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2007 DIGILAW 811 (PAT)

Nizamuddin Ansari v. State Of Bihar

2007-04-20

BARIN GHOSH, NAVANITI PRASAD SINGH

body2007
Judgment Barin Ghosh and Navaniti Pd.Singh JJ. 1. An objection filed under Sec. 12A of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 by the appellant succeeded and the appeal preferred against the order allowing such objection was rejected. However, the revisional authority upsetted the success of the appellant before the Consolidation Officer as well as before the Appellate Authority and hence the appellant approached this Court challenging the order of the revisional authority by filing a Writ Petition. The Writ Court having dismissed the Writ Petition, the present Letters Patent Appeal has been filed. 2. It is the contention of the appellant that in fact the objection, as was filed, was filed under Sec. 10 of the Act and not under Sec. 12A of the Act. The Consolidation Officer as well as the Appellate Authority treated the objection and the appeal respectively as having been filed by taking recourse to Section 12A of the Act. In order to suggest that mentioning of Sec. 12A by the said authorities was an inadvertent error, it was required at least to allege in the Writ Petition as well as in the Memorandum of Appeal filed in this Appeal that no draft scheme had been published under Section 12 of the Act before the objection was filed. No such allegation was made. That being the position it is not open for the appellant to contend that the said objection and the appeal were not under Sec. 12A of the Act, but were under Sec. 10 of the Act. 3. The right to file objection under Sec. 12A has been granted to challenge scheme of consolidation prepared under Sec. 11 of the Act and published under Sec. 12 of the Act. At that stage, for the first time, no person can come and say that he wants to alter the register of land prepared under Section 9 of the Act and published under Sec. 10 of the Act by substituting therein himself in place of the person, whose name had been recorded in the said register of land as the raiyat thereof on the ground that the person applying is entitled to hold the land and the person whose name had been recorded is not entitled to hold the same. Sec. 10A of the Act makes it abundantly clear. 4. Sec. 10A of the Act makes it abundantly clear. 4. Be that as it may, the case of the appellant was founded on the entries made in the cadestral survey and recording of the name of the appellant in Register-II by the revenue authority. The fact remains that in the cadestral survey it was shown that two brothers, one of them being the grandfather of the appellant, were the raiyats of the land in question; whereas the ancestors of the respondents were shown as sikmidars under such raiyats. It was contended that there was a partition in between the grandfather of the petitioner and his brother, but at no stage of the proceedings any evidence was brought on record to suggest any such partition. It was next contended that the brother of the grandfather died issueless. It was accordingly suggested that the property thus devolved upon the grandfather of the appellant as the raiyat thereof. It was next contended that the sikmidars either abandoned or died issueless. As regards abandonment, no evidence was brought on record. It was not suggested that those sikmidars, who died issueless, did not leave any heir. In addition to that it was shown that the State of Bihar through its revenue authority, upon entering the name of the appellant in Register-ll, acknowledged the appellant as the person responsible to pay rates and taxes pertaining to the land in question and that the entry of the appellant in the said register was made upon rejection of the objections filed thereto by the respondents. 5. The fact remains that as against those pleadings and contentions, the respondents brought on record that from 1920 they or their ancestors were paying rent to the landlord, i.e., the erstwhile zamindar. The erstwhile zamindar while filing return in 1957 in terms of the provisions of-the Land Reforms Act declared that the respondents are the raiyats of the land in question. As a result, in the revisionai survey, admittedly, the respondents were entered in Book No. 1 as the raiyats of the land in question. It was also shown that at the stage of revisionai survey, an objection was filed by the appellant objecting to acknowledging the private respondents as riayats of the land in question and the said objection was permitted to be dismissed for default and thereupon no further action was taken. It was also shown that at the stage of revisionai survey, an objection was filed by the appellant objecting to acknowledging the private respondents as riayats of the land in question and the said objection was permitted to be dismissed for default and thereupon no further action was taken. It was also established that the appellant approached for entering his name in Register-ll after the consolidation proceedings had commenced, when the revenue authority had no authority in law to make any such entry in Register-ll. Taking into these facts, the Writ Court has rightly dismissed the Writ Petition. 6. We have not been persuaded to hold contrary to what has been held by the Writ Court and accordingly there is no scope of interference. 7. It was, however, contended before us by the learned counsel appearing on behalf of the appellant that admittedly the grandfather of the appellant was the riayat of the land in question under the then zamindar. It was contended that the case of abandonment as was made out before the authorities concerned is not sustainable in the absence of notices referred to in sub-section (2) of Section 87 of the Bihar Tenancy Act, 1885. As aforesaid, the respondents have brought on record that they and their ancestors were paying rent to the landlord since 1920. The objection, as was filed under Sec. 12A of the Act, was filed sometimes in 1970. After lapse of 50 years it was not open to the appellant to call for production of any such notice. On the other hand for keeping silent for 50 years, the presumption will be that after complying with all the provisions of law including issuance of notice, the abandonment of the appellant and his ancestors had been duly established. 8. In such view of the matter the appeal fails and the same is dismissed without any order as to costs.