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2006 DIGILAW 925 (PAT)

Marchai Naw Alias Marchai Sharma And Another v. State Of Bihar

2006-10-12

AJAY KUMAR TRIPATHI, BARIN GHOSH

body2006
Judgment 1. Appellants purchased the land in question in 1964. The conveyance by which the land was transferred in favour of the appellants does not trace the title of the vendor of the appellants. It appears that the vendor of the appellants was a party to a partition suit instituted in 1970. It also appears that the vendor of the appellant did not contest the said suit. In 1971, i.e., after filing of the suit, the appellants got their names recorded in the survey record in respect of the land in question. The suit has been decreed and thereby it has been declared that the land in question was held by the parties to the suit jointly. That decree has reached finality. However, partition by metes and bounds has not yet been effected. 2. Before the Consolidation Officer, it is claimed, that a document was submitted by the vendor of the appellant suggesting that a mutual partition took place in between the parties, and accordingly on the basis of the said document, the vendor of the appellants acquired absolute title to the land in question. Considering this document and ignoring the decree passed by the Civil Court, the first authority exercising power under the Act held in favour of the appellant which was reversed by the appellate authority but again upheld by the revisional authority. A challenge thrown to the decision of the revisional authority by filing the writ petition succeeded and accordingly the order of the revisional authority has been quashed, which has resulted in filing of this letters patent appeal. 3. The learned counsel for the appellants contended that the survey records are the conclusive records in relation to the title of the property in terms of the provisions of the Act. That is so but subject to the decisions rendered by the Court. Admittedly survey record upon which the appellants are relying came into existence in 1971 whereas the suit was admittedly instituted in the year 1970. Although the decree in the suit was passed in 1974 but them, in law, the decree relates back to the date of presentation of the plaint. Accordingly recording of the name of the appellant in the survey record in 1971 is subject to the decree passed in the suit in 1970 and as such this survey record is of no help to the appellants. 4. Accordingly recording of the name of the appellant in the survey record in 1971 is subject to the decree passed in the suit in 1970 and as such this survey record is of no help to the appellants. 4. The learned counsel for the appellants further submitted that he must be given an opportunity to establish that in 1961 partition was effected and accordingly the vendor of the appellant acquired full title to the land in question. In as much as the appellants themselves did not bother to look into that document while purchasing the land in question, as the said document has not been mentioned in any part of the conveyance obtained by the appellants, it would not be appropriate on our part to permit the appellants to place reliance on such document. Furthermore, having regard to the judgment rendered in the suit, the 1961 document purporting to be a partition, lost all its force. Unless the decree passed in the suit is set aside or declared as a nullity, no one can look into that document of 1961 purporting to be a partition by ignoring the decree. For those reasons also we did not permit the appellants to look upon the 1961 document to establish that their vendor had title to the land in question. We make it clear that although there is a reference to a 1961 document in the order of the first authority exercising jurisdiction under the Act, but the said document has not been brought to our notice and accordingly we are not sure of existence of any such document or that such a document did convey partition amongst the parties granting absolute ownership right of the land in question in favour of the vendor of the appellants. 5. Be that as It may, even if the same is a partition deed or a document regarding family arrangement, unless the decree is set aside, as above, or the same is declared to be a nullity, no reliance can be placed on the said document of 1961. We, therefore, find no reason to interfere with the judgment impugned. The appeal accordingly fails and the same is dismissed. 6. This judgment and order will not prevent the appellants to take appropriate recourse to law as against such party or parties, as they may be advised