ORDER 1. Heard learned counsel for the petitioner, the State, the respondent nos. 3 and 4 as well as respondent No. 5. 2. The petitioner seeks quashing of the order dated 31.07.2007 passed in Encroachment Case No. 295 of 2007-08, whereby and whereunder the respondent no. 4, the City Commissioner, Ara Municipal Corporation, Ara, Bhojpur, has passed an order directing the petitioner to remove encroachment from an area of 0.0015 hectare of the municipal plot no. 530 that has been found to have been encroached by him. 3. As per the submission made on behalf of the petitioner at the time of hearing, chief issue for determination would be as to whether a draft record of right prepared under section 8 of the Bihar and Orissa Municipal Survey Act, 1920 would be admissible in evidence and whether the respondent no. 4 was correct in placing reliance upon such entries for coming to a conclusion that the petitioner has encroached upon a Municipal Street ? 4. Case, in brief, of the petitioner as per the averments made in the writ petition is that he has purchased a house from one Ram Krishna Prasad and others in the year 2002 through a registered sale deed. The purchased property is a room and sahan standing over 7 Dhurs and 10 Dhurkees of the old khesra nos. 1038 and 1039 corresponding to old municipal khesra nos. 3713 and 3714 and new municipal Khesra nos. 529 and 531. Respondent no. 5 had filed Encroachment Case No. 295 of 2007-08 making a complaint against the petitioner to have encroached upon the municipal street existing between his house and the house of the petitioner. Show cause notice was issued and the petitioner filed a reply thereof stating that the earlier municipal records do not show existence of any municipal street and the land of municipal survey plot nos. 3713 and 3714 was the private land of his vendor that has been transferred to the petitioner. A stand has been taken in the writ petition that vendor of the petitioner has left few feet of land in the eastern side of his house so that the sweeper could come to clean the service latrine that was closed in the year 1990 and a septic tank was constructed in its place. Thus, it was contended before the respondent no.4 that the revisional survey entry is incorrect to that extent. Thus, it was contended before the respondent no.4 that the revisional survey entry is incorrect to that extent. 5. However, the respondent no. 4, after appreciation of evidence on record including the sale deed dated 25.07.2002 whereby the petitioner has purchased the property aforesaid, has recorded a finding that the sale deed appears to have been executed with regard to new khata no. 271/30, old khesra no. 103/3713 and new plot nos. 529 and 531 of an area 7 dhurs and 10 dhurki and in its boundary a municipal street has been shown in the north whereas private rasta and street have been shown in the southern, eastern and western side. Respondent no. 4 has come to the conclusion that from the sale deed it does not appear that plot no. 530, which is a municipal street as per the draft publication (not final) of the municipal records made under section 9 of the Bihar and Orissa Municipal Act, 1922 of an area of .0015 hectare, has been included in the sale deed and it has simply been stated that there is existence of private street in the eastern boundary of the plot under transfer. It was submitted on behalf of the petitioner that by the mistake of the deed writer new plot no. 530 could not be included. However, respondent no. 4 has come to the conclusion that the petitioner has neither taken any step for rectification of such mistake of the sale deed nor has he filed any objection to the entry made in the draft municipal survey record of right (not final) regarding the relevant entry. Thus, the case was allowed and the petitioner, after having been declared as encroacher of the aforesaid 0.0015 hectare land of municipal khesra no. 530, has been directed to remove the encroachment. Surprisingly, the petitioner has not brought on record, a copy of the concerned sale deed, that is basis of his claim, to show the illegality committed by the respondent no. 4 while passing the impugned order. That apart, a copy of the concerned draft publication showing the entries appertaining to the plot no. 530 has also not been appended to the writ petition by him. However, certified copies of both the documents have been produced at the time of hearing by the learned counsel for respondent no. 4 while passing the impugned order. That apart, a copy of the concerned draft publication showing the entries appertaining to the plot no. 530 has also not been appended to the writ petition by him. However, certified copies of both the documents have been produced at the time of hearing by the learned counsel for respondent no. 5 for perusal of this Court and learned counsel for the petitioner has also been given the benefit of perusal of the same. 6. Learned counsel for the petitioner has submitted that the draft publication of the municipal survey record admittedly not having been finally published would not be a public document and thus, the same would not be admissible in evidence. He has placed strong reliance upon a decision rendered by a learned Single Judge of this Court in Ram Nagina Singh v. Ravindra Prasad @ Laddo Singh and others, 2001(4) Patna Law Journal Reports, 228. It has been urged that as per the aforesaid decision a draft prepared during the process of making a khatian or publishing the same, in no way, could be construed as a public document. The decision of a learned Single Judge of Calcutta High Court in M/s Roy & Co. and another vs. Sm. Nani Bala Dey and others, AIR 1979 Calcutta, 50, holding that under section 32 of the Evidence Act, the entries made in the draft records of right may be made admissible, has been held to be per incuriam and not a binding precedent. It has finally been held that since the entry in the draft khatian or draft records of right is only for the purpose of preliminary preparation for publication of records of right and as it has not got finality, it would not be admissible, thus, the question of proving the same by way of primary or secondary evidence would not arise at all. 7. It has been urged on behalf of the petitioner that both provisions i.e, section 103B of the Bihar Tenancy Act, 1885 as well as section 11 of the Bihar and Orissa Municipal Survey Act, 1920 (hereinafter referred to be as “the Act”) expresses presumption regarding correctness of record of rights that has been finally published. 7. It has been urged on behalf of the petitioner that both provisions i.e, section 103B of the Bihar Tenancy Act, 1885 as well as section 11 of the Bihar and Orissa Municipal Survey Act, 1920 (hereinafter referred to be as “the Act”) expresses presumption regarding correctness of record of rights that has been finally published. Section 11 of the Act provides that the local Government may by notification declare that every entry in the record finally published under section 10 shall be evidence of the matters referred to in such entry, and in any suit or proceeding to which the Commissioner is a party, shall be presumed to be correct until it is proved by evidence to be incorrect. Thus, it is submitted that, in above view of the above, the law laid down in Ram Nagina Singh (supra) would, in principle, be equally applicable in this case also. 8. However, this Court is not in agreement with the aforesaid submission that the entries made in the draft record of right would not be admissible in evidence at all. In the certified copy of the draft publication (not final) of the municipal survey records, the entry regarding plot no. 530 has been shown as follows: New Old plot New. Old khata Name of the Nature of Area Plot No. khata No. landlord land No. No. 530 1038(Part) 271 1053 Municipality Street .0015 1030(Part) Ara hectare & 3713(Part) 3714(Part) 9. It is apparent that the entry is an old one. Though none of the parties has disclosed the date of draft publication, however, in view of the fact that the new plot numbers have been shown in the concerned sale deed executed in the year 2002 in favour of the petitioner, it can safely be construed that the publication is prior to the year 2002 and even after passage of more than nine years, admittedly, the entries have not been altered or modified. 10. True it is that the aforesaid entry would not bear presumption as per section 11 of the Act without any final publication, however, there is a presumption of correctness of official act or duty having been regularly performed under section 114, illustration (e) of the Evidence Act. For better appreciation the relevant provision of the Evidence Act is reproduced as under under: “Section 114. For better appreciation the relevant provision of the Evidence Act is reproduced as under under: “Section 114. Court may presume existence of certain facts.— The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume — xx xx xx (e) The judicial and official acts have been regularly performed; xx xx xx .” 11. Our own Division Bench in Chand Ray v. Bhagwati Charan Goswami, AIR 1924 Patna, 248, has laid down in the clearest term that the presumption arising out from even such survey entry that has not reached the stage of final publication would not be totally inadmissible as it would be perfectly legitimate to put in evidence the proceedings which led up to the finally published record. The aforesaid decision rendered by our Division Bench has been followed by a learned single Judge of this Court in Rasdhari Lal and others v. Nand Lal Mahto, AIR 1933 Patna, 468. After placing reliance upon the decision in in Chand Ray(supra) it has been held therein that even the papers of survey which has not reached the stage of final publication are not altogether inadmissible in evidence. It has further been held that no doubt the presumption of correctness cannot apply to such paper unless final publication is made but the special presumption of correctness created by section 103B of the Bengal Tenancy Act would be one thing while the presumption arising from circumstance that the official duties are taken to have regularly performed would be another, clearly indicating towards the provision as contained in section 114(e) of the Evidence Act. This apart, there is a presumption of continuous state of affairs of both backward and forward. The Apex Court in Ambika Prasad Thakur and others v. Ram Ekbal Rai (dead) by his legal representatives and others, reported in AIR 1966 Supreme Court, 605 has held after noticing the provisions under section 114 of the Evidence Act that if a thing or state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn. 12. 12. From perusal of the decision in Ram Nagina Singh and others (supra) there is no doubt in my mind that earlier decisions rendered by the Division Bench in Chand Ray(supra) and the learned single Judge in Rasdhari Lal and others(supra), as discussed above, have not been noticed and considered by the learned Single Judge. That apart, the provision as contained in section 114 of the Evidence Act also does not appear to have been noticed or discussed. It goes without saying that a decision rendered by a Division Bench or even a co-equal Bench would have a binding precedent upon a learned single Judge and, thus, the aforesaid decision appears to me per incuriam of the earlier decisions as indicated above. The Apex Court, in Jaisri Sahu v. Rajdewan Dubey and others, AIR 1962 Supreme Court, 83, has observed that in case of conflicting decision the practice of Patna High Court appears to be that the earlier decision has to be followed and not the later one. The meaning of per incuriam has also been explained in the aforesaid decision after placing reliance upon the relevant passage from the Halsbury’s Laws of England. The relevant passage has been quoted in the aforesaid decision which expresses that the Court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of coordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the Supreme Court. In a recent decision our Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and others, (2011(1) Supreme Court Cases, 694 has examined the issue of per incuriam and, after noticing the relevant passage of the Halsbury’s Laws of England (4th Edition) Vol. 26, has observed in the judgment that a decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of coordinate jurisdiction which covered the case before it. Their Lordships have observed that though the House of Lords in Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718, has observed that “Incuria” literally means “carelessness”. Their Lordships have observed that though the House of Lords in Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718, has observed that “Incuria” literally means “carelessness”. However, in practice per incuriam appears to be per ignoratium and finally upon the analysis of Indian and English Law their Lordships have come to the irresistible conclusion that not only the judgment of a larger strength is binding on a Bench of Judges of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength and anything contrary would be held to be per incuriam. A learned single Judge of this Court in Harbans Singh and others v. Rajpaltan Singh and others, AIR 1975 Patna, 185, has held that the Court is not bound to follow the decision of its own if given per incuriam. 13. Thus, in view of the aforesaid I hold the decision rendered by a learned Single Judge of this Court in Ram Nagina Singh(supra) to be per incuriam and not binding upon me for two reasons: (i) the earlier decisions of the Division Bench in Chand Ray (supra) and that of the learned Single Judge in Rasdhari Lal and others (supra) have not been considered, and (ii) the provisions as contained section 114 of the Evidence Act have not been noticed or considered while coming to a conclusion that a draft publication would not be admissible in evidence at all. 14. Having held so, I would have no difficulty in following the earlier decisions of the Division Bench in Chand Ray (supra) and that of the learned single Judge of this Court in Rasdhari Lal and others (supra) and hold that even the documents of survey, which have not reached the stage of final publication, are not altogether inadmissible in evidence. Though the weight to be attached would be different than that of the finally published records. The presumption of correctness may not apply to such publication until there is final publication but the presumption arising from the circumstance that official duty is taken to have been regularly performed would apply in view of the provisions under section 114(e) of the Evidence Act. Thus, it would be admissible in evidence till there is any modification or alteration or any final publication contrary to the entries made therein. 15. Thus, it would be admissible in evidence till there is any modification or alteration or any final publication contrary to the entries made therein. 15. Coming to the case in hand, it is admitted that in the draft publication there is an entry in regard to plot no. 530 showing it to be a municipal street. Learned counsel for the petitioner has not been able to show from the records that any objection has been made regarding such entry either by the petitioner or his vendor and this aspect has been noticed by the respondent no. 4 while passing the impugned order. In that case, the reliance made by the municipal authority upon the entry made in the draft publication cannot be held to be illegal. 16. That apart, from the perusal of the sale deed also it appears that the petitioner has purchased a room and a sahan standing over new survey plot nos. 529 and 531, however, it does not show that he has purchased the land of plot no. 530 also which he claims to be belonging to his vendor. In the concerned boundary a private gali has been shown in the sale deed. Learned counsel for the petitioner has not been able to demonstrate from the records as to how plot no. 530 belonged to his vendor and why he has not taken any step for rectification of the sale deed if the recitals are incorrect as claimed. Secondly, as mentioned above, he has also not challenged or made any objection with regard to the aforesaid entry made in the draft publication. Apart from the above learned counsel for the petitioner has not even claimed that if the area of the plot no. 530 is not included, petitioners purchased area of 7 dhurs and 10 dhurkis would stand diminished. So far the concerned entry of the year 1923 showing non-existence of any municipal street, as pointed out by the learned counsel for the petitioner, is concerned, that would not be of much significance as no objection has been raised by the vendor of the petitioner to the draft publication under section 9 of the Act. In the sale deed also the new municipal plot numbers as per draft publication have been mentioned that goes to show that the transferor was fully aware regarding the entries and has knowingly and wilfully not included the plot no. In the sale deed also the new municipal plot numbers as per draft publication have been mentioned that goes to show that the transferor was fully aware regarding the entries and has knowingly and wilfully not included the plot no. 530 for transfer. That apart, the Apex Court in Ambika Prasad Thakur and others (supra) has observed that the presumption of continuity of a thing that has been shown to exist weakens with passage of time. Thus, the aforesaid submission would also have to be rejected. 17. Lastly, learned counsel for the petitioner submitted that such disputes can only be resolved in a Civil Court of competent jurisdiction, however, surprisingly, no step has admittedly been taken by the petitioner in this regard. 18. In the aforesaid facts and circumstances, I do not find any illegality having been committed by the municipal authority in passing the impugned order warranting interference of this Court under Article 226 of the Constitution of India. 19. Accordingly, this writ application is dismissed.