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2007 DIGILAW 1224 (PAT)

Ram Sagar Choudhary v. State Of Bihar

2007-07-26

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard learned counsel for the petitioners. No one appears for the private respondents although notices were duly served upon them and they have also filed Vakalatnama. Learned J.C. to AAG-4 appears for the State-respondents. 2. The petitioners seek quashing of the order dated 5.5.2000, 22.10.1984 and 20.1.1984 passed by respondent nos. 2 to 4 by which all the aforesaid respondents have decided the matters against the petitioners. 3. The facts giving rise to the present writ application are that the admitted Raiyat of the land in question, namely, Dukhan Singh predecessor in interest of respondent nos. 5, 7 and 8 executed a registered deed of gift in favour of Bilas Choudhary, father of these petitioners on 4.11.1964. It is stated that thereafter the father of the petitioner was in continuous cultivating possession over the disputed land and after his death the petitioners are coming in possession over the same and cultivating it. Further, by order dated 30.8.1971 the name of the peitioners father was mutated in the revenue records of the State on the basis of the said deed of gift. It is stated that they have been paying rent to the State of Bihar since then and canal parcha as well as water rent in respect of the disputed land have also been prepared in the name of the father of the petitioners. Around the same time during the revisional survey despite the said developments the R.S. Khatian was prepared in the name of Dukhan Singh. In Consolidation Case No. 9/1972-73 the father of the petitioners challenged the said entry and ultimately by order dated 19.10.1975 passed under Sec. 10(2) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, the matter was decided in favour of the petitioners father after due notice to the other side and the khatian entry was directed to be rectified. It is stated that respondent nos. 5 to 8 filed an appeal against the said order but the same was dismissed and no further revision was preferred by them and thus the order has become final and could not be reopened by the Consolidation authorities. With respect to the said statement made in para-12 of the writ application the only answer given in para-12 of the counter affidavit in reply is that it requires no comments by the answering respondents and thus the said fact stands admitted. With respect to the said statement made in para-12 of the writ application the only answer given in para-12 of the counter affidavit in reply is that it requires no comments by the answering respondents and thus the said fact stands admitted. Thereafter, it appears that around the same time Dukhan Singh filed Title Suit No. 467/1975 in which he sought a declaration that the deed of gift dated 4.11.1964 is void and not binding on him. In the said suit he also filed an application for being permitted to sue in forma pauperis which was numbered as Misc. Case No. 6/1976. After his death a substitution petition was filed by his legal heirs, i.e. the private respondents. Ultimately the application to sue in forma pauperis was dismissed by order dated 12.2.1979 (Annexure-7) holding that Miscellaneous case was not maintainable. On the said date later on it was ordered that in view of the orders passed in Misc. Case the plaint is also rejected as there is no plaintiff. 4. After lapse of 9 years from the earlier order passed in Consolidation. Case No. 9/1972-73. respondent nos. 5 to 8 filed Consolidation Case No. 7686/1983-84 without notice to the petitioners and the impugned order dated 20.1.1984 was passed. When the petitioners learnt about the said order, they filed appeal being Case No. 1357/83-84 which was dismissed in default on 19.10.1984 and the restoration application filed on the same date was also dismissed on 20.10.1984. Subsequently, the petitioners filed Revision Case No. 3167/1989 before the Director, Consolidation but the same was also dismissed upon which the petitioners along with respondent no. 9 filed CWJC No. 371 of 1987 which was allowed by this Court and the matter was remanded back to the Director, Consolidation for consideration afresh on merit. Thereafter, the Director, Consolidation has passed the impugned order dated 5.5.2000 dismissing the revision application. 9 filed CWJC No. 371 of 1987 which was allowed by this Court and the matter was remanded back to the Director, Consolidation for consideration afresh on merit. Thereafter, the Director, Consolidation has passed the impugned order dated 5.5.2000 dismissing the revision application. The reasons stated in the said order are that in the revisional survey khatian the name of husband and father of the respondents have been entered and receipt has also been issued in their name till 1984-85 and the mutation with respect to the deed of gift dated 4.11.1964 was done in the year 1971 which clearly show that the deed of gift was not acted upon and further it was held that the deed of gift was not acted upon for 18 years and thus, the Director, Consolidation has held that the revisional survey khatian entry should be maintained and has dismissed the revision application. 5. Learned counsel for the petitioners submits that the order dated 19.10.1975 passed in Consolidation Case No. 9/1972-73 operates as res judicata having acquired finality on the dismissal of the appeal and no revision having been preferred against it and thus, it was not open to the consolidation authorities to again allow the same matter to be agitated in a fresh consolidation case. It is further contended by the learned counsel for the petitioners that the impugned order dated 5.5.2000 practically sets aside the deed of gift which is beyond the jurisdiction of the consolidation authorities and can only be done by a competent civil court. Until and unless the deed of gift executed by a person having title is declared void and set aside or cancelled by a competent Civil Court, it is not open to any of the revenue authorities, including the consolidation authorities, to treat it as a nullity. 6. In this regard learned counsel for the petitioners relies upon a decision of a Division bench of this Court in the case of Jaleshwar Tiwary and Ors. vs. Suresh Tiwary and Ors.; 1986 BLJR 368, in para-7 of which it has been held as follows: "Learned counsel for the petitioners has contended that in the plaint it has been specifically pleaded that the deed of gift executed by Jai Ram Tiwary from whom the plaintiffs derived title in the suit lands is void ab initio and, therefore, the Consolidation Court has jurisdiction to entertain the suit. It appears that the contention of learne counsel for the peitioners has no substance as the plaint, reading as a whole, indicates that the allegation was that the deed of gift was executed by Jai Ram Tiwary by practising fraud and undue influence. Apart from the allegation that it was a forged and inoperative document and never read and explained to said Jai Ram Tiwary, the further allegation was that he was not in a disposing state of mind when the said deed was executed and was sufficiently old having little understanding faculty. The further allegation in the plaint was that he was a patient of blood pressure and Asthma and his mind had gone wrong and his memory was lost as well. It is therefore, clear that the relief for cancellation of the deed of gift or its setting aside was prayed for on the ground of fraud practised upon Jai Ram Tiwary the executant of the deed of gift. Such a document cannot be said to be a void document, but is a voidable one. This view is supported by an unreported Bench decision of this court in the case of Jiawan Pandey and others vs. Mahendra Rai (1) (Civil Revision No. 50 of 1981 disposed of on 5.3.1984). In that case also a deed of gift was alleged to be forged, fabricated and collusive document. Specific allegation was that the defendant got the said document executed by the plaintiff when the latter was in a state of intoxication loosing complete sense of understanding. On these grounds the document was pleaded to be a void document. After discussing various decisions, it was decided by the Division bench in that case that such a document was violdable one and required to be set aside by a Competent Court and as the consolidation officer had no jurisdiction to set aside or cancel such a document, the suit did not abate. The principle laid down in that case fully applies in the present case. The conclusion of this unreported decision is based on the Full Bench decision in Most. Rupia vs. Bhatu Mahton (2) (AIR 1944 Pat. 17 (F.B.). This Court, therefore, finds no difficulty in applying the principle laid down in this unreported Bench Decision in Jiawan Pandeys case (supra)." 7. The conclusion of this unreported decision is based on the Full Bench decision in Most. Rupia vs. Bhatu Mahton (2) (AIR 1944 Pat. 17 (F.B.). This Court, therefore, finds no difficulty in applying the principle laid down in this unreported Bench Decision in Jiawan Pandeys case (supra)." 7. On the same issue learned counsel also relies upon a decision of the Supreme Court in the case of Gorakh Nath Dube vs. Hai Narain Singh and others: AIR 1973 SC 2451 , in para-5 of which it has been held as follows: "We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but where there is a document the legal effect of which can only be taken away by setting it aside of its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a Court having the power to cancel it." 8. Upon a consideration of the entire facts and circumstances and the decisions cited by the learned counsel for the petitioners, this Court finds force in the submissions of learned counsel for the petitioners. The order having been passed by the Consolidation authority as far back as in 1975 against which the appeal filed was also dismissed and the order was allowed to acquire finality by not filing any revision against the same, cannot be reagitated in second round of litigation after 9 years before the same consolidation authorities. The order having been passed by the Consolidation authority as far back as in 1975 against which the appeal filed was also dismissed and the order was allowed to acquire finality by not filing any revision against the same, cannot be reagitated in second round of litigation after 9 years before the same consolidation authorities. 9. On the question of jurisdiction of the Consolidation authorities to cancel the deed of gift as not binding on the parties without the same having cancelled by a Court of competent jurisdiction also, this Court is in agreement with the submissions of the learned counsel since that also has been clearly decided by the Apex Court and the Division bench of this Court. The deed of gift not having been cancelled by any Court of Law although attempt was made by the executor of the said deed as far back as in 1975 by filing Title Suit No. 467/1975 but the same was not pursued and ultimately rejected, then unless and until the said deed of gift is cancelled it is not open to the consolidation authorities to treat the same as not having been acted upon and in effect cancelling it when it has not been cancelled by a competent Court. 10. Even factually this Court finds that once the petitioners had moved for mutation and mutation was also granted on 30.8.1971 no such conclusion can be drawn that the deed of gift had not been acted upon merely because mutation had been applied 6-7 years after the execution of the deed. 11. On a consideration of the aforesaid facts and circumstances. the writ application is allowed and the impugned orders dated 5.5.2000, 22.10.1984 and 20.1.1984 are set aside.