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1993 DIGILAW 252 (PAT)

Shiv Nandan Prasad v. State of Bihar

1993-06-23

A.N.CHATURVEDI, S.B.SINHA

body1993
JUDGMENT : B. Sinha, J. - This application is directed against an order dated 17.6.1992 passed by the Additional Member, Board of 'Revenue as contained in Annexure-14, order dated 13.5.1992 passed by the Commissioner Gaya as contained in Annexure 11 to the writ application and the order dated 8.9.1991 passed by the Collector Gaya as contained in Annexure-6 thereto whereby and whereunder the petitioner's application under Section 45B of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the said Act) was rejected. 2. Three plots being plot No. 849, 850 and 852 appertaining to Khata No. 175 are the properties claimed by the petitioners. Khata No. 175 which consisted of 32 plots were recorded in the name of Kewal Mahto and others who are the ancestors of the petitioners. The said aforementioned Kewal Mahto and others were holders of Khewat Nos. 2 and 3. The proprietor of the village was Mahanth of Bodh Gaya. The cadestral survey settlement records of right had finally been published in the year 1907. However in the revisional survey settlement records of right 29 plots were recorded in the name of the petitioners but the aforementioned three plots were recorded in the name of the Mahanth Bodh Gaya. 3. The petitioners filed an application under Section 103A of the Bihar Tenancy Act for correction of the records of right and in the said proceeding the President of the Trust Committee which is now empowered to look after the properties of Bodh Gaya Math accepted the fact that the lands had all along been in possession of the petitioners. 4. By an order dated 6.4.1976, as contained in Annexure-3 to the writ application, the aforementioned objection of the petitioners was allowed. 5. It has further been contended that in the Consolidation proceedings the names of the petitioners had been published under Sections 9, 9(a) and 10 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act and the chak allotted to them had also been confirmed in terms of Section 13 (3) of the Consolidation Act on 31.3.1986; in relation whereto a final Khatian as contained in Annexure-4 to the writ application had been prepared and distributed. 6. It has also been submitted that the petitioners had all along been paying canal rent. 7. 6. It has also been submitted that the petitioners had all along been paying canal rent. 7. However in the land ceiling proceedings initiated against the Mahanth of Bodh Gaya the lands in. question were declared as surplus land of the land holder. 7A. The petitioners moved this court in its. writ jurisdiction being CWJC No. 3664 of 1987 and by an order dated 18.8.1987 this court directed the petitioners to file an application under Section 45B of the Act before the Collector of the District and pursuant to the said decision an application was filed which has been dismissed by the impugned order dated 8.9.1991 as contained in Annexure-6 to the writ application. 8. The petitioners filed a revision application before the Member Board of Revenue but by an order dated 13.2.1992 the petitioners were directed to prefer an appeal. Thereafter the petitioners preferred an appeal before the Commissioner alongwith an application under Sections 14 and 5 of the Limitation Act and by an order dated 6.5.1992/13.5.1992 the said appeal was dismissed at the stage of admission on the ground of limitation alone. 9. Thereafter the petitioners filed a writ application again in this court being CWJC No. 4485 and by an order dated 26.5.1992 the said application was permitted to be withdrawn and with an observation that the petitioners should file a revision application before the Member Board of Revenue. Thereafter a revision application was filed, which has been dismissed by the impugned order dated 17.6.1992 as contained in Annexure-14 to the writ application. 10. Mr. S. K. Mazumdar, the learned counsel appearing on behalf of the petitioners has raised a number of contentions in support of this application. The learned counsel submitted that the ceiling authorities are bound by the orders passed under the Bihar Tenancy Act as also under the Consolidation Act. 11. The learned counsel submitted that a final purcha has already been prepared under the Consolidation Act which is binding on the State of Bihar and in any event the Ceiling authorities had no jurisdiction to pass any order contrary to and inconsistent therewith. 12. The learned counsel further submitted that the order passed by the Member Board of Revenue holding that no revision was maintainable is not correct in law being contrary to the decision of this court in Jogeshwar Devi and ors. 12. The learned counsel further submitted that the order passed by the Member Board of Revenue holding that no revision was maintainable is not correct in law being contrary to the decision of this court in Jogeshwar Devi and ors. vs. Ashok Kumar Chachra reported in 1993 (1) Bihar Law Judgments page 31: 1992 (1) PLJR 114 . 13. Mr. Hemendra Prasad Singh, the learned Standing Counsel appearing on behalf of the State, on the other hand, submitted that entry in the cadestral survey settlement record of rights cannot be held to be conclusive, as the entry in the records of right is not a document of title. The learned counsel in support of this contention relied upon a decision of this court in 1966 BLJR page 66. 14. It was further submitted that it was obligatory on the part of the petitioners to prove their title by tiling the original deed of settlement inasmuch as Register was in the name of Mahanth and the petitioners could not. produce any document to prove their existing title as on 9.9.1970. 15. The learned counsel in this connection pointed out that all the documents upon which the petitioners placed reliance are after 9.9.1970. 16. It is not a case where the petitioner has come with a story of a settlement from Mahanth of Bodh Gaya immediately prior to vesting of his estate in the State of Bihar or after 22.10.1959. 17. It has not been denied that the names of the predecessors in interest of the petitioners stood recorded in the cadestral survey record of rights. It had also not been disputed that in the revisional survey settlement record of rights also, 29 out of 32 plots of Khata No. 175 were recorded in the name of the petitioners. However only three plots of lands were recorded in the name of Mahanth of Bodh Gaya. In this situation, the petitioners were entitled to file an application under Section 103A of the Bihar Tenancy Act and the said entry having been corrected by competent authorities under the Act, a presumption of correct ness of the said entry in terms of subsection 3 of Section 103B of the said Act has to be raised. 18. The Collector under the said Act, therefore, could not have rejected the contention of the petitioners on mere surmises and conjectures, 19. Further Mr. 18. The Collector under the said Act, therefore, could not have rejected the contention of the petitioners on mere surmises and conjectures, 19. Further Mr. Hemendra Prasad Singh could not state before this court as to whether after vesting of his estate in the State of Bihar, 'any return was filed in respect of the lands in question by the ex-proprietor or as to whether any rent fixation proceeding was initiated as against him in terms of Section 6 of the Bihar Land Reforms Act. 20. It is true that an entry made in the record of rights is not a document of title. But once a person in found to be in possession for a long time, his title thereupon has to be pressumed unless it is shown by cogent evidence that in fact he did not have any title or he has ceased to be the owner of the lands in question. 21. A person in possession is presumed to be the owner of the land in terms of Section 110 of the Indian Evidence Act. 22. Further in this case according to the petitioner even a certificate of transfer had been issued in terms of Section 15 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. In terms of Section 16 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act the Khatian prepared carries a statutory mandate that the same shall be deemed to be the record of rights of the chak in question. Once a chak has been prepared and confirmed under Section 13, the title in relation thereto would be deemed to have vested in him and for that purpose, even an instrument of transfer is not required to be executed, as would be evident from Sections 6 and 21 of the Consolidation Act. 23. For the reasons aforementioned, it cannot be said that only because an admission was made before the Assistant Settlement Officer on behalf of the Trust that the properties in question are in possession of the petitioners, the concerned respondent could not have jumped to the conclusion that no sanctity could be attached to the said order. 24. For the reasons aforementioned, the impugned orders cannot be sustained. 25. 24. For the reasons aforementioned, the impugned orders cannot be sustained. 25. This application is therefore, allowed the impugned orders as contained in Annexures 6, 11 and 14 are quashed and the matter is remanded to the Collector of the District for a fresh decision in accordance with law. 20. Before the Collector of the District, it would be open to the parties to lead their respective evidences. 27. The Collector may also issue notices to the purcha-holders if purchas have been distributed in respect of the lands in question. The petitioner may produce a copy of the order within three weeks from the date of the receipt of a copy of this' order. 28. This application is allowed with the aforementioned observations and directions, but without any order as to costs.