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2007 DIGILAW 778 (PAT)

Deep Narain Dubey v. State Of Bihar

2007-04-18

AFTAB ALAM

body2007
Judgment Aftab Alam, J. 1. Heard Mr. Ganpati Trivedi, counsel for the petitioner. The State counsel is also present. No one appears for the private contesting respondents. 2. The petitioner challenges the orders passed by the consolidation authorities directing that in the remarks column of the land register it should be recorded that respondents 6 to 11 had the right of passage and drainage over a piece of land admitedly held by the petitioner. 3. The dispute relates to R.S. Plot no. 235 under khata no. 60, situate at village Hemrajpur, P.S. Amarpur, revenue Thana No. 249 in the district of Bhagalpur (now Banka). 4. Initially the respondents filed an objection for entering their names in regard to the disputed land. The objection was rejected by the Consolidation Officer, Amarpur by order, dated 23.2.1988 (Annexure 5/1). The respondents did not take the matter any further and the order, thus, attained finality. Later, they filed an application claiming right of passage and the right to flow the drain water over the disputed plot. This time their application met with success and the Consolidation Officer allowed their claim by order, dated 29.2.1988. Appeal and revision filed by the petitioner were dismissed by orders, dated 23.6.1988 and 13.1.1989 passed respectively by the Dy. Director Consolidation, Bhagalpur and the Principal, Consolidation Training Institute, Patna. 5. From para 2 of the revisional order it is clear that the dispute between tne parties was with regard to the respondents right of passage and for the flow of Nala water over the disputed plot. The revisional authority examined the materials produced before it and came to hold and find that the existence of the right was established and accordingly affirmed the orders passed by the original and the appellate authorities and rejected the revision filed by the writ petitioner. 6. Mr. Trivedi submitted that all the three orders were patently without jurisdiction inasmuch as the consolidation authorities had no power or authority to decide a dispute concerning easementry rights. Mr. Trivedi submitted that the petitioners title over the disputed land was not in question. He further submitted that the disputed plot was not an agricultural land and it was not the respondents case that the flow of water was in the nature of any water channel for agricultural purpose. Mr. Trivedi submitted that the petitioners title over the disputed land was not in question. He further submitted that the disputed plot was not an agricultural land and it was not the respondents case that the flow of water was in the nature of any water channel for agricultural purpose. He also submitted that the respondents were claiming the right of passage and the right to flow the drain water over the petitioners land by prescription. Mr. Trivedi then referred to the definition of land as contained in sub-sec. (9) of Sec. 2 of the Bihar Holdings Act. The definition is as follows: "(9) "Land" means agricultural land, and includes horticultural land, Kharaur land, land with bamboo clumps, pasture land, cultivable waste land, homesteads, tanks, wells and water channels." 7. He also referred to the definition of encumbrance as contained in Sec. 2(8) of the Act which is as follows: "(8) "Encumbrance" includes the right of an under-raiyat in a holding or part thereof, but does not include a right of easement." 8. Learned counsel submitted that a right of easement was expressely excluded from the definition of encumbrance and it, therefore, did not fall within the jurisdiction of the consolidation authorities to adjudicate on any dispute concerning easementary rights. In support of the submission he also relied upon a bench decision in Munsi Pasi V/s. Thakur Seth, 1980 0 PLJR 363. The decision vide paras 6 and 7 fully supports the submission advanced by him. 9. In light, of the discussions made above the petitioners submission is accepted. It is held that, having regard to the nature of the dispute the matter was beyond the jurisdiction of the consolidation authorities. The three orders must, therefore, be held to be without jurisdiction. All the three orders are accordingly set aside. 10. In the result this writ petition is allowed but with no order as to costs.