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2007 DIGILAW 1790 (PAT)

Kailasi Devi v. State Of Bihar

2007-11-21

AJAY KUMAR TRIPATHI

body2007
Judgment Ajay Kr.Tripathi, J. 1. The revisional order contained in Annexure-3 dated 31.3.1989 passed by the Joint Director Consolidation (Muzaffarpur-Patna) is under challenge in the present writ application. By virtue of this order the revisional court has set aside the appellate order dated 4.4.1988 and has also upheld the order of Consolidation Officer contained in Annexure-1. 2. The main thrust of the submission based on the averments which has been made in the present writ application on behalf of the petitioner is that the Joint Director, Consolidation while exercising his power of revision under the Act has exceeded his jurisdiction. He submits that it does not fall within his domain to declare that the registered gift of deed dated 13.3.1982 executed in favour of present petitioner as void. The right of this petitioner cannot be nullified or washed away by revisional authority by putting a question mark on the authenticity of the same. According to petitioner if the gift deed in question was forged and fabricated document then the appropriate remedy for the respondent would be a civil court and not the revisional court under the Consolidation Act. 3. Some basic fact must be taken note of in the present writ application. Certain lands in question stood recorded in the R.S. Khatiyan in the name of one Inder Bhagat. The total area recorded measures 10.47 acres out of which 3.35 acres was gifted to petitioner Kailashi Devi by a registered deed dated 13.3.1982. The said Kailashi Devi is the daughter-in-law of Inder Bhagat. Inder Bhagat had two sons, Thaga Bhagat and Shankar Bhagat. It is stated that Thaga Bhagat has died leaving behind his two sons, Tribhuwan Bhagat and Jailal Bhagat. Petitioner Kailashi Devi is the wife of Shanker Bhagat. There is supposed to be a partition amongst Thaga Bhagat and Shanker Bhagat and they got separate right of their lands after partition. Inder Bhagat used to live separately from his son Shanker Mahto. Since Kailashi Devi took care of Inder Bhagat he gifted her a part of the land measuring 3.35 acres by a registered deed dated 13.3.1982. This deed of gift become the bone of contention and litigations in question were started from very initial stage. Inder Bhagat used to live separately from his son Shanker Mahto. Since Kailashi Devi took care of Inder Bhagat he gifted her a part of the land measuring 3.35 acres by a registered deed dated 13.3.1982. This deed of gift become the bone of contention and litigations in question were started from very initial stage. It may also be taken note that a criminal case was also filed against petitioner for the same said of gift deed saying that petitioner was responsible for forging and creating a gift deed. Petitioner was put on trial and was finally acquitted by order dated 6.6.1991 passed by Judicial Magistrate, 1st Class, Muzaffarpur in Complaint Case No. 235 of 1982/T.R. No. 1994 of 1996. 4. That is one aspect of the matter. The other part is that the petitioner approached the Consolidation Officer, Minapur for entering her name in the consolidation records based on gift deed which was executed in her favour. The Consolidation Officer considering the case of the parties disallowed the application of petitioner. The above order was challenged in an appeal under section 10(6) of the Consolidation Act. The appellate authority has passed the order dated 4.4.1988. Learned counsel for petitioner draws my attention to that part of the order of the appellate authority where the appellate authority has categorically recorded that any claim on question over the validity of the gift raised by the respondent do not fall within the domain of Consolidation Officer to decide. If the gift deed is said to be forged or fabricated then it is voidable document and the same can only be set aside by a court of competent jurisdiction. The appellate authority has also taken note that the basic averment and evidence which cast doubt on the authenticity of the gift deed is a so-called entry in the register showing that Inder Bhagat died on 7.3.1982. There is no other evidence to show that Inder Bhagat died on the said date. The appellate authority after going through the entry has taken note of the fact that this entry has been made on 28.8.1982 and there is no name of any informant or the person giving information about the death of Inder Bhagat. 5. Taking all these aspects of the matter into consideration as also the fact that it was not open to the consolidation authority to declare a gift deed invalid. 5. Taking all these aspects of the matter into consideration as also the fact that it was not open to the consolidation authority to declare a gift deed invalid. The order passed by the Consolidation Officer was set aside and the appeal was allowed. 6. The respondents however carried the litigation by invoking the power of revision under section 35 of the Act. The revisional order is dated 31.3.1989 and is contained in Annexure 3 to the writ application. On the face of the record learned counsel for petitioner submits that only reason why the revisional authority has set aside the order of the appellate authority is because he found gift deed to be suspicious. Based on this, the revisional authority has held in favour of the Private respondents. Learned counsel for petitioner in support of his legal submission states that the revisional court has no authority to declare a gift deed to be an erroneous and invalid document. He relies on many decisions not only of the Hon ble Supreme Court of India but also Full Bench decisions rendered by this Court. In this regard my attention is drawn to a decision in the case of Gorakh Nath Dube V/s. Hari Narain Singh & Others, AIR 1973 SC 2451 . Emphasis is placed on para 4 of the said decision. Learned counsel also relies on the decision reported in Sheoratan Chamar & Ors. V/s. Ram Murat @ Kishori Raman Singh & Ors., 1985 0 BBCJ 73 : 1985 PLJR 86 (FB) Relevant paragraphs in this regard are paragraphs 10, 12 and 14. There is another Full Bench decision reported in Kalika Kuar @ Kalika Singh V/s. The State of Bihar & Others, 1989 0 PLJR 1203. In paragraph 91 of the said decision also it was held that it is not open to the consolidation court to declare a voidable document to be an invalid piece of document. Learned counsel for petitioner also relies on the decision reported in Jaleshwar Tiwari & Ors. V/s. Suresh Tiwari & Ors., 1986 0 BBCJ 247 where a forged document was an issue but the court had come to the same conclusion with regard to the power of consolidation court in this regard. 7. Learned counsel appearing on behalf of the respondents however submits that the revisional authority has only cast doubt on the gift deed. V/s. Suresh Tiwari & Ors., 1986 0 BBCJ 247 where a forged document was an issue but the court had come to the same conclusion with regard to the power of consolidation court in this regard. 7. Learned counsel appearing on behalf of the respondents however submits that the revisional authority has only cast doubt on the gift deed. He has not declared the gift deed as invalid. By casting doubt if the consequence flow it cannot be said that he has exercised his power illegally. 8. Learned counsel however for the petitioner refutes this position of the private respondents. According to him if by casting a doubt or suspicion over the gift deed if the revisional authority has rendered the document in question redundant for all practical purposes then it does amount to declaring a document null and void. The revisional authority has exercised the power of civil court which was not vested in it with regard to such void document. 9. This Court has gone through the order passed by the revisional authority contained in Annexure-3 and the Court has no hesitation in holding that the revisional authority has adopted a clever ploy by saying that the gift deed in question was suspicious. The fact does stand that he has rendered the gift deed void by putting a question mark on the same and then ignoring its existence. Once gift deed is doubted the revisional authority has no power to decide the issue and hold in faour of the private respondents. 10. This according to me was not permissible under the law. I am in agreement with the submission of learned senior counsel appearing on behalf of petitioner that in view of the plethora of decisions in this regard the revisional authority has exercised his power illegally. This being the legal position, I have no hesitation in setting aside the impugned order contained in Annexure-1 and as well as Annexure-3 which are orders passed by the Consolidation Officer and the Joint Director, Consolidation. The above orders are accordingly quashed. 11. This writ application stands allowed. However, there will be no order as to cost.