MARKANDEY SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) ORAL Judgment by Dr. J.N. Bhatt. CJ By this writ petition under Articles 226 and, 227 of the Constitution of India, the petitioners have questioned the legality and validity of the order dated 26.8.1988, passed by the Deputy Director of Consolidation, Rohtas, Sasaram, in Revision No. 3139. of 1987 allowing the revision and setting aside the order passed in appeal.

(2.) THE main controversy in focus relates to immovable property bearing R.S. Khata No. 71, R.S. Plot No. 603 area one decimal which has been carved out of C.S, khata 6, C.S. Plot No. 491, area 10. decimals of village Lilwanchh. C.S. Khata No.6 was the ancestral khata coming from the time of common ancestor Bhore Mahto. It contained C.S. Plot No. 491 (area 10 decimals) and C.S. Plot No. 507 (area 15 decimals). In revisional Survey, R.S. Khata No. 71 has been made having an area of 19 decimals. The petitioners claim that C.S. Khata No. 6 had, already, been partitioned by the ancestors of the petitioners and respondent no. 3, Mosafir Singh and ethers. R.S. Khatian of Khata No. 71 has been prepared, jointly, but possession of the parties has been shown in the remarks column of khatiyan according to the actual possession of the parties. R.S. Plot No. 603 has been recorded in the possession of the petitioners. The house of the petitioners is on R.S. Plot Nos. 603 and 606. There is no separate outlet "(Niksar)" for house of Plot No. 603 and its outlet is through house of Plot No. 606. In R.S. Khata No. 71 possession of the parties has been correctly recorded. At the time of partition those who got lesser area in C.S. Khata 6 were compensated with other lands. The petitioners reside with their families in the house situated in R.S. Plot No. 603 constructed by the ancestors of the petitioners.

(3.) THE respondent no. 3, herein, has contended that OS. Khata No. 6 was ancestral land of the parties and other co -sharers. Therefore, he claims his right in R.S. Plot No. 603 measuring about one decimal of land. It is his case that he raised the house and he has been residing therein for last four years. In revisional survey, parcha was prepared in his name in Plot No. 603. Due to mistake by the survey authorities, the record of rights has been prepared in the name of Ramrup and Ramswarup. Therefore, respondent no. 3 filed an application for correction of the same, under Sec.106 of the Bihar Tenancy Act but, in the meantime, as Consolidation proceedings under the provisions of the Bihar Consolidaiton of Holdings & Prevention of Fragmentation Act, 1956 ("Act of 1956"), had started, the case under the Bihar Tenancy Act abated. Thereafter, respondent no. 3, Musafir Singh filed a consolidation case being Consolidaiton Case no.1 of 1986 -87 with a request to include Plot No. 603 in his khata. The Consolidation Officer, Dinara, allowed the case by his order, dated 26.11.1986.