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2001 DIGILAW 771 (JHR)

Surji Devi v. State Of Jharkhand

2001-11-26

SUDHANSU JYOTI MUKHOPADHAYA

body2001
ORDER The Court 1. The petitioners have challenged the order dated 5th May, 2001. passed by the Additional Collector. Deoghar. under Section 16 of the Bihar Tenants Holdings (Maintenance of Records) Act. 1973 for short Act, 1973 in R.M. Appeal No. 29 of 1998-99, whereby and whereunder, he affirmed the order dated 26th December, 1998, passed by the Land Reforms Deputy Collector, Madhupur (respondent No. 4) in Mutation Appeal No. 2 of 1998-99 and the order dated 29th June. 1998. passed by the Circle Officer. Madhupur (respondent No. 5) in Mutation Case No. 42 of 1998-99. According to the petitioners, respondents No. 6 and 7 illegally obtained the order dated 29th June. 1998 in Mutation Case No. 42 of 1998-99. as affirmed by the order dated 26th December, 1998 in Mutation Appeal No. 2 of 1998-99 and the order dated 5th May. 2001 in R.M. Appeal No. 29 of 1998-99. It is submitted that the Additional Collector not being the District Collector, has no jurisdiction to pass order under Section 16 of the Act, 1973 and thereby illegal. Reliance was placed by the learned counsel for the petitioners on Patna High Courts decision in the case of Most. Babuni Devi v. The State of Bihar and Ors., reported in 1997 (2) PLJR 404. In the said case, the Court taking into consideration the provisions of Sectionl6 and 2(c) of the Act, 1973, held that a revision against the order of Deputy Collector. Land Reforms, before the Additional Collector is not maintainable, the power of revision under Section 16 having been conferred on the Collector of the District, which does not include Additional or Deputy Collector. 2. According to the counsel for the respondents. Section 2(c) of the Act, 1973 defines Collector, which also includes Additional Collector. However, such submission can not be accepted as the power of revision has been vested with the District Collector under Section 16 of the Act and not to any other Collector as defined under Section 2(c) of the Act. 3. According to respondents No. 6 and 7. petitioners merely claim, 5 Kattha and 20 Dhurs of land in pursuance of a registered sale deed of 1987 out of the disputed 15 Bighas 14 kathas and 7 Dhurs of land of Mauza - Pathar Chapati. Thoka 220 and 98. The name of petitioner No. 1 is claimed to have been mutated on 5th December. petitioners merely claim, 5 Kattha and 20 Dhurs of land in pursuance of a registered sale deed of 1987 out of the disputed 15 Bighas 14 kathas and 7 Dhurs of land of Mauza - Pathar Chapati. Thoka 220 and 98. The name of petitioner No. 1 is claimed to have been mutated on 5th December. 1992 in pursuance of Mutation Case No. 80 of 1992-93 by the Circle Officer. Madhupur. It is alleged that the petitioners vendor had not purchased the land measuring 5 Kattha and 10 Dhurs and the petitioners have not tiled any document in support of such purchase. The case of respondents No. 6 and 7 is that the pre-decessor of respondents No. 6 and 7. namely. Nilmani Mitra. acquired Basuri Maurasi Mukarari Patta right in the year. 1891 from Ghatwal of Pathrol Tikait Ram Chandra Singh by virtue of registered deed No. 1486 of Mauza-Pathar Chapti. having an area of 40 Bighas and another 10 Bighas of land, situated in Mauxa- Barbad and came in possession of the same. The said Nilmani Mitra further acquired 51 Bighas of land in the year. 1894 by Mokarari Maurasi Patta by way of registered deed No. 35 of Mauza-Pathar Chapti from Ghatwal of Pathrol Tikait Ram Chandra Prasad Singh and came in possession. Thus. Nilmani Mitra acquired 91 Bighas of total land from Ghatwal of Mauza -Pathar Chapti. After the death of Nilmani Mitra there was a partition between his two sons namely. Amrit Lal Mitra and Surat Lal Mitra by way of partition in the year. 1895 in pursuance of which Amrit Lal Mitra got 25 Bighas of land from deed No. 1486 and 7 Bighas from deed No. 35 of mauza-Pathar Chapti and thereby, held 32 Bighas of land. The other brother Surat Lal Mitra in pursuance of the said partition got 15 Bighas of land from deed No. 1486 of Mauza Pathar Chapti. 10 Bighas of land from Mauza-Bar-bad and 44 Bighas of land from deed No. 35 of Mauza-Pathar Chapti and thereby came in possession of 59 Bighas of land in Mauza-Pathar Chapti. Subsequently. Sueat Lal Mitra acquired further 6 Bighas of land of Pathar Chapti Mauza by way of Patta. 4. One Sarat Chandra Mitra is the son of Sueat Lal Mitra. Said Sarat Chandra Mitra had three sons, namely. Dr. Subodh Chandra Mitra. Sushil Chandra Mitra and Sudhir Chandra Mitra. Dr. Subsequently. Sueat Lal Mitra acquired further 6 Bighas of land of Pathar Chapti Mauza by way of Patta. 4. One Sarat Chandra Mitra is the son of Sueat Lal Mitra. Said Sarat Chandra Mitra had three sons, namely. Dr. Subodh Chandra Mitra. Sushil Chandra Mitra and Sudhir Chandra Mitra. Dr. Subodh Chandra Mitra died issueless. leaving behind the widow Jamuna Rani Mitra whereas Sudhir Chandra Mitra died unmarried. The third brother Sushil Chandra Mitra had two sons, namely. Subir Chandra Mitra and Dr. Subrata Chandra Mitra who are respondents Nos. 6 and 7 in this case. 5. After death of Dr. Subodh Chandra Mitra the widow Jamuna Rani Mitra executed a Will in respect of her share in favour of respondents Nos. 6 and 7. for which probate was granted in their favour on 19th April. 1996 in Probate Case No. 108 of 1990 by the City Civil Court. Calcutta. 6. It is also claimed that at the time of vesting return was filed in the name of ancestor of respondents and 59 Bighas of land were correctly recorded in Thoka No. 220 and 6 Bighas in Thoka No. 98 of Mauza-Pathar Chapti, which was reflected in Register-II by the Circle Officer. 7. Further case of the respondents is that the original objector Shankar Prasad should have filed a revision under Section 16 of the Act, 1973 instead of filing appeal and the learned Additional Collector rightly passed the impugned order dated 5th May. 2001. 8. The question relating to right and title over the land in question can not be determined by this Court under Article 226 of the Constitution of India. The petitioners having not given the details relating to their right and claim over the land in question nor any document in this respect having been enclosed, even prima facie view can not be taken. 9. It is true that under Section 16 of the Act. 1973 the Additional Collector has no revisional power and thus, the impugned order dated 5th May, 2001 is illegal, being without jurisdiction, as per the decision in the case of Most Babuni Devi. (supra) but the question arises as to what relief can be given in favour of one or other party. 1973 the Additional Collector has no revisional power and thus, the impugned order dated 5th May, 2001 is illegal, being without jurisdiction, as per the decision in the case of Most Babuni Devi. (supra) but the question arises as to what relief can be given in favour of one or other party. As the tolal matter relates to mutation and thus for creation/cancellation of Jama-bandi the Court feels that no decision is required to DC given in the present case in favour of one or other party. 10. It is settled law that creation of Jamabandi/mutation does not create any right and title in favour of one or other nor cancellation of Jamabandi/mutation dors ex-tinguish right and title of the land holder. In this respect one may refer a decision of the Division Bench of Patna High Court in the case of Sita Ram Chaubey v. State of Bihar and Ors., reported in 1993 (2) PLJR 255. 11. The aggrieved person, if so chooses, may move before a competent court of law for declaration of right and title and possession/delivery of possession. For the purpose of right, title or delivery of possession, no person can derive any advantage in pursuance of one or other order, passed in Mutation Case till appropriate order is passed by any appropriate court of law/competent authority. 12. The writ petition stands disposed of with the aforesaid observations. 13. Writ petition stands disposed.