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2008 DIGILAW 152 (PAT)

Raghubir Singh v. State of Bihar

2008-01-22

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S.K. KATRIAR & KISHORE KR. MANDAL, JJ.-Respondent no. 5 of CWJC No. 4088 of 1986 has preferred this appeal in terms of Clause 10 of the Letters Patent of the Patna High Court, and is aggrieved by the judgment dated 11.9.97, whereby the writ petition at the instance of respondent nos. 7 to 9 herein was allowed, the order of revisional authority has been set aside, and that of the appellate authority restored, on the ground that respondent no. 5 had not taken prior permission in terms of Section 5 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as 'the Act'). We shall go by the description of the parties occurring in the writ petition. 2. A brief summary of facts is essential for the disposal of this appeal. Respondent No.5 (the appellant herein) had purchased 91 decimals of land bearing Khesra No. 3669, appertaining to Khata No. 962, situate at village Adauri, district Sitamarhi, by registered deed of absolute sale executed on 18.8.79, and registered on 21.8.79, from late Most. Annapurna Devi (wife of late Abhay Nath Jha). Respondent No.8 (Manoj Kumar Singh, Petitioner No.2), and respondent no. 9 (Subodh Kumar Singh, petitioner no. 3), both major sons of respondent no. 7 (Haribans Prasad Singh, petitioner no. 1) purchased the same plot of land from Jibnath Jha and Surajkala Ojhain, agnates of the said late Abhay Nath Jha, by registered deed of absolute sale on 31.8.79. In other words, respondent No.5 purchased the same land ten days earlier than the petitioners. According to respondent no. 5, he purchased it from the recorded tenants and the petitioners purchased the same plot of land from the agnates of the recorded tenants. Respondent no. 5 filed an application before the learned Consolidation Officer, Piparahi, for correction of the record of rights in terms of Section 10(2) of the Act. The same was allowed by order dated 26.11.80 (Annexure-2A), and the requisite correction in the survey records as per his sale deed of 21.8.79 was ordered for. Aggrieved by this order, petitioner no. 1 had filed appeal under Section 10(6) of the Act which was allowed by order dated 5.12.83 (Annexure-4), whereby the learned Assistant Director of Consolidation, Sitamarhi, held that the sale deed of respondent no. Aggrieved by this order, petitioner no. 1 had filed appeal under Section 10(6) of the Act which was allowed by order dated 5.12.83 (Annexure-4), whereby the learned Assistant Director of Consolidation, Sitamarhi, held that the sale deed of respondent no. 5 was without prior permission of the Collector of the district in terms of Section 5 of the Act and was, therefore, void. 3. In the meanwhile, petitioner no. 1 had filed an application in terms of Section 32 of the Act before the learned Collector of the district of Sitamarhi seeking cancellation of the sale deed of respondent no. 5, on the ground that they have not taken prior 1ermission of the Collector of the district in terms of Section 5 of the Act. The Collector of the district rejected the application by his order dated 29.5.84 (Annexure-3), and held that in view of the nature of the land, permission of the Collector was not needed. It is relevant to state that none challenges this order and has attained finality. Aggrieved by the aforesaid order dated 5.12.83 (Annexure-4), respondent no. 5 preferred revision application in terms of Section 35 of the Act which has been allowed by the learned Joint Director of Consolidation (Headquarters) by order dated 15.7.86 (Annexure-A), whereby he has held that permission in terms of Section 5 of the Act was not needed, and has set aside the order dt. 5.12.83 (Annexure-4). Aggrieved by the revisional order, the later purchasers preferred the writ petition which has been allowed by the impugned order. Hence this appeal at the instance of respondent no. 5, the prior purchaser. 4. While assailing the validity of the impugned order, learned counsel for respondent no. 5 (the appellant herein) submits that none of the petitioners ever raised their claim for correction of entry in their favour before the consolidation authorities. Therefore, their claim/objection is barred in terms of Section 10A read with Section 12A of the Act. He next submits that the land register and the statement of principles of Section 10A of the Act was published in September 1990, and the sale deed of respondent no. 5 was executed prior thereto. Therefore, permission was not needed. He next submitted that the order dated 29.5.84 (Annexure-3) was passed on an application under Section 32 of the Act filed by petitioner no. 1 and became final. 5 was executed prior thereto. Therefore, permission was not needed. He next submitted that the order dated 29.5.84 (Annexure-3) was passed on an application under Section 32 of the Act filed by petitioner no. 1 and became final. He next submitted that the aforesaid order dt. 5.12.83 (Annexure-4), adverse to respondent no. 5, was set aside by the revisional authority. He lastly submitted that the findings recorded by the learned revisional authority being the last court of facts, became final. 5. Learned counsel for the writ petitioners has supported the order of the learned Single Judge. 6. I have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that the most relevant proceeding was started by petitioner no. 1 when he tiled the application under Section 32 of the Act, seeking cancellation of the sale deed in favour of respondent no. 5 on the ground that the same had been registered without seeking permission of the Collector of the district in terms of Section 5 of the Act. The same was rejected by the learned Collector of the district by his order dated 29.5.84 (Annexure-3) and has attained finality. This should normally have concluded matters and, therefore, the remaining proceedings are not of much significance to determine the controversy raised in the present writ petition. 6.1. It may, however, be indicated that soon after respondent no. 5 purchased the land he had filed the requisite application in terms of Section 10(2) of the Act for necessary correction in the records, as per his sale deed which was allowed by order dated 26.11.80 (Annexure-2A), and the correction was ordered for. Secondly, the only adverse order against respondent no. 5 was passed by the learned appellate authority on 5.12.83 (Annexure-4), which too was set aside by the learned revisional authority who held that respondent no. 5 was not required to obtain permission in terms of Section 5 of the Act. 6.2. To summarize the position, the question involving issues of facts as well law are concluded by order dated 29.5.84 (Annexure-3), passed on an application under Section 32 of the Act, and has been upheld by the learned revisional court. The adverse order of the learned authority (Annexure-4) has also been set aside by the learned revisional authority. 6.2. To summarize the position, the question involving issues of facts as well law are concluded by order dated 29.5.84 (Annexure-3), passed on an application under Section 32 of the Act, and has been upheld by the learned revisional court. The adverse order of the learned authority (Annexure-4) has also been set aside by the learned revisional authority. We, therefore, disagree with the order of the learned writ court, and hold that respondent no. 5 was not required to obtain permission in terms of Section 5 of the Act for purchase of the land as per registered deed of absolute sale of 21.8.79. 6. The appeal is accordingly allowed.