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2007 DIGILAW 1397 (PAT)

Rohit Rai v. State Of Bihar

2007-08-22

J.N.BHATT

body2007
Judgment J.N.Bhatt, J. 1. By this writ petition under Article 226 of the Constitution of India, the petitioners have questioned the legality and validity of the order, dated 24.3.1987, recorded by respondent no. 2, Joint Director of Consolidation, Bihar, Patna, in Consolidation Revision Case No. 605 of 1982, which was filed by the private respondent no. 5, whereby, the order, dated 30.3.1982 passed in Appeal No. 80 of 1981-82 by the respondent, Deputy Director of Consolidation, Bhojpur at Ara, confirming the order, dated 18.2.1982 passed in Objection Case No. 36 of 1978 by respondent no. 4, the Consolidation Officer, Rajpur, came to be reversed. Hence, this writ petition at the instance of the respondent in revision. 2. The dispute revolves round the partial land measuring about 48 decimals out of C.S. Plot No. 1559, appertaining to C.S. Khata No. 271. The total area of land of C.S. Plot No. 1559 is 1.83 acres. 3. It is noticed from the record that revisional survey khatiyan plot no. 1913 (30 decimals) and revisional survey khatiyan plot no. 1916 (10 decimals), were carved out from the said area and the same had been recorded in R.S. Khata No. 255, which is situated in mauja Dhansaoin, Thana No. 539. The name of the original petitioner came to be recorded in respect of the land bearing R.S. Khata No. 255 (R.S.P. Nos. 1913 and 1916). Both the parties are claiming to have received the property in legacy and they have submitted two different genealogies. 4. The genealogy in tabular form relied by the petitioners is here as under: Whereas, the private respondents table which is as follows: have submitted a separate geneallogical It is the case of the petitioners that they are relatives of common ancestor, Dulam Roy, and there was a private partition in respect of the land between the family of the petitioners arid other cosharers including respondent no. 5, since deceased, represented by heirs. 5. During revisional survey operation in respect of the disputed land, only unauthorised possession of the original petitioner no.1 was recorded and khata was opened in the name of Keshav Roy (respondent no. 6). It was the case of the petitioner before the Circle Officer, that respondent no. 6 appeared and accepted the claim of the original petitioner no. 1 by virtue of which there was an order for opening khata in respect R.S.R Nos. 6). It was the case of the petitioner before the Circle Officer, that respondent no. 6 appeared and accepted the claim of the original petitioner no. 1 by virtue of which there was an order for opening khata in respect R.S.R Nos. 1916 and 1913 in the name of the original pettioner no. 1 Feka Roy, Photocopy of the said order is placed as Annexure 4 to the writ petition. 6. It is, also, the case of the petitioners that no objection was filed on behalf of the contesting respondent no. 5 after the aforesaid order came to be passed by the survey authority for opening khata in the name of the original petitioner no. 1, therefore, respondent no. 1 had filed a petition wherefrom a case no. 178 of 1966-67 came to be initiated before the Circle Officer for mutation of his name on the basis of private partition as stated earlier. The Circle Officer, Rajpur, did not allow mutation in respect of the disputed land as claimed by original petitioner no. 1. Therefore, he filed an appeal no. 66 of 1966-67 in the Court of Land Reforms Deputy Collector, Buxar. On 18.10.1967, the Land Reforms Deputy Collector set aside the order of the Anchaladhikari, Rajpur, and passed an order in favour of the original petitioner no. 1. 7. Original respondent no. 5, Ram Prasad Roy, had contested before the Land Reforms Deputy Collector, Buxar. He did not prefer any appeal or revision against the order of the LRDC, Buxar. The LRDC had given a specific finding of fact that: "But in this case the position is of such a long period that no other decision but to accept unequivocally that the appellant (Feku Rai) is equipped that title and possession. In this case it will be unjust to deny the claim of appellant and I therefore allow the appeal and set aside the order of Anchaladhikari." 8. There were proceedings under Sec. 145 of the Code of Criminal Procedure, 1973, in which the original respondent no. 5, Ram Prasad Rai, was first party, whereas, the original writ petitioner Feka was second party. On 25.10.1968, the proceeding came to be disposed of in terms of the compromise arrived at between the parties. In the compromise petition, it was stated that respondent no. 5, Ram Prasad Rai, was first party, whereas, the original writ petitioner Feka was second party. On 25.10.1968, the proceeding came to be disposed of in terms of the compromise arrived at between the parties. In the compromise petition, it was stated that respondent no. 5 will not have any right or concern with 51- 1/2 decimals of land out of C.S.R No. 1559 as well as it was mentioned therein that original petitioner no. 1 Feka Rai will have no concern and right with the remaining land of C.S. No. 1559. The order dated 25.10.1968 in this behalf is placed on record as Anenxures 5 and 5/1 to the writ petition. 9. Thereafter, the original respondent no. 5 Ram Prasad Rai and others has filed Title Suit No. 119 of 1967 after issuance of notice under Sec. 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Act of 1956), challenging the entries made in the records of rights in favour of original petitioner no. 1. The said suit stood abated under sec. 4(c) of the Act of 1956. 10. The original respondent no. 5, Ram Prasad Rai, had filed Objection Case No. 36 of 1978 in the Court of Consolidation Officer, Rajpur for recording his name in respect of the disputed land and for setting aside the revisional survey entry in the name of original petitioner no. 1. In that case, the Consolidation Officer, respondent no. 4 held in favour of the original petitioner no. 1 rejecting the objection filed by respondent no. 5. Against this, the original respondent no. 5 Ram Prasad had filed an appeal no. 80 of 1981-82 before the Deputy Director of Consolidation (respondent no. 3) but the appeal also came to be dismissed on 30.3.1982. Thereafter, the respondent no. 5 filed Consolidation Revision No. 605 of 1981-82, which came to be allowed by order, dated 24.3.1987, setting aside the order of the Consolidation Officer, respondent no. 3, which was confirmed in appeal by respondent no. 2. Therefore, this writ petition under Article 226 of the Constitution of India. 11. This Court has heard the learned counsel for the parties at marathon length. This Court has also examined the documentary evidence and factual profile and the relevant provisions of law. 12. It appears that the concurrent findings of fact recorded in favour of the original petitioner no. Therefore, this writ petition under Article 226 of the Constitution of India. 11. This Court has heard the learned counsel for the parties at marathon length. This Court has also examined the documentary evidence and factual profile and the relevant provisions of law. 12. It appears that the concurrent findings of fact recorded in favour of the original petitioner no. 1 by two revenue authorities respondent nos. 3 and 4 came to be reversed by respondent no. 2 in revision exceeding its power by passing a cryptic order 13. Let it be mentioned that the revisional power is enshrined in Section 35 of the Act of 1956. Sec. 35 of the Act of 1956 reads here as under: "35. Revision and reference.The Director of Consolidation may of his own motion or on the application of any party or on reference being made by any subordinate authority, call for and examine the record of any case decided or proceedings taken by such authority for the purpose of satisfying himself as to the regularity of the proceeding; or as to the correctness, legality or propriety of any order passed by such authority in the case or proceeding, and may after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit." 14. It could very well be visualized from the aforesaid provisions that the object and underlying design of the said provision is to empower the Director of Consolidation to see that subordinate revenue courts are not acting arbitrarily and illegally in exercise of their jurisdiction. The scope in the revisional court also is very much circumscribed unlike the appeal. The Hon ble Apex Court has held in the case of Sher Singh vs. Joint Director, Consolidation (1978)3 SCC 172 that the scope and the power of the Director of Consolidation under Sec. 35 of the Act of 1956, in revision, is to consider illegality, impropriety or arbitrariness on the part of the revenue courts. Unless and until it is successfully shown that there is gross injustice of misreading the evidence, the findings of this Courts below could not be reversed. 15. It is not even whispered in the order passed in revision that there was justification to interfere-why the discretion came to be exercised and what serious prejudice came to be caused to the respondent no. 5? 15. It is not even whispered in the order passed in revision that there was justification to interfere-why the discretion came to be exercised and what serious prejudice came to be caused to the respondent no. 5? Therefore, the exercise of power of the revisional court is improper and unjust and unreasonable. Therefore, the interference of this Court by invocation of the provisions of Article 226 of the Constitution of India is warranted. The mention in the revisional order that no document is produced to show the right of the petitioner is, also totally misconceived in the light of the order of the Consolidation Officer (respondent no. 4) in which all details are elaborately highlighted and enumerated. The number of documents relied on by the petitioner and relied on by the Consolidation Officers are also mentioned which came to be affirmed in appeal. Unfortunately, the concurrent findings of facts recorded by the two revenue courts came to be reversed by virtue of the order recorded in revision by respondent no. 2 without any justification. Therefore, this Court is left with no alternative but to quash it by exercise of power under Article 226 of the Constitution of India. 16. In the net result, this writ petition shall stand allowed and the impugned order of the revisional court, dated 24.3.1987 passed in Consolidation Revision No. 605 of 1982 by respondent no. 2, the Joint Director of Consolidation, Bihar, Patna, shall stand quashed and set aside. Rule is made absolute. No costs.