Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18219 of 2011 ====================================================== Satyendra Nath Sharma S/o Late Bhola Nath Sharma R/o Vill May, P.S. Parbalpur, Distt-Nalanda .... .... Petitioner/s Versus 1. The State of Bihar 2. The Collector, Nalanda at Biharsharif 3. The Deputy Collector Land Reforms, Hilsa, Nalanda 4. The Commissioner, Patna Division, Nalanda 5. The Circle Officer, Parbalpur, Nalanda 6. The Circle Inspector, Parbalpur, Nalanda .... .... Respondent/s ====================================================== Appearance: For the Petitioner/s : Mr. Sanjay Prasad For the Respondent/s : Mr. Ajay Bihari Sinha SC 19 ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 04. 12-12-2013 Heard Mr. Sanjay Prasad, learned counsel appearing for the petitioner and Mr. Rajesh Ranjan, Assisting Counsel to S.C. 19 for the State.
Legal Reasoning
The petitioner is aggrieved by the order dated 01.06.2011 passed by the Land Reforms, Deputy Collector, Hilsa, Nalanda in Dakhil Kharij Appeal Case No. 1 of 2010-11, whereby the appeal has been dismissed, thus affirming the order dated 23.03.2010 passed by the Circle Officer, Parbalpur, Nalanda in Dakhil Kharij Case No. 500 of 2006-07, whereby the Circle Officer has rejected the mutation application of the petitioner. The two orders are impugned at Annexure-11 and 10 respectively of the writ application. Patna High Court CWJC No.18219 of 2011 (4) dt.12-12-2013 2 Facts of the case briefly stated leading to the impugned order as according to the petitioner is that by a Sada Hukumnama, the land which is a plot bearing Khata No. 295, Khesra No. 535 having an area of 80 decimals situated at village May, P.S. Parbalpur in the District of Nalanda was settled by the ex-landlord in favour of the ancestors of the petitioner Raj Keshwar Singh on 30th Jeth 1345 i.e. in and around the year 1938. According to the petitioner the name of the ancestors of the petitioner also finds mention in the returns filed by the Ex- Zamindar and the rent of the land was also being paid by the ancestors of the petitioner. Since the land was recorded in the Khatiyan as Gair Majarua Aam land, hence, the State endeavoured to settle the same by way of open bid and which was questioned by the ancestors of the petitioner through Title Suit No. 227 of 1961 / 24 of 1965 before the Additional Munsif, Nalanda at Bihar Sharif praying therein inter alia for a declaration that the plaintiff had acquired permanent tenancy rights over the suit land and thus was entitled for recovery of possession thereof as well as for claiming future mesne profit. The suit was dismissed by the learned Additional Munsif by judgment and decree dated 29.06.1965. Being aggrieved the ancestors of the petitioner filed Title Patna High Court CWJC No.18219 of 2011 (4) dt.12-12-2013 3 Appeal No. 32 of 1965 / 13 of 1968 and the appellate court below upon consideration of the contest led by the parties, allowed the appeal vide judgment and decree dated 23.12.1970. Copy of the appellate court judgment has been placed at Annexure-1 to the writ petition. The State being aggrieved by the decree of the appellate court preferred Second Appeal No. 135 of 1971 before this Court and which dismissed vide judgment and decree dated 09.12.1971. Thus the decree of the appellate court stood affirmed and attained finality as no further appeal was preferred by the State according to the petitioner.
Legal Reasoning
It is stated by Mr. Sanjay Prasad appearing for the petitioner that in view of the position aforementioned, an execution case bearing Execution Case No.1 of 1974 was filed by the petitioner and on 2.03.1974 the plaintiffs were handed over the possession of the suit property. It is further the case of the petitioner that the State not satisfied, initiated several encroachment proceedings all of which were subsequently dismissed. An attempt by one Narayan Prasad to question the possession of the petitioner over the suit property by filing Title Suit No. 27 of 2000 also was negated when the suit was dismissed on 17.10.2006 by the Civil Judge-II, Hilsa on grounds of being barred on the principles of res judicata. It is the case of the Patna High Court CWJC No.18219 of 2011 (4) dt.12-12-2013 4 petitioner that in view of the position settled under the decree of the Civil Court, the petitioner filed a petition before the Circle Officer, Parbalpur for mutation giving rise to Dakhil Kharij Case No. 500 of 2006-07 but the same was rejected by order dated 23.03.2010 placed at Annexure-10 to the writ petition after seeking a report thereon and which mentioned the position of the land as Gair Majarua Aam in the survey khatiyan. The Circle Officer on the solitary ground that there is no provision for settlement of Gair Majarua Aam land has rejected the application of the petitioner and which view stands affirmed in the appeal preferred by the petitioner before the Land Reforms, Deputy Collector, Hilsa bearing Dakhil Kharij Appeal Case No. 1 of 2010-11 which was dismissed on 01.06.2011. I have heard learned counsel for the parties and I have perused the materials on record. Insofar as the right of the petitioner to continue over the land in question is concerned, it stands fortified by the judgment and decree of the Civil Court and which decree stands affirmed up to this Court in Second Appeal. Meaning thereby the right of the petitioner to continue over the land which is subject matter of the present proceedings goes uncontested and the State having lost the contest cannot interfere with the same. Even the attempt by the local villagers to interfere Patna High Court CWJC No.18219 of 2011 (4) dt.12-12-2013 5 with the possession of the petitioner over the land in question stood negated when Title Suit No. 27 of 2000 was dismissed on 17.10.2006 by the Civil Judge-II, Hilsa. Thus in view of the legal position that emanates by virtue of the decree of the Civil Court of competent jurisdiction, there was no infirmity on the part of the petitioner to have sought his mutation over the property and the State having lost its contest up to this Court certainly could not reject the same on the anvil of the nature of land being Gair Majarua Aam. Insofar as the issue of right of a settlee over Gair Majarua Aam land and his continuation thereon by virtue of a settlement under a Hukumnama is concerned, this issue stands settled by a judgment of this Court reported in 1959 BLJR 311 in which it has been inter alia held that if a settlement has been made on a Gair Majarua Aam land before vesting and it continues until the date of vesting of the land i.e. 1956, it creates a legal right on the settlee. Thus in view of the legal position reflected from the decree of the Civil Court and the judgment of this Court referred to above, the order impugned cannot be upheld and is set aside.
Decision
The writ petition is allowed. S.Sb/- (Jyoti Saran, J)