AYODHYA SAH Vs. JOINT DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) The writ jurisdiction of this Court has been invoked for issuance of a writ of certioari for quashing the order Dt. 13-8-1984/17-8-1984 passed by the Joint Director of Consolidation Bihar, respondent No. 1, in Consolidation Revision Case No. 19/1984 whereby he dismissed the revision application Under S. 35 of the Bihar Consolidation of Holding and Prevention of Fragmentation Act, 1956 (thereafter referred to as the Act) and also for quashing the order dt. 19-12-1983 passed by the Assistant Director of Consolidation, respondent No. 2, in Consolidation Appeal No. 101/1983 whereby he set aside the order of the consolidation officer, respondent No. 3 dt. 27-8-1983 in case No. 60/1983 by which he had rejected the objection of respondents Nos. 1 and 5 under S. 10B of the Act. The proceedings in the Consolidation courts relate to lands of Khata Nos. 421 and 422 in village Kothia P.S. Tajpur District Samastipur.

(2.) Briefly the facts; Raj Narayan Giri was admittedly the owner of the lands of Khata Nos. 421 and 422 and it is not disputed that he died in 1969 leaving behind his wife Kalavati Devi (respondent No. 5) and three sons Ram Udgar Giri, Ram Pukar Giri and Ram Kumar Giri (respondent No. 4). Ram Udgar and Ram Pukar were not parties in the aforesaid consolidation proceedings and as such they are not also parties in this application. The case of the two petitioners, who are brothers, is that after the death of the father, the eldest son Ram Udgar became the Karta and on 16-2-1972 Ram Udgar, acting for self and guardian of his minor brother Ram Kumar Giri, and Ram Pukar Giri executed three registered sale deeds bearing Nos. 3096 and 3093 and 3099 in favour of the petitioners in respect of 0.37 acres of land of R.S. plot Nos. 153 and 155 appertaining to khata No. 422 for consideration and put the vendees in possession. Later on, Ram Udgar separated from his two brothers but Ram Pukar and Ram Kumar remained joint with each other, and on 30-6-1975 Ram Pukar, acting as Karta of the family fur self and as guardian of his minor brother Ram Kumar, executed a registered sale deed in respect of 11 kathas 8 dhurs of R.S. plot Nos. 30 and 31 appertaining to khata No. 421 for a consideration of Rs. 9,000.00 in favour of the petitioners and put the vendees in possession. The remaining area of 5 khatas and 14 dhurs of plot Nos. 30 and 31 was also sold by Ram Pukar acting for self and as guardian of Ram Kumar by two registered sale deeds dt. 6-10-1975 in favour of the petitioners and the vendees were put in possession. Thus the petitioners came in possession as owners of the entire area of plot Nos. 30 and 31 and plot Nos. 153 and 155 of Khata Nos. 421 and 422. Their further case is that in course of the consolidation proceedings, the petitioners filed a petition under S. 10(2) of the Act on 10-9-1978 before the consolidation officer for recording their names in respect of the purchased lands of khata Nos. 421 and 422 as well as also in respect of other lands purchased from other parties and this was numbered as objection case No. 100/1978 and after the enquiry and considering the relevant facts the consolidation officer allowed the objection of the petitioners by order dt. 12-9-1978 and directed that the register be prepared in the name of the petitioners in respect of the lands which they have purchased. The petitioners' vendors who had sold the lands under the various sale deeds as well as Ram Kumar (respondent No. 4 here) were parties in case No. 100/1978 but none of them filed any appeal or revision against the order dt. 12-91978 of the consolidation officer and thus this order became final. However, after about five years in 1983 Ram Kumar (respondent No. 4) along with Ram Pukar filed an application under S. 10(B) of the Act against these petitioners praying for correction of the area of survey plot Nos. 30 and 31 and this was numbered as objection case No. 41/83. In the said application it was admitted that. 75 acres of plot Nos. 30 and 31 had been sold to the petitioners but it was said that by mistake 0.77 acres had been recorded in the consolidation register and hence the area be corrected. The consolidation officer, after holding due legal enquiry and after considering the relevant facts, by order dt. 18-5-83 dismissed objection case No. 41/83 thereby rejecting the prayer of Ram Pukar and Ram Kumar for correction of the area of plot Nos. 30 and 31. This order also became final as no appeal or revision was filed against the same.

(3.) The fact that the first application under S. 10(B) of the Act, filed by Ram Pukar and Ram Kumar which gave rise to case No. 41 of 1983, was dismissed is not disputed, and admittedly no appeal and revision was filed against this order. After this order of dismissal Ram Kumar Giri along with his mother Kalawati Devi filed another application under S. 10(B) of the Act which was numbered as case No. 60 of 1983. In this application they put forward the plea that as Kalawati was the wife and Ram Kumar was one of the three sons of Raj Narayan Giri, each of them was entitled to 1/4th share in the properties of deceased Raj Narayan Giri and Ram Kumar had been living under the guardianship of his mother and as such 1/2 share of Kalawati and Ram Kumar could not have been disposed of by Ram Udgar Giri and Ram Kumar through the sale deeds executed by them in favour of the petitioners. On the basis of this plea prayer was made to correct the entry in the register in which the names of the petitioners on the basis of the sale deeds had been recorded. The consolidation officer by his order dt. 27-8-1983 dismissed the second petition of objection under S. 10(B) observing that this plea should have been put forward in the proceeding under S. 10(2) of the Act which had been registered as case No. 100/78 and further if there was any grievance against the order passed in the aforesaid case an appeal could have been preferred against the same. The consolidation officer, held that this petition under S. 10(B) of the Act was not maintainable. Kalawati and Ram Kumar thereafter filed an appeal (appeal No. 101/83) which was heard by the Assistant Director of Consolidation and he by his order dated 19-12-83 allowed the appeal on the ground that since at the time sale deeds were executed in favour of the petitioners Ram Pukar was minor, his brothers could not have acted as his guardian since his mother Kalawati was alive and the shares of Ram Kumar as also of Kalawati could not have been transferred by the sale deeds in question. The appellate Court further observed that since Kalawati Devi and Ram Kumar were not parties in case No. 100/83 they could not be bound by the order passed therein. The appellate Court however, did not make any mention of the orders passed in case No. 41 of 1983 under S. 10(B) of the Act which had been filed by Ram Pukar and Ram Kumar. Further, it did not also consider whether a second application under S. 10(B) could be legally maintainable. Against the order of the Assistant Director Consolidation these petitioners preferred revision before the Joint Director which was numbered as revision case No. 19/84 raising inter alia the question of maintainability of the second application under S.10(B) of the Act and in course of hearing they filed several documents including the sale deeds of the lands in question as well as several other sale deeds executed by Ram Udgar and Ram Pukar for self and guardian of their minor brother Ram Kumar Giri in favour of several persons other than the petitioners and also the orders passed in case No. 100/78 and case No. 60/83. They also submitted a written argument (Annexure 7) before the Revisional Court. The Joint Director however, upheld the order of the Assistant Director on the same reasoning that Ram Kumar and Kalawati together were entitled to 1/2 share of the joint family property and in the presence of the mother the elder brother could not have acted as guardian of Ram Kumar and dispose of his share in the property. He also observed in his order that at the time the objection cases were heard Kalawati and Ram Kumar did not have any proof in their possession nor were they heard in the competent Court. It also observed that when Ram Kumar attained majority and when he and his natural guardian Kalawati came to know about the fraud committed in disposing of their lands then they filed the objection under S. 10(B) of the Act. However, like the appellate authority the revisional Court also failed to consider that earlier application under S. 10(B) had been filed by Ram Kumar along with his brother Ram Pukar and the same had been dismissed and as to whether in such a situation the second application under S. 10(B) was maintainable.