RAGHU MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioners have challenged the order passed by Joint Director, Consolidation dated 4.8.87 in Revision case no. 41/85 and appellate order dated 2.1.85 in Appeal no. 78/84. By the impugned appellate and revisional orders, the right and title in respect to land in dispute has been decided in favour of contesting 5th respondent, Smt. Barati Devi.

(2.) IN this case, the dispute relates to right and title in respect to land appertaining to khata nos. 169 and 170 of village Ajamgarh, P.S. Amas, District -Gaya. The petitioners are descendants of one Hira Mahto of whom the genealogical table is shown hereunder : Hira Mahto (Died) r -j. Ramdhan Deo Narayan Nem Mahto (Died) Mahto (Died) Narayan J J Mahto (Died) Raghu Mahto Mugeshwar j Mahto (Died) ' r -1 Hari Autar Sakdeo Mahto Mahto Hira Mahto died leaving behind three sons, namely, Ramdhan Mahto, Deo Narayan Mahto and Nem Narayan Mahto. The first petitioner -Raghu Mahto is son of late Ramdhan Mahto, second petitioner -Hari Autar Mahto and third petitioner -Sahdeo Mahto are sons of late Mungeswar Mahto. According to the petitioners, Nem Narayan Mahto died is -sueless in the year 1935 leaving behind nis brothers as only successors who succeeded to his property by way of survivorship. On the other hand, according to 5th respondent, she is legally married wife of Nem Narayan Mahto and succeeded the interest on the property left over by Nem Narayan Mahto. After revisional survey, the records of right was prepared in respect to disputed khatas in the name of Raghu Mahto (first petitioner) one share; Hari Autar Mahto and Sahdeo Mahto (second and third, petitioners) jointly one share and 5th respondent -Smt. Barati Devi one share. In the year 1974, 5th respondent -Barati Devi preferred a partition suit no. 45/74 in the court of Munsif -lll, Gaya for partition of her 1/3rd share in respect to property of the family, including the disputed land. The suit was decreed ex parte in her favour on 18.2.76 against which Title Appeal no. 36/77 was preferred by petitioners. Said Title Appeal was heard where in after by judgment and decree dated 17.10.77, the learned Subordinate Judge, Gaya set aside the ex parte decree passed by trial court. Thereafter the 5th respondent preferred Second Appeal no. 66/78 before this Court against the said Judgment and decree dated 17.10.77 passed in Title Appeal no. 36/77. In the meantime, the consolidation operation started in the area. Notification under section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Consolidation Act) with respect to Arnas Anchal was issued vide Memo no. 616 dated 2.5.78. The petitioners then preferred an objection under section 10 (2) of the Consolidation Act in the year 1979, which was registered as case no. 294/66 of 1979 -80. The Consolidation officer after hearing the parties, allowed the objection in favour of petitioners vide order dated 29.8.84 on the basis of judgment and decree passed in title appeal aforesaid. It was ordered to delete the name of 5th respondent and thereby allowed the case of petitioners in respect to land in dispute. The 5th respondent against the said order preferred Appeal no. 78/84, wherein, after notice and hearing, the Assistant Director of Consolidation decided the case in favour of 5th respondent vide order dated 22.1.85 and thereby set aside the order passed by Consolidation officer. The appellate authority discarded the judgment and decree passed in suit & title appeal on presumption that the said judgment and decree abated in terms with section 4 -C of the Consolidation Act. Thereafter the revision case no. 41/85 preferred by petitioners, was also dismissed vide order dated 4.8.87. It appears that as the appellate authority under the Consolidation Act decided the appeal in favour of 5th respondent on 22.1.85, the second appeal no. 66/78 preferred by 5th respondent was not persuaded resulting dismissal for non -prosecution on 22.4.85. However, as the appellate and revisional orders afiected the right and interest of petitioners, they challenged the same in the present writ petition.

(3.) AFTER perusal of the different orders passed by the consolidation authorities, judgment and decree passed in Title appeal and the order passed by this Court in second appeal, the following facts emerge : The learned appellate court in Title Appeal no. 36/77 merely framed two issues as to whether the Title Partition Suit no. 45/74 had abated due to death of defendent no. 4, Karu Mahto before judgment and decree passed by learned Mun -sif and whether the said title appeal was maintainable. The appellate court decided both the issues in affirmative, in favour of appellant (petitioners herein). The appellate court held that the original partition suit no. 45/74 had abated prior to the judgment and decree passed in the said partition suit. The appellate court had not given any finding in respect to the claim and counter claim as made by the parties in the present case. The main issue whether the 5th respondent is widow of Nem Narayan Mahto and thereby whether she was entitled for 1 /3rd share, was neither framed, nor decided in the title appeal aforesaid. This Court also gave no finding in second appeal, as the same was dismissed for default. Thereby, it is clear that the judgment and decree passed in the Partition Suit no. 45/74 abated and no finding given either by first appellate court or by second appellate court in respect to main issue aforesaid as involved in the present case.