Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1570 (PAT)

Laxmi Narayan Ram v. Narayan

2012-11-23

RAVI RANJAN

body2012
ORDER I have heard learned counsel for the petitioner as well as the State and have perused the records of this case. 2. Through this writ application, the petitioner seeks following reliefs:– (i) Issuance of an appropriate writ/order/direction commanding the respondents to vacate the land and building premises owned by the petitioner situated at Khata No.192/486 (New), Plot No.188/166-167 (New), area 31 decimals, commonly known as Liquor Warehouse at Aurangabad. (ii) To direct the respondents to hand over the peaceful vacant possession to the petitioner. (iii) To declare that the respondents have no legal authority to occupy the aforesaid premises owned exclusively by the petitioner (iv) To award suitable cost and compensation as rent for the period the premises was in possession of the respondents. (v) To pass such other order(s) as this Court may deem fit and proper. 3. The factual matrix of the case which emanates out of the pleadings of the petitioner is summarized as under: 4. The petitioner claims to be a partnership firm and owner of the property commonly known as Liquor Warehouse at Aurangabad which stands upon the land appertaining to Khata No. 192/486 (New),Plot No.188/166-167 (New) of an area of 31 decimals. Petitioner claims to have acquired the aforesaid property through the sale deed dated 31.08.1954 along with several other properties having been purchased by the petitioner in auction sale as per the order dated 07.02.1953 passed in Title Suit No.34 of 1937 by the Sub-Judge, Gaya. As a consequence, the aforesaid sale deed was executed in favour of the petitioner who was highest bidder at Rs.1,99,500/-. It is stated that the aforesaid property stands described at serial no. 11 in Schedule - A of the sale deed along with several other properties. It has further been stated that initially, the petitioner being the grantee of exclusive privilege of manufacture and wholesale supply of the country liquor under Section 22 of the Bihar Excise Act, 1950, had used the aforesaid premises as a country liquor warehouse, however, subsequently, since it ceased to be a grantee of such exclusive privilege, the premises was no longer being used by the petitioner as such. In the meantime, the employees of the Excise Department without any permission or consent of the petitioner occupied the aforesaid premises for their own personal use. The petitioner claims to have given legal notice vide Annexure 2 dated 27.09.2005 to respondent nos. In the meantime, the employees of the Excise Department without any permission or consent of the petitioner occupied the aforesaid premises for their own personal use. The petitioner claims to have given legal notice vide Annexure 2 dated 27.09.2005 to respondent nos. 2 and 3 for handing over the vacant possession or to face the legal consequences. However, since no action was taken by them, the petitioner had been compelled to seek remedy before this Court under Article 226 of the Constitution of India. 5. Learned counsel for the petitioner has submitted that once the property has been purchased by the petitioner in auction sale and the concerned sale deed has been executed under the orders of the civil court of competent jurisdiction in recognition of such auction sale, the State authorities are not empowered to remain in possession of the land and the building. Learned counsel has further submitted that the petitioner was using the liquor warehouse till the year 1992-93 but, thereafter, the officials of the Excise Department are using it for their personal use. 6. A counter affidavit and supplementary counter affidavit have been filed on behalf of the State taking a stand that the land in question has been recorded as ‘Kaishre Hind House and Sahan’ in possession of ‘Sharab Khana’ in the cadastral survey record of rights published in the year 1914. It has also been stated that ‘Sharab Khana’ was under the control of the Excise Department and in the revenue records the aforesaid land had not been entered in the name of any other person. It has further been stated that, since, in the Title Suit No.34/37 in which auction sale has allegedly been ordered on 7.2.1953, the Central Government was not a party, it would not be binding upon the Government of India or the State of Bihar. A copy of survey khatian has been brought on record as Annexure-C to the supplementary counter affidavit to substantiate the aforesaid statements. It has also been stated in the supplementary counter affidavit that the Excise Department, Aurangabad, since its very inception on 19.01.1974, is in possession of the aforesaid land and before it which was under the possession of the Excise Department, Gaya. It has also been stated in the supplementary counter affidavit that the Excise Department, Aurangabad, since its very inception on 19.01.1974, is in possession of the aforesaid land and before it which was under the possession of the Excise Department, Gaya. The part of the land and building is being used as “Utpad Hazat aur Malkhana” and the same had been given to the licensees who had been awarded exclusive privilege for manufacturing and supplying of country liquor to Aurangabad District. Even from the perusal of the sale deed concerned it appears that only Pucca well, plants, machineries, furniture, fixtures and other articles appertaining to Aurangabad liquor Warehouse have been mentioned as having been transferred. However, there is no description showing any land or building, even in part, having been transferred under the aforesaid instrument. 7. Supplementary affidavit has also been filed on behalf of the petitioner bringing on record a copy of the ex parte order dated 30.12.2010 having been passed in case no.68 of 2003 by the Survey Superintendent, Gaya under Rule 111 of the Technical Rule directing for correction of the revisional survey records, which has earlier been entered in the name of the State of Bihar, by entering the name of one Kirpa Shankar Jaiswal and Girja Shankar Jaiswal on the ground that in the partition suit no.47/77 the property in question has been allotted to the petitioners’ schedule. A certified copy of the records under Section 10(1) of the Bihar and Orisa Municipal Survey Act,1920 dated 16.02.2002, showing correction in compliance of the aforesaid order, has also been brought on record. It is also contended on behalf of the petitioner that from the aforesaid Annexure-4 and 5 it appears that now even in the record of rights also necessary correction has been made in favour of the petitioner. Learned counsel has placed reliance upon a decision of the Apex Court rendered in Ambika Prasad Thakur and others etc. Vs. Ram Ekbal Rai (dead)by his legal representatives and others etc. {AIR 1966 Supreme Court 605} to impress upon this Court that the authorities cannot claim continuance of their right, title and interest on the basis of entry in the cadastral survey record of rights prepared in the year 1914 as the presumption of continuity weakens with the passage of time. Ram Ekbal Rai (dead)by his legal representatives and others etc. {AIR 1966 Supreme Court 605} to impress upon this Court that the authorities cannot claim continuance of their right, title and interest on the basis of entry in the cadastral survey record of rights prepared in the year 1914 as the presumption of continuity weakens with the passage of time. Similarly, reliance has also been placed upon a decision rendered by Full Bench of this Court in Nand Kumar Rai & ors. Vs. State of Bihar & Ors. { 1974 PLJR 27 } holding that an entry made in record of right neither creates nor extinguishes right, title and interest. Another issue has been raised on behalf of the petitioner is that once the auction sale is confirmed when no application for setting aside the sale having been filed under any of the provisions of Rules 89 to 91 of the Code of Civil Procedure or if any application under any of the aforesaid rules having been made and disallowed, the sale becomes absolute and the judgment debtor, even in case he succeeds subsequently and gets the decree reversed, would have no authority to get back the property. Learned counsel has placed reliance upon a decision of the Hon?ble Supreme Court in this regard rendered in Janak Raj Vs. Gurdial Singh and another {AIR 1967 Supreme Court 608}. Reliance has also been placed upon a decision of the Apex Court in Janatha Textiles and Others Vs. Tax Recovery Officer and another [(2008) 12 Supreme Court Cases 582} to show that it is established principle of law that in a third party auction, purchaser’s interest in the auctioned property continues to be protected notwithstanding that the underlying decree is subsequently set aside or otherwise. Thus, the case of the petitioner, being a stranger and a bona fide purchaser, would be at a higher pedestal then even the judgment debtor. It is contended that the petitioner should be afforded protection by the Court not being connected with the lis which has been decided in the suit. Thus, it is finally urged that the petitioner’s right, title and interest will have to be protected which has been created in its favour being a stranger to the suit. It is contended that the petitioner should be afforded protection by the Court not being connected with the lis which has been decided in the suit. Thus, it is finally urged that the petitioner’s right, title and interest will have to be protected which has been created in its favour being a stranger to the suit. The objection raised on behalf of the State, that the decree or purchase would not bind it, would be meaningless in view of the law laid down by the Apex Court specially when this is nobody’s case that the decree concerned later on came to be challenged in appeal and has been set aside or modified. It is lastly contended that now, after the correction made in the record of rights in favour of the petitioner, the State cannot claim its right over the concerned property and, thus, it should be directed to vacate the premises. 8. It is also stated by the petitioner that in a similar case regarding the properties acquired through the same sale deed, this Court vide its order dated 10.03.2004 passed in C.W.J.C. No.177/2004, has directed the State to handover the possession of the property to the petitioner as admittedly the property belongs to it. 9. However, even if it is assumed that property in issue in that case was also acquired by the petitioner under the same sale deed but in view of the admitted position that the State did not question the right, title and interest of the petitioner over those properties, it appears that this Court has recorded that the property admittedly belongs to the petitioner whereas in the present case it is disputed by the State that the property in question had been transferred under the aforesaid sale deed. The State has not questioned authenticity of the sale deed but it has raised an issue that the immovable property in question was not transferred through the aforesaid sale deed (Annesure-1) as there is no description in the concerned instrument at Serial no.11 of Schedule A of the sale deed to that effect. The State has not questioned authenticity of the sale deed but it has raised an issue that the immovable property in question was not transferred through the aforesaid sale deed (Annesure-1) as there is no description in the concerned instrument at Serial no.11 of Schedule A of the sale deed to that effect. Learned counsel appearing for the State has submitted that the land and the building stood recorded in the cadastral survey Katihan as ‘Kaishre Hind House and Sahan’ in possession of ‘Sharab Khana’ and the same had remained in control of the Excise Department of the State Government all along which would be clear from Annexure-D series which are the documents showing the possession of the respondents and granting exclusive privilege of manufacturing and supplying of country liquor to certain persons time to time. Learned counsel has also drawn attention of this Court towards constitutional provision under Article 294 A of the Constitution of India to point out that lands and property vested in his/her majesty of dominion of India before promulgation of Constitution of India were recorded as ‘Keshrehind land’. After coming of the Constitution, the same is to be treated either belonging to the Central Government or the State Government depending on the possession and usages. It is also pointed out from the sale deed that it does not appear that the land and building appertaining to Khata No.192/486 (New), Plot No.188/166-167 (New), standing over the area 31 decimals of land has been transferred in favour of the petitioner. 10. Therefore, upon appreciation of records and the rival contention, it has to be seen as to whether the some right or title had actually flown in favour of the petitioner from instrument which has been appended as Annexure-1 which forms foundation of its case. From perusal of the sale deed in question (Annexure-1), it appears that the number of assets belonging to the Manpur Distillery and its warehouses had been transferred in favour of the petitioner vide sale deed dated 31.08.1954 after auction sale under the order dated 22.06.1954 the civil court for a consideration of Rs.1,99,500/-. The details of the transferred property stand described in Schedule A. As Serial No. 11 thereof, the sold property stands described as under :– “(11) Liquor Warehouse at Aurangabad, District Gaya. Pucca well, plants, machineries furniture, fixture and other articles appertaining to Aurangabad Liquor Warehouse.” 11. The details of the transferred property stand described in Schedule A. As Serial No. 11 thereof, the sold property stands described as under :– “(11) Liquor Warehouse at Aurangabad, District Gaya. Pucca well, plants, machineries furniture, fixture and other articles appertaining to Aurangabad Liquor Warehouse.” 11. From the aforesaid description it appears that the pucca well, plants, machineries, furnitures, fixtures and other articles appertaining to Aurangabad Liquor Warehouse were transferred, however, there is no description that the land in question and building standing thereupon was also been transferred whereas just before that at Serial no.10, while describing the transfer of the properties of liquor warehouse, Jehanabad, Gaya, it is clearly stated that quarters for warehouse officer, peon and kitchen, pucca well and land on which the above buildings stand apart from the movable property, are also being sold. Tauji number and thana numbers etc. have also been rendered. Therefore, in my considered opinion, the land and building, prima facie, does not appear to have been transferred. However, since it has been contended by the petitioner that the land and building was also transferred and the petitioner had been given possession thereof, that would have to be established by leading evidence. Such disputed issues cannot be considered and decided by this Court in its writ jurisdiction under Article 226 of the Constitution of India specially when the petitioner has not come up with the case that, after the transaction, its name was mutated in the revenue records or any jamabandi was opened in its name and it had started paying rent to the State Government. The documents that have now been brought on record showing correction of the same revisional survey/municipal survey records would not be beneficial for the petitioner at this stage as, apart from the fact that the concerned order has been passed and the corrections have been made in the year 2010 during the pendency of this writ application, upon own showing of the petitioner, in view of the decision of the Full Bench of this Court rendered in Nand Kumar Rai (supra), such entry would neither create nor extinguish right, title and interest. It is true that a third party purchaser, being a stranger to the dispute, would have to be kept at higher pedestal than the judgment debtor and, after confirmation of sale deed, even if the decree is set aside, such purchaser has to be protected but in the case in hand, when there is no concrete evidence, as has been discussed above, that the petitioner had acquired the right, title and interest upon the concerned land and the building under the instrument which has been appended as Annexure-1, it would be very difficult to direct the State authorities to vacate the premises as the same would require a decree by a competent court after appreciation of evidence led by the parties regarding the title and continuous possession. 12. As a result, this writ application is dismissed. 13. However, it would be open for the petitioner to approach the competent forum regarding the redressal of dispute as I have held that this Court would not be a proper forum for resolving such disputed issues. If such step is taken by the petitioner then it is made clear that such forum or Court would decide the matter on its own merit and in accordance with law without being prejudiced by the observations made and findings recorded by this Court.