Din Bandhu Chaudhary v. The State of Bihar through Secretary, Land Reforms & Ors.

Patna High Court CWJC No.2076 of 2006 (10) dt.16-12-2013 report of the Circle Officer, Manigachi bearing letter No. 921 dated 24.9.2005 as contained in Annexure-15. The petitioner has questioned the part map submitted by the private respondents before the Circle Officer placed at Annexure-14 and has also sought for a declaration that the area shown therein as 11 katha is not based on spot measurement and is incorrect. The petitioner has prayed for a direction to the respondent Nos. 4 to 6 to convey the land appertaining to Khata No. 661 C.S. Plot No. 667 R.S. Plot No. 2552 registered on 8.6.1982 vide registration No. 11466, in favour of the petitioner. The petitioner has lastly prayed for a declaration upholding the order dated 13.12.1982 of the L.R.D.C. Darbhanga allowing his Ceiling Pre-emption Case No. 48(C) of 1982-83. The land which is subject matter of dispute is part of Cadastral Survey Plot No. 667 of Khata No. 661 in Mauza Lagma Ram Bhadrapur District Darbhanga which was recorded in the name of Amrit Lal Choudhary and after his death vested in his son Satya Narayan Choudhary who has also deceased meanwhile. It is the case of the petitioner that the said Satya Narayan Choudhary had transferred a portion of the said plot admeasuring 16 decimals which is equivalent to 3 kathas and 13 dhurs from extreme West in favour of one Upendra Choudhary son of Hari 3 Patna High Court CWJC No.2076 of 2006 (10) dt.16-12-2013 Narayan Choudhary. According to the petitioner, the Survey Plot No. 667 admeasured 10 kathas and 6 dhurs though it was mentioned in the cadastral Khatiyan as 11 kathas and 9 dhurs. According to the petitioner, after the sale to Upendra Choudhary an area of 6 kathas 13 dhurs remained and out of which, the raiyat Satya Narayan Choudhary executed a sale deed in favour of the father of the petitioner Sahdeo Choudhary for 2 kathas 1 dhur on

19.10.1973. Again according to the petitioner, after the sale made to the father of the petitioner an area of 4 katha and 12 dhurs remained in the plot and according to the Cadastral Survey, an area of 5 kathas 6 dhurs remained towards the East. By a third sale deed dated 8.6.1982, the raiyat Satya Narayan Choudhary transferred 6 kathas of land in favour of the private respondent Nos. 4 to 6 and the boundary descriptions of the said land mentioned the father of the petitioner on its Southern and Western boundary. It is the case of the petitioner that respondent Nos. 4 to 6 were neither co-sharers nor were boundary raiyats and besides the sale deed has been executed in excess of the area remaining which according to the petitioner was only four kathas and 12 dhurs and even according to the Cadastral Survey it was 5 kathas and 15 dhurs. Thus according to the petitioner, the sale deed was in excess of the land available on ground. The father of the petitioner gathering knowledge about the sale deed upon its 4 Patna High Court CWJC No.2076 of 2006 (10) dt.16-12-2013 registration on 21.7.1982, filed an application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the „act‟) before the Deputy Collector, Land Reforms, Darbhanga within the prescribed period of 3 months on 28.8.1982 and which was registered as Land Ceiling Case No. 48(C) of 1982-83. In between, the original vendor executed another sale deed on

24.6.1982 for piece of land measured 9 dhurs in favour of Buchan Choudhary the grand father of the private respondent Nos. 4 to 6 which was registered on 11.8.1982. Even before the sale deed could be registered, the grand father Buchan Choudhary executed a deed of gift in favour of the private respondents on 31.7.1982 and which was registered only on 13.9.1982 i.e. after filing of the pre-emption application. According to the petitioner where even the sale deed of 6 kathas was in excess of the land available in Plot No.667 for transactions, the subsequent sale deed for 9 dhurs of land was an act of illegality since no land was available. The Deputy Collector, Land Reforms allowed the pre-emption application vide order passed on 13.12.1982 and which was questioned by the private respondents by filing an appeal bearing Land Ceiling Appeal No. 25 of 1982-83 and which was allowed by the Additional Collector, Darbhanga vide order passed on

4.12.1995 and affirmed by the revisional Court when the 5 Patna High Court CWJC No.2076 of 2006 (10) dt.16-12-2013 Additional Member, Board of Revenue dismissed the revision preferred by the petitioner bearing Revision Case No. 68 of 1996 vide order passed on 23.12.1997. The orders passed by the statutory authorities under the Act are placed on record at Annexures-5, 6 and 7 respectively. The petitioner questioned the said orders before this Court in C.W.J.C. No. 1673 of 1998 raising all issues including the issue that there was no land available for sale, and the writ application was disposed of with the following directions: “Accordingly, I remit the case to the D.C.L.R., Darbhanga for obtaining a report on local inspection, to be made by an officer of the rank of Circle Officer along with an Amin, in presence of petitioner and the respondent nos. 5 to 7. They will find out the total area of land on which one Upendra Choudhary is in possession (out of the aforesaid plot); the land on which the petitioner is in possession (out of the same plot) in pursuance of sale deed dated 19.10.73 and the total land on which the respondent nos. 5 to 7 are in possession (out of the same plot) in pursuance of sale deed dated 8.6.1982 and deed of gift dated 31.7.1982. If on such report, the total area is found to be less than 11 kathas then they will discard the deed of gift as was executed in favour of respondent nos. 5 to 7. On the other land, if the area is found to be near about 11 kathas 9 dhurs, then in such case, the application for pre-emption preferred by petitioner is to be rejected. Further I make it clear that no application for pre-emption is maintainable in respect to part of the vended land.” The order passed by this Court is placed at Annexure-8 of the proceedings. Following the order passed by this Court, a report was 6 Patna High Court CWJC No.2076 of 2006 (10) dt.16-12-2013 submitted by the Circle Amin to the Circle Officer on 14.9.2005 placed at Annexure-13 on the basis of the map submitted by the petitioner and according whereto the Plot No. 667 admeasured 45 decimals which is equivalent to 10 kathas and 6 dhurs. The private respondents also submitted a part map procured from Gulzarbagh press. Upon receipt of the second map from the private respondent which in fact was a part map, the Circle Amin, Manigachi submitted a second report on 19.9.2005 in which it has been stated that whereas as per the map given by the petitioner herein, the area of Plot No. 667 comes to 45 decimals which is about 10 kathas 6 dhurs but as per the map given by the private respondent, the area of the plot would be 50 decimals which is about 11 kathas 9 dhurs and thus there a difference of 5 decimals between the two maps. The report of the Circle Amin dated 19.9.2005 was forwarded to the Land Reforms Deputy Collector, Sadar, Darbhanga by the Circle Officer, Manigachi together with his report dated 24.9.2005 reporting this discrepancy occurring on the basis of two maps. The report of the Circle Officer, Manigachi is placed at Annexure-15. The Deputy Collector Land Reforms, Darbhanga vide impugned order dated 30.11.2005 rejected the first report submitted by the Circle Amin dated 14.9.2005 inter alia on grounds that it was an ex parte report while upholding the second report of the Circle Amin, Manigachi dated 19.9.2005 7 Patna High Court CWJC No.2076 of 2006 (10) dt.16-12-2013 which was forwarded by the Circle Officer along with his report dated 24.9.2005. The L.R.D.C. Darbhanga also upheld the claim of the private respondents that the Plot No. 667 admeasured 11 kathas 9 dhurs and having concluded as such, the pre-emption application of the petitioner was rejected, hence this writ petition. I have heard Mr. Sidheshwari Prasad Singh, learned Senior counsel for the petitioner, learned counsel for the State and Mr. Kamal Nayan Choubey, learned Senior counsel for the private respondents. The substance of argument of Mr. Singh appearing for the petitioner is that the subsequent sale by the vendor on 24.6.1982 was an act of fraud since after the sale made by the vendor Satya Narayan Choudhary in favour of the Upendra Choudhary followed by the sale made to the father of the petitioner late Sahdeo Choudhary on 19.10.1973 and the third sale to the private respondent on 8.6.1982, there was no land available in Plot No. 667 which could have been vended of. He thus submits that since this act of the vendor late Satya Narayan Choudhary was an act of fraud hence all subsequent acts get vitiated. Learned counsel has relied upon a judgment of the Supreme Court in support of such submission reported in AIR 1994 SC 853 (S.P. Chengalvaraya Vs. Jagannnath). It was submitted by Mr. Singh that following the direction of this Court in the writ petition as contained in 8 Patna High Court CWJC No.2076 of 2006 (10) dt.16-12-2013 Annexure-8, a report was submitted by the Amin on 14.9.2005 reporting 10 kathas and 6 dhurs being the area of Plot No. 667. It is stated that the map at Annexure 14 submitted by the private respondent is in fact a part map procured from Gulzarbagh and which is not authentic. It is submitted that map furnished by the petitioner which forms basis for the report dated 14.9.2005 is the authentic map. It was submitted that even when the Circle Officer has reported the discrepancy arising, for the reasons best known, the L.R.D.C. has upheld the claim of the private respondents to reject the pre-emption application and which is most illegal. It was further sought to be canvassed that since the vendor Satya Narayan Choudhary had initially sold the 9 dhurs of land in favour of the grand father of the private respondents namely Buchan Choudhary on 24.6.1982 and which was registered only on

11.8.1982, the gift deed being executed prior thereto on 13.7.1982 was illegal since the grand father did not acquire any title to execute a gift deed. It was submitted that even otherwise since prior to the registration of the gift deed, the petitioner had filed the pre-emption application hence he acquired a legal right under the provisions of Section 16(3) of the Act. The arguments of Mr. Singh has been contested by learned counsel for the State and Mr. Choubey, learned Senior counsel appearing for the private respondents. 9 Patna High Court CWJC No.2076 of 2006 (10) dt.16-12-2013 Mr. Choubey, has submitted that the Deputy Collector, Land Reforms has upon consideration of the entire materials available before him passed the order in the light of the directions of this court placed at Annexure-8 of the writ petition. He submits that since the order suffers from no infirmity hence it requires no interference. Referring to the list of the dates it was submitted by Mr. Choubey that initially the vendor sold 3 kathas of land in favour of one Upendra Choudhary which was followed by another sale of two kathas in favour of the writ petitioner and the third sale in favour of the private respondent of land admeasuring 6 kathas meaning thereby a total of 11 kathas were sold of by the vendor in favour of the different persons. He submits that since the Plot No. 667 admeasured 11 kathas 9 dhurs hence the remaining 9 dhurs of land was initially sold by the vendor in favour of the Buchan Choudhary, the grand father of the private respondents and who in turn gifted the land to the private respondents and by virtue thereof the private respondents became an adjoining raiyat. He submits that even if the gift deed was registered subsequent to the filing of the pre-emption application but since it was executed prior thereto, the moment the gift deed was registered, it would date back to the date on which it was executed i.e. 31.7.1982 and which admittedly was prior to the filing of the pre-emption application on 28.8.1982. Learned counsel in support of his submission has relied upon a 10 Patna High Court CWJC No.2076 of 2006 (10) dt.16-12-2013 judgment of this Court reported in 2008(3) PLJR 378 (Upendra Thakur Vs. The State of Bihar & Ors.). Learned counsel submits that a registration of document would date back to the date on which the document was executed and since all such acts were done prior to the filing of the pre-emption application hence there is no infirmity. Learned counsel in support has relied upon the following decisions: (a) 1970 PLJR 79 (Ram Chandra Srivastava and Prasidh Narain Singh) and (b) 1998(3)PLJR 373 (Most. Savitri Devi & Ors. Vs. State.) Responding to the contention of the learned counsel for the petitioner questioning the sale deeds as being sham transaction and an act of fraud, it was contended by Mr. Choubey that all issues appertaining to the veracity of either of the documents are no more available to the petitioner in view of the nature of order of remand passed in the earlier round of proceedings placed at Annexure-8. It was submitted that all such issues relating to the legality and validity of the sale deeds/gift deed would be held impliedly rejected and would stand barred on the principles of resjudicata/constructive resjudicata and issue estoppel, in the nature of the order passed in the earlier writ petition. I have heard learned counsel for the parties and I have 11 Patna High Court CWJC No.2076 of 2006 (10) dt.16-12-2013 perused the materials on record. Although extensive arguments has been advanced by learned Senior counsel(s) appearing for the either side, the issue involved in the present writ petition is in a very limited compass and that is; whether the L.R.D.C. Darbhanga has correctly carried out the order of this Court passed in C.W.J.C. No. 1673 of 1998 placed at Annexure-8 of the proceedings and whether the conclusion drawn by the L.R.D.C. is legally sustainable and can be upheld. In fact, this matter was heard on admission on

4.12.2007 and similar issue was framed by this Court while issuing notice to the private respondents. The order of this Court in the earlier round of contest has been reproduced by me hereinabove and in clear terms requires the L.R.D.C. to obtain a report on local inspection to be made by an officer of the rank of Circle Officer along with the local Amin and in presence of petitioner and the private respondents in order to find out the total area of land on which Upendra Choudhary, the petitioner and the private respondents are in possession in pursuance of the sale deeds/gift deed executed in their favour. The direction is as clear as crystal with no room for any confusion. Even when this Court specifically directed the L.R.D.C. to get a ground report prepared by local inspection of the plot in question, he has chosen to rely upon the maps supplied by the two parties. This certainly is not 12 Patna High Court CWJC No.2076 of 2006 (10) dt.16-12-2013 the scope or intent of the order passed by this Court. Clearly, the L.R.D.C. Darbhanga has overstepped its jurisdiction while passing the impugned order. Perusal of the order of the L.R.D.C. manifests that even while he has taken note of the directions of this Court as contained in the order passed in C.W.J.C. No. 1673 of 1998 he has totally misdirected himself in passing the impugned order on the basis of the two maps submitted by the parties which is not in consonance with the directions. The L.R.D.C. had to carry out the local inspection along with an officer in the rank of Circle Officer and the local Amin in the presence of the petitioner and the private respondents to find out the total area of the plot inclusive of the portion sold to Upendra Choudhary, the petitioner and the private respondent by way of sale deeds and gift. This duty cast upon the L.R.D.C. under the orders of this Court has been apparently ignored by him to pass the order impugned relying upon a report based upon two different maps given by the contesting parties giving two different projections as to the area of the plot. It is again not explained by the L.R.D.C. as to why he has chosen to uphold the map given by the private respondents and to reject the second one given by the petitioner. Even if the L.R.D.C. had chosen to go with the private respondents, he had to give a semblance of reason for upholding the contention of the private respondents and which 13 Patna High Court CWJC No.2076 of 2006 (10) dt.16-12-2013 conspicuously missing. For the reasons aforementioned, the order dated 30.11.2005 passed by the L.R.D.C. Darbhanga impugned at Annexure-16 cannot be upheld and is set aside and the matter is remitted back to the L.R.D.C. Darbhanga to pass a fresh order in the light of the specific directions contained in the order of this Court passed in C.W.J.C. No. 1673 of 1998 as contained in Annexure-8 in accordance with law and in the manner prescribed in the order of this Court under reference. The order should be passed expeditiously and preferably within three months of receipt/production of a copy of this order. Before parting, this Court would caution the L.R.D.C. Darbhanga to be more careful in future and not repeat the mistake. The writ petition is allowed. (Jyoti Saran, J.) Bibhash/-