Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7033 of 2005 ====================================================== 1. Ram Naresh Ram 2. Ram Bachan Ram 3. Prabhu Ram All sons of Sarju Ram, residents of village - Kochar, P.O. – Sone Nagar, P.S. – Barun, District - Aurangabad. .... .... Petitioners Versus 1. The State Of Bihar 2. Additional Collector, Aurangabad, District - Aurangabad. 3. D.C.L.R., Aurangabad, District - Aurangabad. 4. Circle Officer, Barun, District – Aurangabad. 5. Deorani Devi, wife of Khedan Singh Resident of village Kochar, P.O. Sone Nagar, P.S. Barun, District Aurangabad. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Sri Shashi Shekhar Dwivedi Mr. Ravi Shanker Dvivedi Mr. Ranjan Kumar Dubey Mr. Chandra Kant Mr. Lakshman Lal Pandey For the Respondent/s : Mr. (Aag3) Mr. Raj Kishor Prasad-1 Mr. Lal Bahadur Singh Mr. Ramakant Yadav Mr. Bachan Jee Ojha ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 7 01-05-2013 Heard Sri Shashi Shekhar Dwivedi, learned senior counsel for the petitioners , Sri R.K. Priyadarshi, learned A.C. to Principal Additional Advocate General, who appears on behalf
Legal Reasoning
of respondent no. 1 to 4/State and Sri Bachan Jee Ojha, learned counsel , who has appeared on behalf of respondent no. 5. Petitioners, in the present writ petition have prayed for Patna High Court CWJC No.7033 of 2005 (7) dt.01-05-2013 2/7 quashing of an order dated 13.12.2004 passed by respondent no. 2 / Additional Collector, Aurangabad, in Mutation Revision No. 118 of 2004-05. By the said order learned Additional Collector, has set aside order dated 25.3.2004 passed in Mutation Appeal No. 1 of 2003-04 by D.C.L.R., Aurangabad, and order dated 22.2.2003 passed by Circle Officer, Barun, Aurangabad. Short fact of the case is that on the strength of registered sale deed executed by one Dulhin Mangari Devi on 26.10.2002, the respondent no. 5 approached for mutation of the land in question in her favour. Before the Circle Officer petitioners appeared and filed objection that petitioners had already purchased the land in question on 16.7.1973 through four registered sale deeds duly executed by Dulhin Mangari Devi. The Circle Officer after entertaining the objection, dismissed the Mutation Case No. 1221 of 2002-03. Thereafter, respondent no. 5 preferred Appeal vide Mutation Appeal No. 1 of 2003-04, which too, was rejected by the D.C.L.R., Aurangabad. The respondent no. 5, finally, preferred a Revision vide Mutation Revision Case No. 118 of 2004-05 and the learned Additional Collector, Aurangabad, by order dated 13.12.2004 allowed the Revision of respondent no. 5 and directed for allowing mutation in the name of respondent no. 5. The order of Revisional Court Patna High Court CWJC No.7033 of 2005 (7) dt.01-05-2013 3/7 i.e. order dated 13.12.2004 is under challenge before this court. Sri Shashi Shekhar Dwivedi, learned senior counsel for the petitioners, has argued that, though in 1973 sale deeds were executed by Dulhin Mangari Devi and same were registered; since some consideration amount was not paid, Chirkuit was kept with the vendor Dulhin Mangari Devi and that was to be exchanged after paying rest of the consideration amount. It has further been pleaded that since the vendor was not performing part of the contract by handing over Chirkuit, a suit vide Title Suit No. 51 of 1974 was filed by the petitioners, which was decreed in favour of petitioners. It has further been claimed that after the judgment and decree, Chirkuit was given to the petitioners by the vendor. However, the vendor had also executed a deed of cancellation, which was also issue in the Title Suit No. 51 of 1974. It has further been pleaded that in consolidation records also name of petitioners was recorded, and as such, the Circle Officer had rightly rejected the mutation case filed by the respondent no. 5, which was approved by the Appellate Court i.e. D.C.L.R. by assigning detailed reason. It has been argued that the learned Revisional Court, without looking into the reasons which were assigned by both the courts below, in a perfunctory manner, has allowed the revision case by order Patna High Court CWJC No.7033 of 2005 (7) dt.01-05-2013 4/7 dated 13.12.2004, which is fit to be set aside. Sri Bachan Jee Ojha, learned counsel appearing on behalf of respondent no. 5, in whose favour Revisional Court has passed order, while opposing the prayer of the petitioners submits that respondent no. 5 had applied for mutation and a Mutation Case No.1221 of 2002-03 was initiated on the basis of registered sale deed duly executed by the land owner i.e. Dulhin Mangari Devi. He further submits that sale deeds, which were executed by Dulhin Mangari Devi in favour of petitioners were already cancelled by deed of cancellation in the year 1974. He further submits that the judgment and decree of Title Suit No. 51 of 1974 was conditional. He submits that by the said judgment and decree, the learned court below had directed the petitioners to deposit the remaining amount in court, which was never deposited, and as such, the judgment and decree passed in Title Suit No. 51 of 1974 was never given effect, and as such, on the basis of said judgment and decree the petitioners’ claim is not sustainable. He further submits that the sale deed, which was executed by the same land owner i.e. Dulhin Mangari Devi in favour of respondent no. 5 in the year 2002, was never assailed by the petitioners. He further submits that since the petitioners had never deposited the remaining consideration amount, in the Patna High Court CWJC No.7033 of 2005 (7) dt.01-05-2013 5/7 light of the aforesaid judgment and decree, they had not received certified copy of the sale deeds, and this was the reason for non production of the same before either of the courts below. Accordingly, it has been argued that order passed by the Revisional Court requires no interference and the writ petition is fit to be rejected. At the time of argument, Sri Dwivedi, while referring to statement made in paragraph no. 11 of the writ petition, has argued that remaining consideration amount was already paid to the vendor in cash, and thereafter, a receipt was given by Mangari Devi on three revenue stamps and true copy of the said receipt has been brought on record as Annexure - 5 to the writ petition. However, since the original sale deeds were lost by the vendor herself, the petitioners are not in a position to produce the same. In reply to this statement, Sri Ojha has referred to averment made in paragraph no. 4 of its counter affidavit i.e. counter affidavit of respondent no. 5. He submits that the petitioners had never deposited the consideration amount in court as per the judgment and decree and the receipt which has been brought on record is a forged and fabricated document. Besides hearing learned counsel for the parties, I have also perused the materials available on record. From the Patna High Court CWJC No.7033 of 2005 (7) dt.01-05-2013 6/7 judgment and decree , copy of same has been brought on record as Annexure – 4 to the writ petition, it is evident that while passing ex-parte judgment and decree, the learned Sub Judge, Aurangabad, in Title Suit No. 51 of 1974 has ordered as follows:- “That the suit is decreed exparte with exparte cost. Hearing fee at Rs. 20/-. The plaintiffs are directed to deposit a sum of Rs. 6282/- within 2 months from the date of this decree and the defendant is directed to hand over the registration receipts for the sale-deeds or the sale-deeds if withdrawn by her within a period of 3 months from the date of this decree and prays for withdrawing the amount deposited by the plaintiffs as ordered. The plaintiffs are declared to be rightful owner of the suit properties having right, title and interest in it. The cancellation of sale deed registered on 17.7.73 and executed on 16.7.73 by the defendant in favour of the plaintiffs is held to be invalid. Aforesaid order makes it clear that the judgment and decree was to be given effect only after deposit of the remaining consideration amount in the court. No such averment has been
Decision
made in the writ petition, rather an unsustainable explanation has been given in paragraph no. 11 of the writ petition, which may not be accepted as correct. Moreover, once the respondent no. 5 on the strength of registered sale deed had approached the Circle Officer for mutation, at the time of entertaining objection of the petitioners, it was required for him to ask the petitioners to produce certified copy of the sale deeds, which were never Patna High Court CWJC No.7033 of 2005 (7) dt.01-05-2013 7/7 produced. Every aspect was considered by the Revisional Court, and thereafter, the Revisional Court has set aside both the orders of Circle Officer as well as D.C.L.R. It has also been noticed that the sale deeds, which were executed by Dulhin Mangari Devi in favour of the petitioners in 1973 were immediately cancelled through Cancellation Case No. 3957 of 1974. Though, said cancellation was unsettled by learned Sub Judge, but condition was imposed to pay the remaining consideration amount, which has not been substantiated by the petitioners. Only an unsustainable plea was taken in respect of payment of the said amount to the vendor. Moreover, at the time of argument, it was candidly accepted by Sri Dwivedi, learned counsel for the petitioners, that petitioners, till date, have not taken any step for getting the sale deed executed in favour of respondent no. 5 in respect of the same land as void by filing appropriate suit. In that view of the matter, the court is of the opinion that the learned Revisional Court has committed no error. I do not find any merit in the writ petition. The writ petition stands dismissed. Praful/- (Rakesh Kumar, J)