BISHUN LAL BHAIYA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application has been filed by the petitioners for quashing the order dated 14.9.2001 passed by the Superintendent of Survey, Gaya, in Survey Appeal no. 314 of 1990 under section 15(1) of the Bihar and Orissa Municipal Survey Act in respect of the lands of C.S. Khata no. 102, C.S. plot no. 374 in Mauja Ghughari Tar, Mohalla Chand Chaura, P.S. Mufassil, District -Gaya. Further prayer of the petitioners is for restoration of the order dated 12.4.1990 passed by the Assistant Survey Officer, Gaya, in Objection Case nos. 8/88, 11/88 and 14/88.

(2.) THE land in dispute originally beonged to one Kishun Lal Meharwar. He ransferred this land to Abdul Quayum jhrough registered sale deed dated 9.8.1934. Abdul Quayum had taken loan from Surajdeo Narayan who filed Money Suit no. 194/64 in the court of Munsif -l, Gaya, for realisation of the loan amount. This suit was decreed against Md. Quayum for satisfaction of the decretal amount. The disputed plots were put on auction sale which was purchased by the decree -holder Surajdeo Narayan in court auction on 25.11.1966, Through Dakhal Dehani by the court he came in possession of the land on 27.2.1967. While the suit was pending, Md. Quayum apprehending the decree of the Money suit, against him, executed a collusive registered deed of Bai Mokasa on 22.6.1964 in favour of his wife Rokaiya. This deed of Bai Mokasa remained inoperative as Rokaiya died on 16.6.65. As such, Md. Quayum remained the landholder of that property. The decree -holder on 3.10.1970 transferred entire land of C.S. plot no. 374, C.S. khata no. 102 measuring 4.63 decimals to the petitioners and they came in exclusive possession of the same. In the year 1970 Neelam Devi (respondent no. 6) filed a partition suit no. 237 of 1970 before Munsif -l, Gaya, for partition of the disputed land against the venders of the petitioners, in this suit petitioners being the purchasers were also impleaded as defendants. Partition Suit no. 237 of 1970. was dismissed. Against the judgment and decree passed in the Title Suit, respondent no. 6 preferred appeal before the Sub -Judge -I, Gaya, which was dismissed for default. After dismissal of the appeal petitioners applied for mutation of their names on the basis of their purchase and possession. Simultaneously respondent no. 4 Shiv Prasad Singh also applied for mutation of his name with respect to the same disputed property. Petitioners application was allowed by order dated 7.11.1985 considering the document and inspection report in Khanapuri Tanaza no. 18. The rent of the aforesaid land was fixed and on payment of rent, rent receipts were issued in favour of the petitioners. In Municipal Revisional Survey, C.S. plot no. 374 was divided into three plots i.e. R.S. plot nos. 5139, 5146 and 5140. As such, respondents against the order dated 7.11.1985, filed three objection cases under section 9 of the Bihar and Orissa Municipal Survey Act which were numbered as Objection Case nos. 14/ 88, 8/88 and 11/88. All three objection petitions were dismissed by the Assistant Superintendent of Survey by his order dated 12.4.1990 after hearing the parties and considering the report of physical spot verification of the disputed land. Petitioners were found in possession and title was also decided in their favour. Respondents preferred three Revenue Appeals i.e. Appeal nos. 314/90, 312/90 and 321/90 against the orders passed in three objection cases, the Superintendent of Survey, Gaya, being the appellate authority has passed the impugned order dated 14.9.2001 allowing the appeals and directing to enter the names of appellants (respondents) with respect to the disputed land Petitioners have challenged the impugned order on the ground that the Superintendent of Survey, Gaya, while deciding the appeal has adopted a wrong approach as he assumed the power of civil court and tried to decide inter se title in between the parties. This approach was illegal and without jurisdiction considering the scope of Revenue Authority while deciding the cases for mutation.

(3.) THE case of the respondents is that the claim of the petitioners is in the teeth of the said finding of the civil court which is binding on the writ petitioners as the same is directly and substantially in issue. Respondents further case is that the disputed plot was recorded in the name of Kishun Lal Maharwar in the Cadastral Survey Record of Rights (Khatiyan). His wife Puniya Devi inherited this land from her husband and sold it to one Karamat Mian by a registered deed of sale on 7.8.1934. Karamat Mian had purchased this land in the name of his minor son Abdul Quayum. Several years thereafter a Partition Suit no. 18 of 1940 was filed in the family of Karamat Mian in respect of C.S. plot no. 374 and other properties. In this suit Abdul Quayum and Enamul Haque were allotted 4.63 acres of C.S. plot no. 374. Subsequently, in the year 1960 Enamul Haque filed a suit for partition which was registered as Title Suit no. 54 of 1960 and on contest the suit was decreed on 26.11.1960 in which northern half of the said plot having 2.31 1/2 acres were allotted to Abdul Quayum and southern half area having 2.31 1/2 acres were allotted to Enamul Haque. In order to satisfy Dower debt of his wife Bibi Rokaiya, Abdul Quayum executed a registered deed of Bai Mokasa on 22.6.1964 in respect of 2.31 1/2 acres of C.S. plot no. 374 northern part and put her in possession thereof. Bibi Rokaiya died after some time and the plot again inherited by her son and husband, who remained in possession. Abdul Quayum and his son sold entire 2.32 1/2 acres of plot no. 374 northern half by three registered sale deed dated 12.9.1970 in favour of Parmeshwar Mahato, father of respondent nos. 4, 5 and 6. All the three purchasers purchased equal area 77.25 decimals and came in separate possession of the same and have been coming in peaceful possession. Enamul Haque has also sold entire area 2.31 1/2 southern half to Ram Balak Yadav, Ramayan Singh and Chand Govind Sharan. Surajdeo Narayan Lal vendor of the petitioners on 24.6.1964 filed Money Suit against Abdul Quayum for realisation of the land amount which was registered as Money Suit no. 194/64. The suit was decreed on 2.7.1965 ex parte as no summons was served upon the defendant, Abdul Quayum. The decree -holder put the entire 4.63 acres of the said plot no. 374 on auction sale on 2.1.1967. sale certificate was prepared on 6.12.1967 and it was purchased by the decree -holder in satisfaction of the decree. The decree -holder/ auction -purchasers on 3.10.1970 sold the entire auction purchased land in favour of Bishun Lal Bhaiya and Kesho Lal Bhaiya (Petitioners) who purchased only litigation as on the date of filing of money suit no. 194/64 and on the date of auction sale of land judgment -debtor Abdul Quayum had no substituting right, title and interest over the plot no. 374. The auction sale was nullity and the auction purchasers acquired bag of winds only. The vendor of the petitioners had no marketable title to convey to his purchasers. Petitioner never came in possession but any how succeeded in getting the rent of land fixed in their names and getting a few rent receipts in their favour. Petitioners made futile attempts to go over the land due to which proceeding under sections 144 and 145 of the Code of Criminal Procedure were initiated, ultimately they lost and possession of Ram Balak Yadav and others were found on the land who were contesting parties in the proceeding. The writ petitioners thereafter filed Title Suit no. 20. of 1984 against Ram Balak Yadav and others for declaration of title and recovery of possession with respect to the entire 4.63 acres of C.S. plot no. 374 and they lost as the suit was dismissed on contest on 29.2.1988.