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2002 DIGILAW 925 (JHR)

Moti Chand Khanna v. State of Bihar

2002-08-27

M.Y.EQBAL

body2002
Judgment M. Y. Eqbal, J.-Heard the parties. 2. In this writ application, the petitioner has prayed for quashing the order dated 6.9.1994 passed by the Addl. Collector, Palamau and the order dated 19.6.95 passed by the Commissioner, Palamau, whereby the demand which was opened in the name of the petitioner in 1979 has been cancelled at the instance of the respondents. 3. The petitioner's case, inter alia, is that the proprietary interest to the extent of 5 annas and odd of village-Itehey, and 11 Pai and odd of village Amwa, P.S. Lesliganj, District-Palamau were auction sold in Execution of Certificate Case No. 118 of 193940 and the same was purchased by the Secretary, Co-Operative Bank, Daltonganj and a Sale Certificate dated 24.3.1942 was issued in favour of the said auction-purchaser. Subsequently the said auction purchaser, namely, Bank transferred and sold the said auction purchased properties in favour of the petitioner. The petitioner's further case is that other co-sharer-landlord of village ltahey, namely, Mosomat Deokuri Kuer along with her minor son Lilu Singh instituted partition Suit No. 7/95 claiming partition of the properties of village-ltahey. In the aforesaid partition suit the petitioner had no concern with the respondent's property but they were impleaded as proforma defendants. The said suit was decreed and final decree was passed in 1975. It is stated that Takhta No. 15 comprising of various plots of village Itahi was carved out and allotted to the petitioner, whereas Takhta No.2 was allotted to the respondent no. 4, namely, Jamir Mian. Thereafter pursuant to an order passed in Execution Case No. 4/ 75 by sub-ordinate judge, Palamu at Daltonganj the petitioner was delivered possession of the lands of Takhta No. 15 on 2.5.1976. The petitioner after coming in possession of the said land, filed an application before the Circle Officer, Lesliganj for separation of the demand in his favour, in accordance with the final decree, allotment and delivery of possession which was allowed vide Miscellaneous Case No. 20/76-77. The petitioner thereafter started paying rent to the State, of Bihar. 4. These facts which have been stated from paras 4 to 14 of the writ petition has not been specifically and categorically denied by the respondents. The petitioner thereafter started paying rent to the State, of Bihar. 4. These facts which have been stated from paras 4 to 14 of the writ petition has not been specifically and categorically denied by the respondents. It appears that after about 12 years the respondent filed an application before the Circle Officer for cancellation of the Zamabandi opened in the name of the petitioner, copy of the application has been annexed as Annexure7 to the writ petition. From perusal of the annexure-7 it appears that allegation was made that there was no basis for opening Zamabandi in the name of the petitioner in the year 1979. The relief sought for in the said application was that Zamabandi opened in the name of the petitioner be cancelled and justice be given to the tribals and the persons of minority community living in the said village. On the said application the Additional Collector made an inquiry and after hearing the parties allowed the said application and cancelled the demand running in the name of the petitioner mainly on the ground that a partition suit being partition suit no. 86/88 was pending before the sub-judge, Palamu. The Additional Collector on the aforesaid ground quashed the two orders passed in Miscellaneous Case Nos. 26/76-77 and 23/79-80. 5. Admittedly in partition suit no. 7/1955 a final decree was prepared and the land in question was allotted to the petitioner in the said partition suit and the present respondent nos. 4 to 6 or their purchaser in interest were defendants being defendant no. 9, defendant no. 20-0 and defendant no. 22-H. The said final decree was executed and delivery of possession of the land was effected in respect of the aforesaid land. On the basis of the aforesaid decree and order passed by the Civil Court, Zamabandi was opened in the name of the petitioner in 1979. In my opinion, therefore, the Additional Collector was not justified in cancelling the said Zamabandi after 12 years that too mainly on the ground of pendency of one partition suit filed at the instance of one Baren Pandey claiming his share. In my opinion, therefore, the Additional Collector was not justified in cancelling the said Zamabandi after 12 years that too mainly on the ground of pendency of one partition suit filed at the instance of one Baren Pandey claiming his share. Even assuming that Baren Pandey was a co-sharer and without impleading him in the partition suit a decree was passed, a partition decree may be set aside, modified or reviewed but so long as the final decree passed in the earlier partition suit stands, the Additional Collector could not have cancelled the opening of the Zamabandi ignoring the final decree followed by delivery of possession. Besides the above fact it is well-settled that a Zamabandi opened after holding inquiry and which continued to run for a petty long time, it should not be cancelled at the instance of interested person without obtaining a decree or order from Civil Court of competent jurisdiction. In the case of Dilip Kumar Mahto... Petitioner vs. State of Bihar & Ors. ... Respondents, 2001 (1) JLJR, Page-75 this question was considered by a Bench of this Court. It was held and observed : "It has not been disputed by the respondents that mutation was effected in favour of the petitioner in the year 1978 and for the last 20 years the petitioner's name was running in revenue record and he has been paying rent and taxes to the State of Bihar. In such circumstances, the revisional authority was not justified in passing impugned order for cancellation of Zamabandi running in the name of the petitioner. At best, Revisional authority could have asked the respondents to go to the Civil Court for adjudication of their title and possession. It is well settled that Zamabandi running in the name of particular person for several years cannot be cancelled at the instance of the claimant in summary proceeding. The proper course for the claimant is to move to civil court of competent jurisdiction for proper relief. In this connection reliance may be placed of two Division Bench Judgments in the case of "Harihar Singh vs. Addl. Collector (1978 BBCJ-323) and in the case "Jamal uddin Ahmad vs. S.D.O., Khagaria & Ors. (1979 BBCJ 605)." 6. The proper course for the claimant is to move to civil court of competent jurisdiction for proper relief. In this connection reliance may be placed of two Division Bench Judgments in the case of "Harihar Singh vs. Addl. Collector (1978 BBCJ-323) and in the case "Jamal uddin Ahmad vs. S.D.O., Khagaria & Ors. (1979 BBCJ 605)." 6. Besides above it appears that although an appeal was preferred by the petitioner before the Commissioner but he has dismissed the said appeal by passing a cryptic order without taking into consideration the facts of the case and the relevant law on the subject. 7. For the aforesaid reason, this writ application is allowed and the impugned orders passed by the Additional Collector is set aside. However, it is made clear that the opening of Jamabandi in the name of the petitioner in the year 1979 shall be subject to the result of the Partition Suit no. 86/88 which is said to be pending in the court of Sub-ordinate Judge, Palamu.