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2006 DIGILAW 1273 (PAT)

Deo Sundari Devi v. Ramanuj Singh

2006-12-19

BARIN GHOSH, MADHAVENDRA SARAN

body2006
Judgment 1. This appeal has been preferred against the judgment and order dated 6.2.1995 passed by a learned Single Judge of this Court in CWJC No. 1737 of 1994 whereby and whereunder the order dated 12.3.1991/16.3.1991 passed by Consolidation Officer, Majorganj in Objection Case No. 769/1989, the order dated 28.12.92 passed by the Dy. Director, Consolidation, Sitamarhi in Consolidation Appeal No. 169/ 1991 and the order dated 11.11.93/18.11.93 passed by the Joint Director. Consolidation, Muzaffarpur in Revision No. 56/93 (annexures-9, 10 & 12 respectively in CWJC No. 1737/94) have been quashed and the case has been remanded back to the Consolidation Officer, Majorganj, Sitamarhi for a fresh decision. 2. It is admitted case of the parties that the deceased Gopal Singh had three sons names, Indrajeet Singh, Brijmohan Singh and Sukhdayal Singh. The present three appellants, who were respondents 5. 6 and 7 in the writ application, represent the branch of late Jeetu Singh who was son of Brijmohan Singh. The present respondents no. 1 to 10 who were petitioners in the Writ Application are the descendants of Indrajit Singh. The disputes relates to land of RS Khata nos. 471 and 160 situates within the Mauza, Ratanpur, Thana no. 27, Anchal & PS Majorganj district Sitamarhi. 3. The case of the present respondents no. 1 to 10 is that their ancestors purchased the land of Khata no. 471 by different sale deeds on different dates as well as in an auction sale vide annexures 1 to 1 (i) series of the writ application from the separate income and therefore, these properties acquired by them are their self acquired "properties. After acquisition of land in question the names of ancestors of the respondents no. 1 to 10 were mutated in the Sarista of ex-landlord and after vesting of jamindari the outgoing landlord had submitted return to the State of Bihar with respect to the land in question and on that basis register-ll was prepared and thereafter the State of Bihar as landlord started to grant rent receipts to them. This piece of evidence, therefore, shows that there was separation between respondents 1 to 10 and the present three appellants. Further, case is that the ancestors of respondents no. 1 to 10 late Uchit Singh had purchased the land of Khata no. 471 mentioning 12 bighas, 2 kathas and 11 dhurs in execution suits nos. This piece of evidence, therefore, shows that there was separation between respondents 1 to 10 and the present three appellants. Further, case is that the ancestors of respondents no. 1 to 10 late Uchit Singh had purchased the land of Khata no. 471 mentioning 12 bighas, 2 kathas and 11 dhurs in execution suits nos. 1205/ 1938, 1299/1938, 1203/1938 and 1204/1938 and on the basis of the said decree delivery of possession was done and the name of late Uchit Singh was mutated in the Sarista of ex-landlord in 1351 Fasali and since then the ancestor of the respondents and after him respondents 1 to 10 are coming in peaceful possession of the same. It is further said that late Jeetu Singh alongwith his wife Deo Sundari Devi and two sons, Ram Sanjivan Singh and Ram Vinay Singh had partitioned their joint property by registered deed of partition no. 4310 dated 29.09.70 and this deed of partition does not include the land of Khata no. 471 in question. It is said that over the land of RS Khata no. 160 there are houses of few muslim. 4. The stand of the present appellants is that land or Khata no. 471 is joint property and the same has not been partitioned in between the appellants and respondents no.1 to 10 and further their case that late Jeetu Singh, son of Brijmohan Singh was the adopted son of Sukhdayal Singh vide registered deed of adoption dated 23.5.1935 and, therefore, Jeetu Singh was entitled to get 2/3 share in the joint property of Khata No. 471 as the adoption was in Kritrima Form under Mithila School. According to respondents the revisionai khatiyan was finally published in the year 1966 and the name of respondents no.1 to 10 and their ancestors were shown as owners of the land. The appellants did not file any objection against the said final publication of RS Khatiyan. The records of rights prepared during Consolidation was published in between February, 1988 and March, 1988 but the appellants did not file any objection. In the year 1989 late Jeetu Singh filed an objection u/s 10(d) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (in short as Act) for correction in the record of rights on the ground that land in question is joint family property. In the year 1989 late Jeetu Singh filed an objection u/s 10(d) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (in short as Act) for correction in the record of rights on the ground that land in question is joint family property. The Consolidation Officer rejected the prayer holding that there had been partition between respondents 1 to 10 and the appellants. The appellants then filed appeal before Dy. Director Consolidation who allowed the prayer and set aside the order of Consolidation Officer. Thereafter, the present respondents no. 1 to 10 preferred revision before the Joint Director, Consolidation who also dismissed the revision holding that the parties are joint. 5. It has been argued on behalf of the appellants that the learned Single Judge while disposing of the writ application has relied upon two decision of this Court given in the case of Ram Singasan Patank versus K.P. Singh reported in AIR, 1989, Patna, page 39 and AIR, 1989, Patna page 66 (Rajbatti Vs. Joint Director, Consolidation) for the proposition that the Consolidation authorities are courts and they are bound by the strict rules of evidence. He submitted that the conclusion is based on a premise that the decision of the Consolidation authorities are binding on the parties and the Civil Courts are merely to pronounce judgments in accordance with the decision of the Consolidation authorities on the revival of the pending disputes before the civil courts. He argued that the view taken in above two decisions is wrong in view of full Bench decision of this Court given in the case of Kalika Kuer vs. State of Bihar (1990,(1) BLJR, 55 [:1989 PLJR 1203 FB] wherein it has been held "from various decisions as referred to herein before it is clear that the jurisdiction of Consolidation authorities are not unlimited and the Consolidation authorities are deemed courts of limited jurisdiction. Any decision of the Consolidation authorities except on question relating to the records of rights, correctness whereof can be questioned on the grounds Of wrong decisions by them on pure questions of title, shall neither be binding nor available as evidence of title in a court of law." He further argued that the full Bench has expressly held that the Ceiling Act does not require strict application of Evidence Act and so the Consolidation Authorities are also, therefore, not required to followstrict application of the Evidence Act. 6. In this connection, he further argued that a copy of registered deed of adoption dated 23.05.1935 was filed before the Consolidation Authorities and the same was accepted by the Dy. Director, Consolidation in appeal on the ground that the same was registered one. He argued that before the Consolidation Authorities it was never contended that deed of adoption was only a paper transaction and the same was never acted upon. He pointed out before the Consolidation authorities and it was only contended on behalf of the respondents 1 to 10 that deed of adoption was forged and fabricated document but no such evidence was produced in support of the same. Learned counsel sub-mitted before us that u/s 90 of the Evidence Act documents more than 30 years old proved themselves. The Dy. Director in appeal, therefore, rightly raised presumption in favour of the registered document. He also submitted that the Consolidation Authorities have no power to cancel the deed and, therefore, the same is binding on them so long it is not cancelled by a court having the power to cancel it. He also pointed out that in Kritrima Forma of adoption the son of two fathers, takes inheritance of his adopted father as well as his natural father. Learned counsel, thus, submitted that the writ court was not correct in remanding the matter for fresh decision by the Consolidation Authorities. 7. On the other hand learned Counsel for the respondents submitted that mere execution of a deed will not prove adoption unless it is shown tnat essential and requisite ceremony were also performed. He also submitted that reliance was placed on sada copy of registered deed of adoption which was not brought on record legally. He submitted that revisional and appellate court committed procedural infirmity in passing the impugned order. 8. He also submitted that reliance was placed on sada copy of registered deed of adoption which was not brought on record legally. He submitted that revisional and appellate court committed procedural infirmity in passing the impugned order. 8. There is nothing in the impugned order of the revisional or appellate court to show that any evidence was brought by the present respondents no. 1 to 10 to show that the registered deed of adoption was forged and fabricated document. Section 90 of the Evidence Act deals with admissibility of documents without proof in the usual manner. The presumption is permissive according to circumstances of the each case the Court may or may not raise it. It is the matter of judicial discretion where the court will make presumption or call upon the parties to offer other proof. The Dy. Director, Consolidation in appeal has applied his discretion of presumption in favour of the appellants. As rightly argued on behalf of the appellants so long the registered deed of adoption is not cancelled by a competent court the same is binding on them. 9. In the above facts and circumstances, this appeal is allowed and order dated 06.02.95 passed in CWJC no. 1737/ 94 is set aside and the order passed by Dy. Director, Consolidation in Consolidation Appeal No. 169/92 dated 28.12.92 and the order that 11.11.93/18.11.93 passed by the Joint Director, Consolidation, Muzaffarpur in Consolidation Revision No. 56/93 are restored.