OM PRAKASH SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This writ petition arises from a proceeding under the Bihar Privileged Persons Homestead Tenancy Act, 1947 (hereinafter referred to as 'the Act'), The petitioner is landlord of the lands in question with respe.et to whieh purpha has been granted in favour of respondent No, 3 indrasan Bhar (in short, 'the respondent'), The petitioner seeks quashing of the order by whieh pureha was granted to the respondent,

(2.) The dispute relates to 0,07 Aere out of S Katha 19 Dhurs land of Plot No, 200, Khata No, 104 situate at Village Nawada Mathia within Jalalpur PS of Saran District, The east of the petitioner is that the land in questlon originally belonged to one Gupr! Singh and Shlv Shanker Bharti, On 9-4-71 they sold the land to Manki Devi, The husband of Manki Devi was running wholesale shop business In which respondent No. 3 was an employee. He was permitted to construct a room and live therein. On 27-8-78 Manki Devi sold the land to Laxmina Devi and her sons. Meanwhile Shiv Shanker Bharti had died, and in the circumstances the respondent was retained as houseguard. One room was added to the earlier construction for keeping fodder etc. On 26-8-83 Laxmina and her sons sold the land to the petitioner under different sale deeds. The petitioner called upon the respondent to vacate the room to which he did not pay any heed. The petitioner filed Title Suit No. 102/85 for ejectment of the respondent and delivery of possession of the land/room. The respondent filed written statement claiming to have obtained purcha under the Act. The plaint was accordingly suitably amended. On 25-3-89 the suit was decreed and the impugned purcha was held to be invalid. However on appeal by the respondent the decfee was set aside by the lower appellate Court on 22-12-90. The petitioner preferred Second Appeal which was dismissed by the Court summarily at the stage of hearing under Order 41, Rule 11 CPC on 9-1-92. According to the petitioner a liberty was given to challenge the purcha by a writ petition. From the order dated 9-1-92, however, it appears that the Court did not express any opinion on the prayer. The plea was disposed of with the observation that "he may pursue such remedy as may be permissible to him in law". After the Second Appeal was dismissed the petitioner filed the present writ petition on 6-3-92.

(3.) The writ petition was admitted for hearing by a Division Bench on the point of maintainability of the petition in view of adverse decisions in the suit. Shri Shashi Shekhar Dwivedi, learned Counsel for the petitioner, submitted that rightly or wrongly, the suit having been held to be not maintainable in view of the provisions of Section 18 of the Act which makes the order passed under the Act final and excludes the jurisdiction of the Civil Court for varying or setting aside any order except on the ground of fraud or want of jurisdiction, it is too late for the petitionder to argue that the suit was maintainable but even if the same was not maintainable, the remedy under Articles 226 and 227 of the Constitution of India cannot be denied, for that would amount to denying him the remedy to challenge the impugned order altogether rendering him remedyless. According to the Counsel no person can be said to be without a remedy and therefore, the remedy of suit not being available to the petitioner, the writ petition must be held to be maintainable.