ANURAGIA DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioners are aggrieved by the order of the Deputy Director of Consolidation dated 28.7.1990 by which he has set aside the order passed by the Assistant Consolidation Officer on 11.12.1979. From the pleadings in the writ application and the counter affidavit filed on behalf of heirs of Respondent Nos. 5 to 11 it is apparent that Plot Nos. 2148 and 2152 in Village-Majrohi, was allotted to the share of Hriday Rai ancestors of the Respondents in Title Suit No. 40 of 1955 in the year 1966. In the said Title Suit, the Petitioners' vendor Lakhpatia Devi alongwith her minor children were also parties. A compromise decree was filed in the suit. According to the Petitioners the suit was decided ex-parte against Lakhpatia Devi and she was not signatory on the compromise decree, whereas according to the Respondents Lakhpatia Devi had signed on the compromise decree on her own behalf and on behalf of her minor children. The claim of the Respondents is that Lakhpatia Devi did not have any right to sell the lands in question during the pendency of the suit and the principles of lis pendens would apply to the sale by Lakhpatia Devi.

(2.) The dispute arose when the Petitioners-vendors from Lakhpatia Devi filed an application for entering her name in the village records before the Assistant Consolidation Officer vide Case No. 342 of 1974. The Assistant Consolidation Officer entered the name of the vendees of the sale deed purportedly after issuing notice to the concerned parties. The Respondents filed an appeal which was dismissed on 28.7.1990 on the ground that it was time barred and not maintainable under Section 10(3) of the Consolidation Act. Against the order of the Deputy Director, Consolidation the Respondents filed an application under Section 35 of the Consolidation Act before the Joint Director, Consolidation, Muzaffarpur. The Joint Director after considering the compromise decree and recording that Lakhpatia Devi had signed on the compromise petition, which was part of the decree set aside the order of the Assistant Consolidation Officer. The signature/thumb impression of Lakhpatia Devi, if any, is hotly disputed by the Petitioners.

(3.) Learned Counsel for the Petitioners submits that the Joint Director, Consolidation could not have interfered with the order of the Deputy Director for the reason that the Respondents had not filed a limitation petition at the time of filing an appeal nor had they given an explanation for the delay before the Joint Director, Consolidation. For the purpose of supporting this contention aforesaid, learned Counsel for the Petitioners relies on two judgments of this Court in the case of Anant Sah and Ors. v. The State of Bihar and Ors.,1997 2 PLJR 396 and the judgment passed in the case of Dudheshwar Giri and Ors. v. The State of Bihar and Ors.,1998 3 PLJR 86. In both the aforesaid cases, the Court while dealing with the issues as to whether the Joint Director could have interfered with the order passed by the Joint Director/Director, Consolidation under Section 35 of the Consolidation Act, held that the Director has to consider whether the order impugned is illegal or improper and take into account the delay in filing the application under Section 35 of the Consolidation Act. Both the courts have held that an order passed without taking into account, this aspect of the matter has to be set aside and remanded back on this issue alone.