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2006 DIGILAW 830 (PAT)

Laxmi Narain Sahi And Anothei v. State Of Bihar

2006-09-12

AJAY KUMAR TRIPATHI, BARIN GHOSH, TRIPATHI

body2006
Judgment BARIN GHOSH, AJAY KUMAR and TRIPATHI JJ. 1. Four brothers, namely, the Appellants No. 1 & 2 and the Respondent No. 5 & 6 held altogether 134 acres of land. 35.47 acres of such land were situate in Village Punaura under Dumra Circle in the District of Sitamarhi. The remaining were distributed in three Villages, namely, Chaumukh, Balia and Ratanpura under Bochhan Circle in the District of Muzaffarpur. When the land ceiling proceedings were initiated, four returns were filed; one by the Appellant No. 1 whereby and under it was held out that four brothers are joint and the total land held by them is 134 acres. In the separate return filed by the Appellant No. 2, he held out that the brothers are separate and in his share he has 30 acres of land situate in the aforementioned three villages under Bochhan Circle in the District of Muzaffarpur. In the return filed by the Respondent No. 5, he held out that the brothers are separate and on the basis of his share he is holding 35.47 acres of land situate in Village Punarua under Dumra Circle in the District of Sitamarhi. The Respondent No. 6 in his return held out that on his own right he is entitled to 37 acres of land situate in the three villages, as named above, under Bochhan Circle in the District of Muzaffarpur. The returns were then considered by the first authority appointed under the Act who held that notionally the brothers were separate in relation to the lands in question and permitted the Respondent No. 5 and his sons to retain 35.47 acres of land, and at the same time permitted the Respondent No. 6 and his sons to retain 37 acres of land. However, the said authority did not permit the Appellant No. 2 to retain 30 acres of land and directed a part thereof to vest in the State Government. The appellant No. 1 was permitted to retain less than 28 acres of land and the remaining were directed to vest. 2. The lands in question were classified as Class IV lands and in accordance with the law as applicable, one unit is entitled to retain 30 acres of land. There is no cogent reason why the Appellant No. 2, therefore, was not entitled to retain 30 acres of land in respect of which he had submitted his return. 2. The lands in question were classified as Class IV lands and in accordance with the law as applicable, one unit is entitled to retain 30 acres of land. There is no cogent reason why the Appellant No. 2, therefore, was not entitled to retain 30 acres of land in respect of which he had submitted his return. In so far as the Appellant No. 1 is concerned, after deducting the lands held by the Appellant No. 2 and the Respondent No. 5 & 6, he could have approximately 31.5 acres of land, but in law, he was entitled to retain only 30 acres of land for he was on unit. In such view of the matter it was obligatory on the part of the said authority to permit the Appellant No. 1 to exercise his option under Section 9 of the Act to choose 30 acres of land to be retained out of approximately 31.5 acres of land. That was not, however, permitted. 3. Furthermore, while proceeding on the basis that the brothers are notionally separate in so far as the landed properties are concerned, in the matter of determining the land to be returned, the first authority clubbed the brothers and the lands and divided the same by the number of the brothers for the purpose of arriving at the (and to which each brother is entitled to. This is not permissible in terms of the provisions contained in the Act. If the brothers were joint then they should have been dealt with the manner as provided in the Act proceeding on the basis that the brothers are joint. They could not be held to be separate for the purpose of determining the land to be retained individually by the three brothers and their children and then club all of them as well as all the lands belonging to all for the purpose of determining the land to be retained by the unit headed by one of the brothers. In the event the first authority was of the view that the brothers were all joint as on 9th September, 1970, the one and the only conclusion would have been in terms of the mandate contained in the Act that no land is in excess for all the brothers were joint and were entitled to more than 160 acres of land. The order as passed by the first authority has been upheld by the revisional authority. 4. The decisions of the first authority and the revisional authority were assailed in the writ petition. In the writ petition it was contained that the brothers were not separate. At the time when the writ petition was heard, none appeared on behalf of the parties, except the respondent No. 6. As a result, the learned Single Judge proceeded on the basis that the contention that the petitioners are still joint cannot be held good in view of the concurrent findings of fact by the authorities who were entitled to determine facts on issue. In as mush as no one assisted the learned Single Judge, the learned Single judge failed to take note of the fact that having regard to the Class of land, the Appellant No. 2 was entitled to retain 30 acres of land, in respect of which, he had submitted the return and accordingly there was no question of taking out any part of such land as surplus land. Similarly in as much as no one appeared on behalf of the appellant no. 1 before the learned Single Judge, it could not be pointed out to the learned Single Judge that the Appellant No. 1 has a statutory right under Section 9 of the Act to exercise an option to retain 30 acres of land out of approximately 31.5 acres of land. 5. In such view of the matter, we allow the appeal, set aside the impugned order and modify the order passed by the first authority under the Act as well as by the revisional authority to the extent that the Appellant No. 2 shall be entitled to retain 30 acres of land for which he had filed the return, for in terms of the classification of the land as Class IV land, by reason of the mandate contained in the statute, the Appellant No. 2 is entitled to retain, as on unit, 30 acres of land; and in as much as Section 9 of the Act grants specific right to the Appellant No. 1 to exercise option to choose 30 acres of land to be retain out of approximately 31.5 acres of land, he is entitled to exercise such option, and upon he exercising such option, he shall be permitted to retain 30 acres of land. Let the Appellant No. 1 exercise such option within a period of three months from today in terms of the provisions contained in the Act. This disposes of the letters patent Appeal.