and it was contended that his right, title and interest could not be deemed to be subsisting. This argument, in my view, is also fallacious inasmuch as in view of the earlier finding that the dedications to the deities remained simply a paper transaction thereby the property still remained with the family of the petitioner, there was no effective transfer of ownership from the petitioner unto the deities. In that event the execution of the Ladabi was entirely misconceived in law and could not improve the position. The contention of the learned counsel for the petitioner cannot be accepted. The application, therefore fails and is hereby dismissed.