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2005 DIGILAW 70 (PAT)

Bharat Baitha v. State Of Bihar

2005-01-24

MRIDULA MISHRA

body2005
Judgment 1. Heard learned counsel for the petitioner and the counsel appearing for respondent no. 5 2. The land in dispute relates to revisional Plot No. 206 area 18 decimals and Revisional Survey Plot no. 201 Area 4 decimals situated at village Rajkhand P.S. Goroul District Vaishali. The case of the petitioner is that he is maternal great grand son of one Munar Baitha son of Bhaju Baitha. Bhaju Baitha has one daughter Etwaria and one son Monar Baitha. Monar Baitha died issueless leaving behind his only sister Etwaria. Petitioner is the maternal grand son of Monar. Monar Baitha was alive at the time of revisional survey operation which took place in the year 1970 and his name was entered in the revisional survey khatian as a tenant. After his death petitioner came in possession of the land. During consolidation proceeding he filed a petition under Section 12 of the Bihar Consolidation of Holdings and Fragmentation Act, 1956 (hereinafter referred to as the Act) in respect of his right, title and interest over the land which was decided in his favour on 26.3.1986 and his name was recorded in the register of the land as well as in chak register. He remained in peaceful cultivating possession of the land. Subsequently the respondent no. 5 filed an appeal before the Deputy Director of Consolidation being case no. 214 of 1988 which was dismissed by a speaking order dated 21.12.1989 affirming the order of the Consolidation Officer as the respondent no. 5 failed to make out a case for recording his name either during revisional survey operation or during consolidation proceeding. Against the order passed by the appellate authority the respondent no. 5 filed revision before the Director which was numbered as Revision Case No. 126 of 1990 which was allowed by order dated 3.10.1994 by Principal Consolidation Training Institute, Patna. The petitioner is aggrieved by this order and has challenged this order in the writ application. 3. The case of the respondent no. 5 is that the land which is underdispute belonged to one Monar Baitha who had executed a registered mortgage deed on 29.7.1931 in favour of one Mohi Gir. Monar Baitha had authorised the mortgagee Mohi Gir to pay the rent which was actually paid by the mortgagee. 3. The case of the respondent no. 5 is that the land which is underdispute belonged to one Monar Baitha who had executed a registered mortgage deed on 29.7.1931 in favour of one Mohi Gir. Monar Baitha had authorised the mortgagee Mohi Gir to pay the rent which was actually paid by the mortgagee. Subsequently on 29.6.1936 the mortgagee Mohi Gir assigned the said mortgage through a registered Bechinama in favour of Damodar Prasad, the late father of respondent no. 5. Monir Baitha died issueless in the year 1940. The father of respondent no. 5 remained in possession of the land by virtue of the said registered Bechinama and upon death of mortgagee Monar Baitha his possession and of title became absolute. In the year 1960-61 the revisional survey started in the area at that time the father of respondent no. 5 died and the respondent no. 5 was minor at that time. In this circumstance no objection could be filed and the name of Monar Baitha was entered in the revisional survey khatian. At the time of revisional survey the petitioner who claims himself to be heir of Monar Baitha he did not take any step to get his name substituted in place of Monar Baitha. The fact is that he is not the legal heir of Monar Baitha who died issueless without leaving any surviving legal heirs. The claim of the petitioner Bharat Baitha that he is the grand son of the sister of Monar Baitha is false. 4. The respondent no. 5 filed an application for mutation of his name on the basis of registered bechinama and the mortgage deeds. The case was registered as Mutation Case No. 1269 of 1981, At that very time the petitioner Bharath Baitha also filed a petition claiming himself to be the heir of Late Monar Baitha. He filed an application under section 12 of the Money Lenders Act, 1974 for redemption the mortgaged land. This application was numbered as Mortgage case no. 3/91. Both the cases were decided by the Circle Officer by a common order dated 15.4.1981. He dismissed the claim of the petitioner under section 12 of the Money Lenders Act, 1974 on the ground that the case was barred by limitation. Redemption of mortgage could be done only up to 30 years under the new Limitation Act. 3/91. Both the cases were decided by the Circle Officer by a common order dated 15.4.1981. He dismissed the claim of the petitioner under section 12 of the Money Lenders Act, 1974 on the ground that the case was barred by limitation. Redemption of mortgage could be done only up to 30 years under the new Limitation Act. The Bihar Money Lenders Act, 1974 was published in Bihar Gazette on 25.7.1993 on which date the Money Lenders Act, 1974 came into operation but on that date the mortgage was not subsisting under the new Limitation Act. The redemption could have been done only up to the year 1970. The Anchal Adhikari held that as the Money Lenders Act came into force when the mortgage was not subsisting, therefore, Money Lenders Act, 1974 is not applicable in the present case. Against the dismissal of the mortgage case no. 3 of 1981 the petitioner filed an appeal bearing Mortgage Appeal No. 32 of 1989 before the D.C.L.R. Hajipur which was dismissed by order dated 26.3.1990 on the ground that the period of redemption had expired. 5. The petitioner had filed his application both before the Anchal Adhikari as well as before the appellate authority for being put in possession of the land in dispute which indicated his admission of the fact that he was not in possession and it was the mortgagee who was in possession of the land. Since the petitioner did not file any appeal, revision or writ as such it become final and binding on him. 6. The petitioner has also filed an appeal against the order of mutation passed in favour of respondent no. 5 which was numbered as Mutation Appeal No. 31 of 1989 which was also dismissed by the D.C.L.R. Hajipur by order dated 29.3.1990. The petitioner did not file any revision or writ against these orders as such it has also become final and binding against him. In spite of this legal position with regard to the disputed land, the petitioner Bharat Baitha adopted several methods in interfering with the peaceful possession of respondent no. 5 as such he filed Title Suit No. 37 of 1989 for permanent injunction restraining the defendant (petitioner) from interfering with the possession of the plaintiff (respondent no. 5). In this suit ad-interim injunction was granted by an order dated 3.5.1991 by the Munsif, 2nd Hajipur. 5 as such he filed Title Suit No. 37 of 1989 for permanent injunction restraining the defendant (petitioner) from interfering with the possession of the plaintiff (respondent no. 5). In this suit ad-interim injunction was granted by an order dated 3.5.1991 by the Munsif, 2nd Hajipur. Pleader Commissioner had also been appointed in this case who reported that the plaintiff (respondent no. 5) wasin possession of the land. Against the interim order the defendant (petitioner) filed an appeal bearing Misc. Appeal No. 12 of 1991 which was also dismissed by order dated 18.6.1992 passed by the Additional District Judge, V, Hajipur. 7. When the matter was decided by all courts in favour of respondent no. 5 the petitioner surreptiously filed a objection under section 12 of the Bihar Consolidation Act, 1956 in respect of his right, title and interest over the land in dispute. He deliberately did not implead the respondent no. 5 as a party though he was necessary party. This objection case was numbered as Case no. 61 of 1986 and by an ex~parte order dated 26.3.1986 it was decided in favour of the petitioner. This order was obtained by suppressing the material facts and without impleading the respondent no. 5 as party. Thus this order was obtained by playing fraud upon the court. The other illegality in the order was that the objection in respect of right, title and interest over any land is not maintainable at the stage of section 12 of the Consolidation Act, if not filed at the stage of section 10(2) of the Act. It becomes barred under section 10(A) of the Act. Section 12 of the Act is the stage at which the objection in respect of the allotment of draft chak is required to be filed. In this view of the matter also the order passed in favour of the petitioner under section 12 of the Act was illegal. The respondent no. 5 when came to know about the ex-pate order he filed an appeal bearing Appeal No. 214 of 1988 before the Deputy Director of Consolidation, Hajipur, which was dismissed on 12.12.1987 on the non-existing ground that the appeal under the Money Lenders Act and Mutation appeal filed by the petitioner were pending. Against this order the respondent no. 5 preferred revision under section 35 of the Consolidation Act bearing Rev. Against this order the respondent no. 5 preferred revision under section 35 of the Consolidation Act bearing Rev. Case No. 126 of 1990 which has been decided in his favour of consideration of the materials and the documents by the Principal Consolidation Training Institute, Patna. 8. The petitioner has challenged the impugned order on the ground that the Principal Training Institute, Patna is not vested with the power under section 35 of the Act as such the order impugned is without jurisdiction. However by filing a supplementary affidavit the petitioner has withdrawn this ground stating that under section 34 of the Act the power to exercise jurisdiction under section 35 has been delegated to the Principal Training Institute, Patna and the impugned order cannot be challenged on this ground. Another ground on which this impugned order has been challenged is that the revisional court totally over looked that the deed of mortgage dated 29.7.1931 executed in favour of Mohi Gir conveyed only a limited right to mortgagee and on the basis of the mortgage deeds no title has been conveyed to the mortgagee. In this regard I have to say even this ground is not available to the petitioner. Admittedly mortgage deed was executed by Monar Baitha on 29.7.1931 wherein as per the terms of the agreement Monar Baitha had authorised the mortgagee Mohi Gir to pay the rent which was being paid by him. Subsequently on 23.3.1936 Mohi Gir assigned the said mortgage through a registered Bechinama in favour of Damodar Prasad. Monar Baitha did not redeem the mortgage. The redemption of mortgage could have been done only up to 30 years i.e. till 1970 under the new limitation Act. Since it was not done till 1970 it become time barred after enactment of Money Lenders Act, 1974 which was published in Bihar Gazette on 29.7.1993. The mortgage was not subsisting as such under section 12 of the Money Lenders Act also no relief was available to the petitioner who claimed to be the legal heir of Monar Baitha, the mortgagor. The petitioners mortgage case no; 3 of 1981 was also dismissed by order dated 15.4.1981 and appeal against this order bearing no. 32MA/89 before D.C.L.R. Hajipur was also dismissed by order dated 26,3.1990. Petitioner did not prefer any revision or writ against this order as such it become final and binding upon the petitioner. The petitioners mortgage case no; 3 of 1981 was also dismissed by order dated 15.4.1981 and appeal against this order bearing no. 32MA/89 before D.C.L.R. Hajipur was also dismissed by order dated 26,3.1990. Petitioner did not prefer any revision or writ against this order as such it become final and binding upon the petitioner. In this view of the matter the revisional court has rightly decided the question of title in favour of respondent no. 5. The order passed by the Consolidation Officer in favour of the petitioner under section 12 of the Consolidation Act was also not proper and legal because the necessary party was not impleaded, the relevant material facts were suppressed by the petitioner. He did not disclose before the Consolidation Officer that he has lost both mutation case as well as the mortgage case and he was not found to be in possession in both cases when the enquiry was conducted. 9. In that view of the matter the reliance placed by the petitioner on the order passed by the Consolidation Officer as well as the order passed by the appellate authority has no force. On consideration of the entire materials on record and the submission enhanced by the counsel for the parties I come to the conclusion that there is no illegality in the order passed by the revisional authority. The revisional authority has considered the entire materials and he has not either acceded his jurisdiction or has passed the order in illegal exercise of the jurisdiction vested in him under section 35 of the Consolidation Act. The petitioner or the respondent whoever feels necessity may file suit for declaration of their title before the civil court. So far the impugned order is concerned, it does not require any interference. Accordingly this application is dismissed.