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2009 DIGILAW 1645 (JHR)

Mahendra Vishwakarma v. State of Jharkhand

2009-12-23

D.N.PATEL

body2009
ORDER 1. Learned counsel for the petitioner vehemently submitted that the order passed by the Certificate Officer, Baghmara, Distt:-Dhanbad, has unnecessarily interfered with the title of the present petitioner upon the property, in question, especially, when the title suit filed by Respondent No. 5 being Title Suit No. 58 of 2008, is pending before the Sub Judge-I, Dhanbad. Even injunction application preferred under Order 39, Rules 1 & 2 of Code of Civil Procedure is pending before the trial court and has not yet been decided in favour of Respondent No. 5, who is plaintiff in Title Suit No. 15 of 2008. Thus, the Circle Officer, Baghmara, District-Dhanbad, who has granted permission of construction upon the suit property is nothing, but, an interference with the justice delivery system. Revenue Officer has no power, jurisdiction and authority to decide title of the property, in question. 2. It is also vehemently submitted by learned counsel for the petitioner that the petitioner is the owner of the property and permission of construction has been given to Respondent No. 5 by the Circle Officer, Baghmara, District-Dhanbad vide order dated 4th of January, 2008, Annexure-7 to the memo of petition and, therefore, the present petition has been preferred by the petitioner mainly for the reasons that Respondent No. 5 is claiming title and ownership upon the property. When his right is in belligerent stage, no permission of construction could have been given by the Circle Officer, Baghmara, District-Dhanbad, otherwise, it tantamounts to a decision upon the title of the property. It also tantamounts to an irreparable loss to the present petitioner to the effect that constructed property can be sold away by the Respondent No. 5 and if the suit filed by respondent No. 5 is dismissed, peaceful and vacant possession cannot be obtained by the petitioner. This aspect of the matter has also not been appreciated by the Circle Officer, Baghmara, Distt:- Dhanbad. 3. It is also contended by the learned counsel for the petitioner that basically respondent No. 5 ought not to have approached even the Circle Officer, Baghmara, because they have already filed Title Suit No. 15 of 2008, before the Sub Judge I, Dhanbad. 3. It is also contended by the learned counsel for the petitioner that basically respondent No. 5 ought not to have approached even the Circle Officer, Baghmara, because they have already filed Title Suit No. 15 of 2008, before the Sub Judge I, Dhanbad. When the Title Suit is pending, Revenue Officer cannot decide the title upon the property and lastly, it is submitted by learned counsel for the petitioner that initially, the stay was granted in favour of the petitioner under Section 144 of the Code of Criminal Procedure by Sub Divisional Magistrate, Dhanbad for the very same suit-property and the possession of the present petitioner upon the suit property is also, prima facie, established. This aspect of the matter has not also been appreciated by the Circle Officer, Baghmara, Distt:-Dhanbad, who has passed impugned order, Annexure-7 without giving any opportunity of being heard to the petitioner, otherwise, order passed by the Sub Divisional Magistrate, Dhanbad, dated 27th of January, 1996, Annexure-2 to the memo of petition could have been brought to the notice of the Circle Officer. Thus, even otherwise, also the order passed by the Circle Officer, Baghmara, deserves to be quashed and set aside. 4. I have heard learned counsel for the Respondent No. 5, who is a contesting respondent. It is submitted by him that it is true that respondent No. 5 has filed Title Suit No. 15 of 2008, and in an injunction application preferred by respondent No. 5, who is plaintiff in the suit under Order 39, Rules 1 & 2 of the Code of Civil Procedure is pending and in that matter, notice has also been issued. In fact, the present petitioner is not owner of the property, in question. Originally, one Shri Mewa Lal Mistry and Munsi Lal Mistry were the original owners and, as stated in the plaint, especially in Paragraph Nos. 3, 4, 5, 6 and 7, respondent No. 5, being a grand-son of Mewa Lal Mistry, is an owner of the property, in question, whereas the petitioner is not at all, a legal heir neither of Mewa Lal Mistry nor of Munsi Lal Mistry and, therefore, the order passed by the Circle Officer, allowing construction of the suit-property is absolutely true, correct and in consonance with the facts of the case and, therefore, this petition deserves to be dismissed. 5. 5. Having heard learned counsel for both the sides and looking to the facts & circumstances of the case, it appears that:- (i) for the land in question, several persons are claiming ownership including the present petitioner and the respondent No. 5. (ii) from the facts of the case that respondent No. 5 instituted Title Suit No. 58 of 2008 before the Sub Judge I, Dhanbad. The said suit is pending before the said court. (iii) also from the facts of the case that injunction application in the aforesaid title suit has also been preferred by respondent No. 5 (Plaintiff of Title Suit No. 58 of 2008) under Order 39, Rules 1 & 2 of the Code of Civil Procedure and no order till today, has been passed on the said injunction application in favour of the respondent No. 5. It is only at notice stage. (iv) from Annexure-2 to the memo of petition that initially, some proceedings were initiated under Section 144 of the Code of Criminal Procedure, 1973, and the Sub Divisional Magistrate, Dhanbad, has passed order on 27th of January, 1996, which is in favour of the present petitioner so far as the possession of the suit property is concerned. Thus, prima facie, there is a possession of the present petitioner as submitted by the learned counsel for the petitioner. (v) it further appears from the facts of the case that the Circle Officer, Baghmara, District-Dhanbad, was approached by the respondent No. 5, who has granted permission of construction upon the suit property despite the fact that the title suit is pending. When Title Suit No. 58 of 2008, is pending it ought to have been kept in mind by the Revenue Officer that whenever for any possession of property title is in dispute and suit is pending, no permission of construction could have been granted, otherwise, irreparable loss will be caused to the another party because generally a constructed property will be sold away and several persons will have to be impleaded as the party in the suit who may be a bona fide purchaser.Thus, it will be extremely difficult even for another party, even after succeeding in the trial, to get a peaceful and vacant possession of the suit-property. Likewise, respondent No. 5 ought not to have approached the Circle Officer, Baghmara, Distt:-Dhanbad, for getting permission of construction over suit-property, when their rights are not decided as owner, physical possession is with the petitioner, as per Annexure-2 and as per their allegation. Moreover, the Circle Officer, Baghmara, has passed an order, which is grossly detrimental to the interest of the petitioner and which is without giving any opportunity of being heard to the petitioner. Therefore, also, the impugned order, Annexure-7, passed by the Circle Officer, Baghmara, dated 4th January, 2008 deserves to be quashed and set aside. 6. As a cumulative effect of the aforesaid facts & reasons and especially, pendency of the civil suit being Title Suit No. 58 of 2008, and as the order has been passed without giving an opportunity of being heard, I hereby, quash and set aside order, passed by the Circle Officer, Baghmara, Distt:-Dhanbad, dated 4th January, 2008, Annexure-7 to the memo of petition. 7. In view of the aforesaid submissions, this writ petition is allowed and disposed of.