MD ZIKRUL ISLAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this writ petition, the petitioner has assailed the validity of the appellate order dated 12.6.2000 (Annexure 6) passed by the District Magistrate, Samastipur (respondent No. 2) in Encroachment Case No. 304/98, whereby and where under the appeal preferred by him (petitioner) against the order dated 22.1.1998 passed by the Circle Officer, Pusa, District Samastipur (respondent No. 3) in Encroachment Case No. 1/96 -97 has been dismissed. He has also assailed the validity of the said order dated 22.1.1998 (Annexure 4) of the Circle Officer wherein it has been held that the petitioner should remove his alleged encroachment over 29 decimals of land of C.S. Plot No. 2661.

(2.) ACCORDING to the case of the petitioner, Plot No. 2661 corresponding to Plot No. 4591 having an area of 29 decimals was recorded in the cadastral survey khatian as Gair Majarua Aan Bakabje Malik. Five mango trees in possession of the Malik, namely, Babu Md. Salim alias Bhola Babu were also mentioned. The said land was settled by the Malik in favour of the petitioner's uncle Kalo Sah sometime before the year 1938, which is evident from the decree of the Civil Court in Rent Suit No. 18 of 1938. Further case of the petitioner is that on the vesting of Zamindari, return was submitted in the name of the wife of the settle, i.e., aunt of the petitioner, who was issued rent receipts by the State Government. After the death of the original settle, his wife sold the said plot along with other lands to the petitioner through a registered sale -deed dated 6.9.1971. Subsequently, the name of the petitioner was mutated in respect of the said land. It is claimed that the petitioner and his predecessor -in -interest had been coming in peaceful possession over the plot in question for over 60 years and, further, that the survey and consolidation were also issued in favour of the petitioner. It is contended that the petitioner planted trees of different kinds over the said land and the nature of land has become raiyati and private.

(3.) AGAINST the said order, the petitioner filed writ petition bearing CWJC No. 11419 of 1998 in this Court in which it was contended that the Anchal Adhikari had passed the order on 22.1.1998 but he had no information about the said order and that he came to know of it only on 24.3.1998. Accordingly, he filed the appeal, which was within time from the date of knowledge. This Court, without going into the merits of the contention, vide order dated 6.1.1999, contained in Annexure 5, quashed the order of the appellate authority dismissing the appeal being time -barred and remitted the matter back to him with a direction to hear the appeal on merit without being prejudiced by the order of this Court. Till the disposal of the appeal, status quo as of that date, was directed to be maintained. Thereafter it appears that the appellate authority heard the appeal afresh and disposed it of by the impugned order dated 12.6.2000, contained in Annexure 6.