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2000 DIGILAW 1089 (PAT)

Md. Zikrul Islam v. State Of Bihar

2000-09-07

R.M.PRASAD

body2000
Judgment R.M.Prasad, J. 1. In this writ petition, the petitioner has assailed the validity of the appellate order dated 12.6.2000 (Annexure 6) passed by the District Magistrate, Samastipur (respondent No. 2) in Encroachment Case No. 304/98, whereby and where under the appeal preferred by him (petitioner) against the order dated 22.1.1998 passed by the Circle Officer, Pusa, District Samastipur (respondent No. 3) in Encroachment Case No. 1/96-97 has been dismissed. He has also assailed the validity of the said order dated 22.1.1998 (Annexure 4) of the Circle Officer wherein it has been held that the petitioner should remove his alleged encroachment over 29 decimals of land of C.S. Plot No. 2661. 2. According to the case of the petitioner, Plot No. 2661 corresponding to Plot No. 4591 having an area of 29 decimals was recorded in the cadastral survey khatian as Gair Majarua Aan Bakabje Malik. Five mango trees in possession of the Malik, namely, Babu Md. Salim alias Bhola Babu were also mentioned. The said land was settled by the Malik in favour of the petitioners uncle Kalo Sah sometime before the year 1938, which is evident from the decree of the Civil Court in Rent Suit No. 18 of 1938. Further case of the petitioner is that on the vesting of Zamindari, return was submitted in the name of the wife of the settle, i.e., aunt of the petitioner, who was issued rent receipts by the State Government. After the death of the original settle, his wife sold the said plot along with other lands to the petitioner through a registered sale-deed dated 6.9.1971. Subsequently, the name of the petitioner was mutated in respect of the said land. It is claimed that the petitioner and his predecessor-in-interest had been coming in peaceful possession over the plot in question for over 60 years and, further, that the survey and consolidation were also issued in favour of the petitioner. It is contended that the petitioner planted trees of different kinds over the said land and the nature of land has become raiyati and private. 3. In the year 1996-97, a land encroachment case was filed by the Circle Officer, Pusa (respondent No. 3) for the removal of the encroachment over the land in question and the same was registered as Encroachment Case No. 1/96-97. The petitioner submitted his show cause and also contested. 3. In the year 1996-97, a land encroachment case was filed by the Circle Officer, Pusa (respondent No. 3) for the removal of the encroachment over the land in question and the same was registered as Encroachment Case No. 1/96-97. The petitioner submitted his show cause and also contested. Respondent No. 3, vide order dated 1.1.1998/22.1.1998, has held that the petitioner had encroached upon 29 decimals of C.S. Plot No. 2661, from which he should remove his encroachment. A true copy of the said order has been annexed as Annexure 4. Thereafter, the petitioner filed an appeal which was dismissed on the ground of limitation. 4. Against the said order, the petitioner filed writ petition bearing CWJC No. 11419 of 1998 in this Court in which it was contended that the Anchal Adhikari had passed the order on 22.1.1998 but he had no information about the said order and that he came to know of it only on 24.3.1998. Accordingly, he filed the appeal, which was within time from the date of knowledge. This Court, without going into the merits of the contention, vide order dated 6.1.1999, contained in Annexure 5, quashed the order of the appellate authority dismissing the appeal being time-barred and remitted the matter back to him with a direction to hear the appeal on merit without being prejudiced by the order of this Court. Till the disposal of the appeal, status quo as of that date, was directed to be maintained. Thereafter it appears that the appellate authority heard the appeal afresh and disposed it of by the impugned order dated 12.6.2000, contained in Annexure 6. 5. It has been contended by the learned Counsel for the petitioner that the learned Collector appears to have misunderstood the case of the petitioner inasmuch as, according to him, how the vendor of the petitioner, described a his Mansi, has acquired right and title over the land in question. It is submitted that the Collector has committed serious error in not going into the question of settlement of the land in favour of the uncle by the ex-landlord in the year 1938, which was evidenced by the decree of Civil Court in Rent Suit No. 18 of 1938 wherein rent in respect of the land in question and other land was fixed. It was further submitted that in any case, in view of the fact that the ex-landlord submitted his return in respect of the land in question, in the name of the wife of the original notice Bibi Masudan at the time of vesting of Zamindari and furtherthat her name was mutated in the revenue records of the State of Bihar, there cannot be any iota of doubt that he had good title over the land in question. The State Government used to grant rent receipt to her and subsequently. When she sold the land in question by way of registered sale-deed dated 6.9.1971 in favour of the petitioner, the petitioner came in possession of the same and got his name mutated in respect of the said land and started getting rent receipts in his own name in respect of the land in question. According to him, grant of rent receipt in favour of the petitioner is sufficient to show that the land in question was admittedly a raiyati one and that such a long time has passed and Zamabandi was also running in favour of the petitioner, it was not proper for the respondents to get the matter adjudicated upon by way of summary procedure under the Bihar Public Land Encroachment Act. Learned Counsel submitted that in case of any doubt, the respondents ought to have filed a civil suit. 6. Learned Government Pleader No. IX appearing for the State has submitted that there is no infirmity in the impugned orders from which it appears that the petitioner completely failed to produce any evidence with respect to the alleged settlement of the land by the ex-landlord nor with respect to so-called title acquired by his Mansi about whom it is claimed that she sold it to the petitioner by a registered deed. The onus was upon the petitioner to prove that he had acquired any right, title and possession by virtue of which the removal of an encroachment over the land which was described as Gair Mazruam Gadha in cadastral survey khatian is not permissible so much so that he had not even brought any evidence before this Court in support of his said claim except photo copy of the rent receipt for the year 1996-97, contained in Annexure 1, which does not even mention about the plot in question and a photo copy of the Raiyati Khatian (Annexure 2), from which also it is not at all clear as to whether the land in question was recorded as raiyati land of the petitioner. From page 20A of Annexure 2, it is not clear as to what is the said document not it is clear that the land in question is recorded as raiyati land in favour of the petitioner. He has also brought Annexure 3 in support of his case which he claims to be the consolidation Purcha issued in his favour. According to the learned Government Pleader, it is difficult to rely upon the said document for the reason that it is dated 7.6.97, i.e., after the registration of encroachment case. Moreover, it is not clear from the pleading that even the documents were placed either before the respondent No. 3 or before the appellate authority (respondent No. 2). According to him, there cannot be any settlement of GairMazrua-am land. As such, according to the learned Government Pleader No. IX no case has been made out by the petitioner to interfere with the impugned orders. 7. A supplementary affidavit has been filed on behalf of the petitioner in which it is stated that the petitioner had filed relevant documents in support of his case before respondent No. 3 including rent receipt, revisional survey and consolidation panchas on 4.6.1997 itself, According to the petitioner, the said documents were produced before the appellate authority as would be evident from the memorandum of appeal and written notes of arguments. Photo Copies of the memorandum of appeal and written notes of arguments filed by the petitioner have been annexed as Annexures 7 and 8 respectively. 8. Photo Copies of the memorandum of appeal and written notes of arguments filed by the petitioner have been annexed as Annexures 7 and 8 respectively. 8. It is submitted by the learned Counsel for the petitioner that the learned Courts below has gravely erred in not appreciating the fact that the nature of the land in question was completely changed and it is now out an out a raiyati land over which title stands preferred by virtue of adverse possession. 9. This Court finds it difficult to accept the said submission of the learned Counsel for the petitioner. Bare perusal of the impugned order shows that the petitioner did not bring any evidence in support of his case to show about the alleged settlement by ex-Zamindar or on the question of adverse possession over the land in question. It appears that the petitioner also failed to bring on record any evidence to show as to how and from where his Mausi acquired title to transfer the land by so-called registered sale deed in favour of the petitioner. This Court finds substance in the submission of the learned Government Pleader that the evidences brought on record of this writ petition also byway of Annexures 1, 2 and 3 are not sufficient to prove either about the initial settlement of the land in question by the ex-Zamindar or that the title over the land in question was perfected by virtue of adverse possession. The petitioner has also failed to bring on record even of the writ case as to how and from where his Mausi acquired title over the land in question. In the absence of any evidence, this Court finds that the learned appellate authority has rightly relied upon the entry made in the cadastral survey khatian showing the nature of the land as Gairmazrua-am land. 10. Learned Counsel for the petitioner has placed reliance on a catena of decisions of this Court as well as of the apex Court in the case of Brij Bhukhan Kalwar V/s. State of Bihar -- , in the case of Smt. Husanbano V/s. State of Bihar 1959 BLJR 310, in the case of Md. Ahsan V/s. State of Bihar 1969 BUR 683 and in the case of Government of Andhra Pradesh V/s. T. Krishna Rao . 11. Ahsan V/s. State of Bihar 1969 BUR 683 and in the case of Government of Andhra Pradesh V/s. T. Krishna Rao . 11. This Court fails to appreciate as to how in the facts and circumstances aforementioned, any of the said decisions is of any help to the petitioner. In the case of Smt. Husanbano V/s. State of Bihar (supra), the facts and evidence were such that the Court came to the conclusion that the settlement relied upon by the settle is raiyati settlement and not a mere right for collecting Singhara, which would be in the nature of an encumbrance. With report to recording of the land as Gairmazrua-am in the record-of-rights, the Court held that even in the case of Gairmazrua-am land, the landlord has the right to deal with it is such manner as he chooses so long as he does not interfere with the customary rights of the villagers. The Court also considered the fact about the continuous possession of the land as a raiyati, paying rent to the landlord, from the year 1941 to the year 1956 and on consideration of the same held that the plaintiff has established that she has title of a raiyat over the disputed plot, subject, of course, to the customary rights of the villagers either to bathe in the water stored in the disputed plot or to any other right the public may have over the land. 12. In the case of Md. Ahsan V/s. State of Bihar (supra), no doubt the Division Bench of this Court has held that "it cannot be said that the landlord is absolutely debarred from making any settlement of gairmazrua-am land" and that "if a piece of gairmazrua-am land is settled with any person and he remains in possession over it for 12 years, he can acquire the rights of an occupancy raiyat, but the relief was granted only on the basis of pleading and the evidence. 13. The Supreme Court in the case of Government of Andhra Pradesh V/s. T. Krishna Rao (supra) was dealing with completely different questions. 13. The Supreme Court in the case of Government of Andhra Pradesh V/s. T. Krishna Rao (supra) was dealing with completely different questions. The Supreme Court while dealing with the power of the Government to evict a person in unauthorised occupation of Government land held that the summary procedure under the Bihar Public Land Encroachment Act cannot be resorted to where complicated questions of title arise for decision and that the duration of encroachment is not decisive in exercise of the power to evict summarily a person committing encroachment. 14. In the Special Bench decision of this Court in the case of Brij Bhukhan Kalwar V/s. State of Bihar (Annexure), it has been held that a person who has not acquired title to Gairmazrua-am land by being in adverse possession for a period of 12 years has no property right in such land. A trespasser on Gairmazrua-am land cannot complain that his right have been at all infringed and even the remedy of a suit is not open to him. Therefore, it has been held that he cannot invoke the extra ordinary jurisdiction of the High Court by asking for the writ of mandamus be it directed against individual or against the State. 15. Thus, this Court, in the facts and circumstances aforementioned, does not find any merit warranting interference with the impugned orders passed under the Bihar Public Land Encroachment Act and the writ petition is summarily dismissed.