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2001 DIGILAW 204 (PAT)

Uma Devi Sinha v. State Of Bihar

2001-03-05

R.N.PRASAD

body2001
Judgment 1. The writ petition has been filed for quashing the notice dated 27.8.1996, Annexure-8, issued by respondent no.3, the order dated 31.8.1996 passed by respondent no.3 in Land Encroachment Case No. 07/96-97 directing to remove the encroachment, Annexure-9, and also order dated 23.8.1999 passed by respondent no.2 in Land Encroachment Appeal No. 73/96-97, Annexure-10. 2. The land in dispute is Revisional survey plot no. 198, khata no. 173, area 18 decimals situated at village Tahwal- nagar, P. S. Shahkund, district Bhagalpur. The aforesaid disputed land was carved out from Cadestrai survey plot no. 55, khata no. 69, area 81 decimals. The said land was recorded in the Cadestrai survey as gairmajarua malik land. The ex- landlord of the land in dispute was Kumar Kalanand Singh of Banaili estate. The cadestrai survey plot no.55 along with other land area 2 bigha 6 katha 18 dhoor was settled in the name of Thakur Prasad Sinha by the ex-landlord of Banaili estate. Ex-landlord granted receipt in the name of Thakur Prasad Sinha evidencing settlement in his favour. The landlord sumbitted return with respect to cadestrai survey plot no. 55 in the name of Thakur Prasad Sinha at the time of vesting of zamindari, Annexure-2. After vesting of zamindari, jamabandi was created in the name of Thakur Prasad Sinha, the settlee. He also paid rent under receipt to the Government. The portion of cadestrai survey plot no. 55 was acquired by the State Government for the purpose of construction of P. W.D. Dak-Bunglow and compensation was paid to Thankur Prasad Sinha the setilee. After death of Thakur Prasad Sinha, his heirs sold 30 decimals of land to Shailendra Kumar Sinha, the husband of the petitioner by registered sale-deed dated 23.1.1961, Annexure-3, and put the purchaser in possession. The name of husband of the petitioner was mutated vide order in Mutation case no. 49/69-70 and a separate jamabandi was created in his name. He paid rent under receipt to the Government. 3. The revisional survey was started and it was completed in 1976. During Revisional survey the land in question was recorded as Anabad Bihar Sarkar and name of husband of the petitioner was recorded as an illegal possession since 1961, Annexure-4. The husband of the petitioner, thereafter, filed a suit bearing case no. 1039/76 under section 106 of the Bihar Tenancy Act before the Asst. During Revisional survey the land in question was recorded as Anabad Bihar Sarkar and name of husband of the petitioner was recorded as an illegal possession since 1961, Annexure-4. The husband of the petitioner, thereafter, filed a suit bearing case no. 1039/76 under section 106 of the Bihar Tenancy Act before the Asst. Settlement Officer, Bhagalpur for declaration of his right and title over the suit land. The Asst. Settlement Officer decreed the suit vide judgment and decree dated 31.7.1980/8.8.1980 holding that the petitioner is in lawful possession of the suit iand. It has wrongly been recorded in the name of defendant-State of Bihar and directed to rectify the record in the name of plaintiff as he has perfect valid right, title interest and possession over the suit land, Annexures-5 & 5/A. 4. A land ceiling proceeding bearing no. 1104/1976 was initiated in the name of Ram Charitra Mandal, the father of husband of the petitioner, in which disputed land was included and final publication under section 11(1) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, hereinafter to be referred as the Act, was published in the district gazette dated 16th October, 1990 in which land in question was included as land of the petitioner, Annexure-7. 5. The respondent no. 3 initiated a iand encroachment case no. 07/96-97 against the husband of the petitioner and issued notice directing to remove the encroachment from the land in question failing which action under section 188 of the Indian Penal Code would be taken, Annexure-8. The son of the petitioner appeared and filed show-cause stating that Shailendra Kumar Sinha died and as such the proceeding against dead person is bad in law. In the show-cause question of maintainability of the proceeding was also raised claiming valid right and title over the suit land. The legal heir of Shailendra Kumar Sinha was not substituted and respondent no.3 without giving any opportunity to the petitioner or to her son to lead evidence in support of their case passed final order on 31.8.1999, Annexure-9, holding that the petitioner has encroached upon the land in question. The petitioner along with heirs of late Shailendra Kumar Sinha preferred Encroachment Appeal bearing no. 73/96-97 before the Collector, respondent no. 2, but appeal was dismissed vide order dated 23.8.1997, Annexure-10. The petitioner along with heirs of late Shailendra Kumar Sinha preferred Encroachment Appeal bearing no. 73/96-97 before the Collector, respondent no. 2, but appeal was dismissed vide order dated 23.8.1997, Annexure-10. The petitioner thus has challenged the orders, Annexures-9 & 10 and the notice, Annexure-8, in this writ petition. 6. A counter-affidavit has been filed on behalf of respondent nos. 2 & 3 stating therein that claim of the petitioner that her husbands name was mutated is not correct. On perusal of extract of Register 27 it appears that initially name of Thakur Prasad Sinha was recorded which was subsequently removed. However, authenticity of the document contained in An- nexure-2 ex-landlord is under sealed cover of the Collector. The claim of the petitioner that rent receipts were issued after purchase by the husband of the petitioner and they were filed before the Settlement Officer is not correct. There was no occasion to issue rent receipt. The suit under section 106 of the Bihar Tenancy Act, Annexures-5 & 5/A, was decided ex parte. However, it has been admitted that no appeal was filed against the said judgment and decree. 7. From the material on record and submission made by learned counsel for the parties this much is obvious that the land in question i.e. Revisional survey plot no. 198 area 18 decimals was carved out from Cadestral survey plot no. 55, area 81 decimals. Cadestral survey plot no. 55 along with other land area 2 bigha 6 katha 8 dhoor was settled by the exlandlord of Banaili estate in the name of Thakur Prasad Sinha much before vesting of the estate. Return was also submitted in the name of Thakur Prasad Sinha evidencing the settlement. Portion of cadestral survey plot no. 55 was acquired by the State Government for construction of P.W.O, Dak-bunglow and compensation was paid to Thakur Prasad Sinha. The husband of the petitioner purchased the disputed land from the heirs of Thakur Prasad Sinha after his death vide registered sale-deed dated 23.1.1961 and since then he was coming in possession. After purchase mutation was made and separate jamabandi was created in his name. The rent was paid under receipt to the Government. The husband of the petitioner purchased the disputed land from the heirs of Thakur Prasad Sinha after his death vide registered sale-deed dated 23.1.1961 and since then he was coming in possession. After purchase mutation was made and separate jamabandi was created in his name. The rent was paid under receipt to the Government. During revisional survey land in question was recorded in the name of State Government and as such husband of the petitioner filed a suit under section 106 of Bihar Tenancy Act which was decreed in his favour and it was held that the plaintiff was in lawful possession over the suit land. The land in question was illegally recorded in the name of defendant State of Bihar. The entry is fit to be rectified and recorded in the name of plaintiff as he has perfect and valid right, title, interest and possession over the suit land vide judgment and decree, Annexures-5 & 5/A. The said judgment and decree passed under section 106 of Bihar Tenancy Act was not challenged by anybody and as such it has become final. The land ceiling proceeding bearing no. 1104/76 was also initiated in the name of Ram Charitra Mandal, the father of the husband of the petitioner, in which final publication under section 11(1) of the Act was published in the district gazette in which the land in question was included as land of Ram Charitra Mandal, father of husband of the petitioner. 8. Therefore, it is evident from the facts stated above that serious question of title is involved in this case. The question of title was also raised before respondent no.3 but ignoring the aforesaid aspect of the matter he rejected the claim of the petitioner and held that petitioner had encroached upon the land in dispute. Appeal against the said order was also dismissed without considering the fact that the question of title was involved in the case and such question cannot be resolved in summary proceeding under the Land Encroachment Act. It is well established rule of law that where question of title is involved summary proceeding under the Land Encroachment Act is not maintainable. In the case of Government of Andhra Pradesh V/s. Thummafa Krishna Rao & anr. It is well established rule of law that where question of title is involved summary proceeding under the Land Encroachment Act is not maintainable. In the case of Government of Andhra Pradesh V/s. Thummafa Krishna Rao & anr. A.I.R. 1982 S.C. 1081 the Apex Court has held that "where question of title is involved the proceeding under the Land Encroachment Act is not the remedy rather remedy is to get the right declared by the competent Civil Court and until right is declared the person in occupation cannot be evicted by summary proceeding under the Land Encroachment Act." The decision referred above is fully applicable in the facts and circumstances of the instant case. 9. Thus on consideration, as discussed above, it is held that in the instant case serious question of title is involved which cannot be decided in a summary proceeding under the Land Encroachment Act. Admittedly the petitioner is in possession of the land and as such she cannot be evicted by summary proceeding unless the right and title is declared by the competent civil court in favour of the respondent-State of Bihar. Accordingly the writ petition is allowed. The notice, Annexure8 and the orders, Annexures-9 & 10 are hereby set aside but without cost.