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2013 DIGILAW 410 (PAT)

Devendra Singh v. State of Bihar

2013-03-21

SHEEMA ALI KHAN

body2013
ORDER The only issue to be decided in this case is whether in the facts of this case, the Commissioner could have cancelled the jamabandi running in the name of the father of petitioner no. 1 running since 1956-57 with respect to khata no. 17, plot no. 361, total area being 2 aces 91 decimals situated at mouza Dhelwa, Police Station Ram Krishna Nagar, district Patna and whether the question of title could be decided by the Commissioner under the Bihar Land Disputes Resolution Act, 2010? 2. The genealogical table of the petitioner’s family is essential for the purpose of showing their interest in their land. Arag Gope Chaman Gope Raghu Nath Gope Ramawtar Gope @ Raghuni Gope Ram Phal wife Most. Marni Devi Lalpari married (died issueless) to Jitan Gope Devan Gope Muneshwar Rai @ Muneshwar Singh married to deceased petitioner no. 2, Janakia Devi Devendra Singh Bijendra Singh (petitioner) Janak Gope Nirpat Gope Sampat Gope Gulab Gope (died issueless) Punma Devi (died issueless) Chandradeep Laxmi Narayan Girja Rai Moti Rai Mofil Rai Rai Rai (Resp. 9) (Resp. 10) (Resp. 11) (Resp. 12) (Resp. 13) 3. The petitioners’ case is that the lands described aforesaid were running in the name of Arag Gope. Arag Gope had three sons; Chaman Gope, Raghu Nath Gope @ Raghuni Gope and Ram Awtar Gope. Ram Phal is the son of Chaman Gope. Ram Phal had four sons, namely, Janak Gope, Nirpat Gope, Sampat Gope and Gulab Gope. All three brothers of Janak Gope died issueless. The sons of Janak Gope are respondents 9 to 13. The petitioners came from the branch of Ram Awtar Gope, who had one daughter Lalpari who was married to Jitan Gope. Jitan Gope had a son, Devan Gope. Muneshwar Rai @ Muneshwar Singh who was the son of Devan Gope was married to the petitioner no. 2 Janakia Devi. The petitioner no. 1 Devendra Singh is the son of Muneshwar Rai and Janakia Devi. Petitioner no. 1 has a brother Bijendra Singh. In the year 1956-57, Jamabandi No. 70 was opened in the name of Janak Rai with respect to 1 acre 45.5 decimals of land. In the year 1958-59, altogether 95 decimals of land appertaining to plot no. 361 was acquired by the State of Bihar under the Land Acquisition Act vide Land Acquisition Case No. 1027 of 1958 for construction of the new Bypass road. In the year 1958-59, altogether 95 decimals of land appertaining to plot no. 361 was acquired by the State of Bihar under the Land Acquisition Act vide Land Acquisition Case No. 1027 of 1958 for construction of the new Bypass road. The petitioners assert that the award was prepared and paid to Janak Rai with respect to 64 decimals of land and to Muneshwar Rai, son of Devan Gope for 31 decimals of land. The petitioner no. 1 also received compensation for removal of mud from his land, which was to the tune of Rs. 672.35 paise, the receipt of which is Annexure-1 and 1/1 of the writ application. Accordingly, the malguzari for the said land after acquisition was reduced by Rs. 2.19 paisa, which is recorded on the back of the said receipt. Janak Gope i.e. the ancestor of the respondents was also awarded a compensation amount of Rs. 1388.09 paise for 64 decimals of land acquired out of the total area of plot no. 361. 4. The father of the respondent Janak Gope did not accept the compensation amount, rather he filed Land Acquisition Case No. 133 of 1963 in the Court of Sub Judge II, Patna for enhancing the amount, which was accordingly enhanced to Rs. 1617.98 paise. The petitioners were also given compensation of Rs. 425/- for cutting the earth of plot no. 361 vide Case No. 2T of 1968-69, whereas Janak Gope was given compensation of Rs. 255/- under Section 11 of the Land Acquisition Act. From the facts aforesaid, it would appear that out of the total area of 1 acre 45.5 decimals of land, which fell in the share of the petitioners (46.56 kathas), out of which 31 decimals i.e. 09.92 kathas of land was acquired, thus the total land left is 36.64 kathas. It has been submitted on behalf of the petitioners that there was an oral partition between petitioner no. 1 and his brother Bijendra Singh with the consent of their mother, petitioner no. 2 (since deceased), and each of them got 18 kathas and 7 dhurs of land. The petitioners subsequently entered into a development agreement with Raman and Kumar Construction Limited for construction of a multi-storied building on the portion of land allotted to him vide the oral partition on 06.07.2010. 2 (since deceased), and each of them got 18 kathas and 7 dhurs of land. The petitioners subsequently entered into a development agreement with Raman and Kumar Construction Limited for construction of a multi-storied building on the portion of land allotted to him vide the oral partition on 06.07.2010. After the commencement of the construction, a proceeding under Section 144 of the Code of Criminal Procedure was initiated by respondent no. 10. The Officer-in-charge had made an enquiry and submitted the report on 19.09.2010. The order of the Sub Divisional Officer dated 09.10.2010 disclosed that he refused to entertain the petition as the dispute was that which portion of the land would be in the share of each of the parties. During the same time, the private respondents also instituted a case under Section 144 of the Code of Criminal Procedure and enquiry was made by the Circle Officer, who submitted his report on 02.10.2010, according to which, the petitioner no. 1 was found in possession of 18 kathas 7 dhurs of land and has supposedly constructed his boundary wall which was being disputed by the private respondents. By order dated 14.02.2011 contained in Annexure-8, the petitioners were restrained from entering their property. Since the effect of the order dated 14.02.2011 was with respect to the entire land, appertaining to jamabandi no. 71, as such, the petitioner no. 1 filed an application under Section 144 (5) of the Code of Criminal Procedure, numbered as Case No. 315(M) 2011 for modifying the order dated 14.02.2011. The Sub Divisional Officer came to the finding that 18 kathas and 7 dhurs of land, the boundary of which is North-Bypass Road, South-part of plot no. 361, East-Bijendra Singh and West-remaining part of plot no. 361 was in the possession of the first party i.e. Devendra Singh, the petitioner no. 1. 5. The case of the private respondents is that plot no. 361 under khata no. 17 measures 2.91 acres is the ancestral property recorded in the name of Marani Devi, widow of Late Raghu Nath Gope. Raghu Nath Gope had a brother Ram Phal, whose father was Chaman Gope. After the death of Raghu Nath Gope, the name of Marani Devi was entered in the survey khatiyan. She was residing with Ram Phal. 17 measures 2.91 acres is the ancestral property recorded in the name of Marani Devi, widow of Late Raghu Nath Gope. Raghu Nath Gope had a brother Ram Phal, whose father was Chaman Gope. After the death of Raghu Nath Gope, the name of Marani Devi was entered in the survey khatiyan. She was residing with Ram Phal. In support of their case, the private respondents have referred to the cess return filed in the year 1928-29 by the Ex-landlord in the name of Marani Devi, who died in jointness with Ram Phal. Ram Phal thereafter became the owner of the lands and subsequently the private respondents came into possession over the lands in question. The respondents further claimed that after the vesting of the Zamindari, in the State of Bihar in the year 1956, Jamabandi No. 38 was created in the name of Janak Gope for an area of 2.91 acres. Out of the 2.91 acres of plot no. 361, the State of Bihar acquired 0.64 acres of land for the New Bypass Road, in which notices were issued to Janak Gope for which he received compensation. 6. The private respondents filed an application dated 17.07.2009 for mutating their names over 2.91 acres of land appertaining to plot no. 361 of Jamabandi No. 70, 460 to 464, numbered as Mutation Case No. 2940/7 of2009-10. On the basis of the facts aforesaid, the petitioners also filed an application for getting their names mutated in place of Muneshwar Rai on Jamabandi No. 71 vide Case No. 1600 of 2007-08. 7. Subsequently, the private respondents have prayed for cancellation of the jamabandi, which was numbered as Jamabandi Cancellation Case No. 32 of 2010-11, which was disposed of on 05.04.2011 by holding that since Jamabandi No. 70 and 71 have been created 40-45 years back, it is not possible that this matter be decided by the Court (meaning the Court of the DCLR) and advised the parties to get their disputes settled by filing a case before the Civil Court of competent jurisdiction. Being aggrieved by the order of the DCLR, the private respondents filed an appeal under the Bihar Land Dispute Resolution Act, numbered as L.D.R. Appeal No. 129 f 2011, which led to the passing of the impugned order in this writ application. 8. Several issues were raised by the parties in order to substantiate their respective cases. Being aggrieved by the order of the DCLR, the private respondents filed an appeal under the Bihar Land Dispute Resolution Act, numbered as L.D.R. Appeal No. 129 f 2011, which led to the passing of the impugned order in this writ application. 8. Several issues were raised by the parties in order to substantiate their respective cases. The DCLR as well as the Commissioner has considered various aspects of this case. I thus refer to each of the issues raised by the parties. DISPUTE WITH RESPECT TO THE GNEALOGICAL TABLE Basically the case of the respondents is that the petitioner does not belong to the same branch of family as the respondents, as such, they have no right over the property in question. Whereas, the petitioner’s case is that he comes from a common branch, there was a partition in which jamabandi no. 70 was allotted to the respondents and jamabandi no. 71 was allotted to the petitioner. 9. The private respondents in this case have challenged the genealogical table produced on behalf of the petitioners to show that they were from the same branch as the private respondents. The dispute arose, as according to the private respondents, Jitan Gope was the son of Ram Awtar Gope and thereafter the line of family stops, whereas according to the petitioners, Jitan Gope was the son-in-law of Ram Awtar who had a son Devan Gope. Devan Gope, son of Muneshwar Rai is the petitioner no. 1 and the husband of petitioner no. 2. 10. Counsel for the petitioners submits that at various stages, the private respondents had filed different genealogical tables. According to the private respondents, the genealogical tables at Annexures-11/1, 11/2, 13, 16 and 18, 21, 21/1, 21/2 and 21/3 are incorrect whereas the genealogical table given in the counter affidavit, which is quoted herein below is the correct genealogical table. 2. 10. Counsel for the petitioners submits that at various stages, the private respondents had filed different genealogical tables. According to the private respondents, the genealogical tables at Annexures-11/1, 11/2, 13, 16 and 18, 21, 21/1, 21/2 and 21/3 are incorrect whereas the genealogical table given in the counter affidavit, which is quoted herein below is the correct genealogical table. Chaman Gope Ram Phal Gope Raghuni Gope @ RaghunathGope = Marani Devi (both died issueless) Gulab Gope Sampat Gope Nirpat Gope Janak Gope (Died issueless) (died issueless) =Pavitri Devi (died) Punwa Somariya Siroria Devi Devi Devi @ Sheo Kueri Devi Chandradeep Girja Mofil Lakshmi Motilal Rai Rai Rai Rai Rai Laxman Rai Sudhir Rai On behalf of the petitioners, on the other hand, it is submitted that different genealogical tables have been filed by the respondents at various stages, which have been produced on behalf of the respondents, both before the DCLR and the Commissioner. These genealogical tables have been annexed as Annexures 21, 21/1, 21/2 and 21/3. The genealogical table at Annexure-21 has been given by the cousin sister of the private respondents Somariya Devi in Title Suit No. 344 of 1986.The genealogical table at Annexure-21/1 has been filed by another cousin sister of the private respondents Punama Devi in Title Partition Suit No. 119 of 1962. The genealogical table at Annexure 21/3 has been given by the private respondents in Title Suit No. 204 of 2011. It would appear from the genealogical table given at Annexure-21/3 that the respondents accept that there was one Jitan Gope, who had a son Devan Gope, to this extent the genealogical table produced by the petitioners and the opposite party tallies. The differences arose in the fact that according to the private respondents, Devan Gope died issueless, whereas according to the petitioners, Devan Gope had a son Muneshwar Rai, the petitioner no. 1 being the son of Muneshwar Rai. 12. This dispute alone is sufficient for this Court to hold that the case cannot be decided under the Bihar Disputes Resolution Act, 2010 as it would require oral evidence, which can only be led before the competent Court i.e. Civil Court, as the case of the parties hinges on the fact whether Devan Gope died issueless or not ! 12. This dispute alone is sufficient for this Court to hold that the case cannot be decided under the Bihar Disputes Resolution Act, 2010 as it would require oral evidence, which can only be led before the competent Court i.e. Civil Court, as the case of the parties hinges on the fact whether Devan Gope died issueless or not ! The DCLR has held that because of the dispute regarding the genealogical table, it could not decide the issue and has referred the matter to be decided by a competent Court, whereas the Commissioner has held that since the judgment in Title Suit No. 192 of 1962 and 344 of 1986 are based upon the genealogical table, hence, there is no scope of the Revenue Court to disbelieve the decree. The plaints of Title Suit No. 119 of 1962 is not available to this Court, and as such, this Court cannot comment upon it, suffice to say that the petitioners were not party in the said title suit. The Commissioner has committed an error of record in holding that the genealogical table filed in Title Suit No. 214 of 2011 was accepted by the Court. The facts reveal that the Title Suit No. 344 of 1986 was filed by Somariya Devi against defendants 7, 8, 9, 10, 11, 12 and 13, apart from others. Somariya Devi was claiming partition of 8 annas share of Schedule-IV properties and recovery of possession over the suit lands. The private respondents (defendants 2 to 6) had filed written statement denying the genealogical table given by Somariya Devi by stating that Somariya Devi was an outsider and was not the daughter of Sampat Gope, rather Sampat Gope had only one daughter, namely Punma Devi. Accordingly, the suit was dismissed. Therefore, the issue in question in this writ application was not before the Civil Court, moreover since the suit was dismissed, it cannot be said that the genealogical table filed by Somariya Devi was a correct one. In any event, both the suits appeared to be confined to the family of Janak Gope. LAND ACQUITION CASES 13. It is argued on behalf of the private respondents that the land of plot no. 301 was acquired during the land acquisition proceedings. In any event, both the suits appeared to be confined to the family of Janak Gope. LAND ACQUITION CASES 13. It is argued on behalf of the private respondents that the land of plot no. 301 was acquired during the land acquisition proceedings. It is further submitted that the petitioners have not produced any document which would show that the notices were issued under Section 5 and 9 of the Land Acquisition Act. Since, both the parties were challenging the documents produced in the Court with respect to the land acquisition cases, this Court called for the original record. 14. A counter affidavit has been filed on behalf of the State of Bihar. It is the specific case that lands from plot no. 361 were acquired for the construction of the new bypass road, which was numbered as Land Acquisition Case No. 1/27of 1958-59. The original file of the acquisition i.e. the record by which the lands were acquired, is not available but from the documents which have been submitted in the Court, it would appear that 0.95 acres of land was acquired from plot no. 361 and that compensation was paid to Muneshwar Rai under Section 12 (2) of the Land Acquisition Act. The original notice has been produced before this Court to support the aforesaid facts. On examining the documents produced by the State of Bihar and comparing it with the documents produced on behalf of the private respondents, it would appear that there has been manipulation in the document at Annexure-D wherein the curve of the 6 of plot no. 361 i.e. ‘6’ has been scratched out by using a very fine blade or the like in the original record. Annexure D is a proceeding under Section 11 of the Land Acquisition Act shows that 0.12 decimals were acquired out of plot no. 301 and that 0.34 decimals of land was acquired from plot no. 361, 0.30 decimals of land was acquired from plot no. 361 and 0.31 decimals of land was acquired from 361, which has been rubbed out and made 301. In this manner, the total acquisition came to 0.95 decimals. The private respondents have tried to show that in fact only 0.64 decimals were acquired out of plot no. 361. It would not be proper for this Court to comment as to who could be responsible for manipulating the original document. In this manner, the total acquisition came to 0.95 decimals. The private respondents have tried to show that in fact only 0.64 decimals were acquired out of plot no. 361. It would not be proper for this Court to comment as to who could be responsible for manipulating the original document. The photocopy produced obviously does not show the manipulation whereas the original clearly indicates that the document has been tampered with. In view of my finding that the original documents have been tampered with, I cannot uphold the submission made on behalf of the private respondents that the land acquisition proceeding would indicate that the petitioners did not have any land in plot no. 361 and as such, the jamabandi created in the year 1958-59 should be cancelled. The Commissioner, Patna on the other hand, has questioned the manner in which the jamabandi no. 71 was created when the lands in question were recorded in the name of Janak Gope in jamabandi no. 38. This question cannot be answered by this Court, as the records show that there is a jamabandi no. 71 running in the name of Muneshwar Rai. Any attempt to answer this question by this Court may prejudice the case of the parties if they move before the appropriate forum in this matter. From the original documents available, it would appear that Muneshwar Rai was paid a sum of Rs. 425/- for cutting the earth in Case No. 2T of 1968-69. OTHER ISSUES 15. Apart from these two issues, several other issues have been raised in this case, documents have been produced by both the parties which include rent receipts, the application filed by the petitioners in the mutation proceedings, the cadastral khatiyan etc. This Court would not like to make any comments regarding the value of these documents as this Court would fall into the same error, as the Commissioner in giving the finding. At the same time, it is also essential to point out certain errors on record made in the order of the Commissioner. The Commissioner has concluded, without there being any material to do so, that the sanction for construction of multi-storied building has been cancelled by the Patna Municipal Corporation. He has further erred in holding that the jamabandi no. 71 has been wrongly created. The Commissioner has concluded, without there being any material to do so, that the sanction for construction of multi-storied building has been cancelled by the Patna Municipal Corporation. He has further erred in holding that the jamabandi no. 71 has been wrongly created. Ultimately, the Commissioner has set aside the order of the DCLR and has restrained the petitioners from interfering with the legitimate right of the private respondents to exercise their rights over an area of 2.27 acre of plot no. 361 ad has cancelled jamabandi nos. 70 and 71, thereby presumably restoring jamabandi no. 38 in the name of Ram Phal Gope. 16. The impugned order was subsequently reviewed suo motu by the Commissioner vide his order dated 04.08.2012. Counsel for the respondents submits that the Commissioner without hearing the private respondents or the petitioners cannot have reviewed his order. The reasons for review are apparent from the order itself which indicates that the District Magistrate, Patna vide his letter no. 1006 dated 13.08.2012 and the Land Acquisition Officer, Patna vide memo no. 1014 dated 14.08.2012 have made a request for modification in the order of appeal in Case No. 129 of 2011. It has been brought to the notice of the Commissioner that the papers in the Land Acquisition Case No. 1/27 of 1958-59 relating to khata no. 17 plot no. 361, the total area being 0.95 acres of land had been acquired by the Government. It has wrongly been mentioned in the previous order that 0.64 acres of land had been acquired and the same has been corrected by the Commissioner. 17. In fact, the order dated 04.08.2012 would substantiate the finding that 0.95 acres of land was acquired out of the total area of plot no. 361 in three blocks i.e. 0.34 acres, 0.30 acres and 0.31 acres, totaling to 0.95 acres. 18. While parting with this judgment, this Court would like to emphasis that the Court has based its decision on the fact that where there are disputed questions of facts regarding title, they cannot be adjudicated under the Bihar Disputes Resolution Act, 2010 and the findings of the Commissioner, Patna are not based on the correct appreciation of facts, rather he does not have the power to hear such matters. 19. 19. The preamble of the Act indicates that the Act will take into account matters relating to record of rights, boundaries, entries in revenue records, unlawful occupation of raiyati lands and forcible dispossession of allotees and settlees of public land, generate problems and cause unnecessary harassment to bonafide allotees and settlees, raiyats or occupants and for this purpose, the Act has come into play to provide a uniform and common forum, procedure and mechanism which would achieve the objectives of effective, efficacious and speedy resolution of disputes. Section 4 of the Act further specifies the subject matter over which the competent authority would have the jurisdiction and authority to hear and adjudicate. Obviously, it does not include setting aside or changing the records of rights or deciding issues relating to the title of the parties, who are stacking their claims on the lands in question. In the present case, the dispute not only relates to changing the records of rights by quashing the jamabandi created in the name of the petitioner some 30 years back, but also relates to a dispute regarding the right of the parties with respect to the inheritance, inasmuch, as the petitioner claims that he has inherited the lands from Devan Gope, whereas the private respondents dispute this fact and claim that Devan Gope did not belong to their family. Therefore, the disputes are not covered and cannot be adjudicated under the Bihar Land Disputes Resolution Act, 2010. 20. Before concluding with this judgment, this Court may mention that while hearing this writ application, a prayer was made that the Court may stay the construction on the lands in question. It was the specific case of the petitioner that they had constructed the boundary wall and had raised the construction up to the plinth level, whereas the private respondents disputed this aspect of the matter. According to the private respondents, the land was ‘parti’, in other words there was no construction on the land and as such, they had prayed that a Pleader Commissioner may be appointed to inspect the land. This Court appointed the State Counsel and Mr. Ganpati Trivedi as Pleader Commissioners to inspect the land with the help of the State Authorities and also directed that the site may be videographed. The Pleader Commissioners have submitted their report. This Court appointed the State Counsel and Mr. Ganpati Trivedi as Pleader Commissioners to inspect the land with the help of the State Authorities and also directed that the site may be videographed. The Pleader Commissioners have submitted their report. The videographs are more or less the same, but there is a difference in the version of both the Pleader Commissioners, suffice to say that this Court found that there was construction on the dispute land inasmuch as the boundary wall had been raised . The videos also showed that the construction had been raised up to the plinth level. I cannot lay much importance to this aspect of the matter considering the discrepancies in the reports except to say that there was some sort of construction over the lands in question. 21. Considering the facts aforesaid, the order of the Commissioner, Patna dated 07.02.2012 passed in L.D.R. Appeal No. 129 of 2011 is hereby quashed. In the result, this writ application is allowed. It would be open for the party aggrieved to move the appropriate forum for redressal of their grievances.