Lachmi Mandal vs Mosstt. Thakurwati and Others

U.N. Sinha and B.N. Jha, JJ.—This application has been filed by the petitioner under Articles 226 and 227 of the Constitution of India, praying that the orders incorporated in Annexures A and B be quashed. The original order was passed on the 14th April, 1964 (Annexure B) by the land Restoration Officer, Supaul, in Case No. 462 of 1963/64 in a proceeding u/s 3 of the Kosi Area (Restoration of lands to Raiyats) Act, 1951 (Bihar Act 30 of 1951). The appellate order (Annexure A) was passed on the 24th July, 1967, by the Additional Collector, Saharsa, dismissing the appeal filed by the petitioner and others.

The relevant facts are as follows : In 1940 a sale had taken place at the instance of Darbhanga Raj, decree holder, of certain properties of some tenants, including the land which is now being claimed by the petitioner as a subsequent transferee. The sale was confirmed and delivery of possession had followed in the same year. It is said that the lands purchased by the decree holder were thereafter settled with a number of persons in 1943 and the present petitioner''s father put-chased some land from some of the settlees on the 23rd November, 1962, The present dispute is with respect to 17 kathas 12 dhurs of land claimed by the petitioner. On the 4th December, 1963 an application u/s 3 of Bihar Act 30 of 1951 was filed by respondents-opposite party Nos. 1 and 2 claiming amongst others, restoration of the properties in present dispute as raiyats. Restoration was allowed by the land Restoration Officer on the 14th April, 1964, on the terms and conditions mentioned in Annexure B. This order has been affirmed on appeal,

Learned Counsel for the petitioner has urged that the Land Restoration Officer or the Additional Collector had no jurisdiction to decide the heirship in the following manner. It is said that certain lands including the disputed land had been recorded in the record of rights in the name of two brothers, Budhu Keot and Sadhu-Keot alias Gosain Keet. Respondents Nos. 1 and 2 claim as the daughter and daughter''s son of Budhu Keot. The two authorities who have considered this matter have held that respondent No. 1 was the daughter of Budhu Keot and respondent No. 2 was her son and in the circumstances, they were entitled to restoration. According to the learned Counsel for the petitioner, the conclusion that these two respondents were the daughter and the daughter''s son of Budhu Keot was without jurisdiction, as the authorities acting under this special Act have no jurisdiction to come to a finding on such a question. We do not think that this contention is valid. According to Section 2 of this Act, the expression "raiyat" had the meaning assigned by the Bihar Tenancy Act and under the Bihar Tenancy Act, a raiyat includes the successor of the original raiyat. In these circumstances, when the parties raised a disputed question of fact, it was open ,to the authorities acting under Bihar Act 30 of 1951 to come to a finding for the purpose of passing an order on an application filed u/s 3. It is not possible to hold that the authorities had no jurisdiction to decide any such question. Secondly, it is urged by learned Counsel for the petitioner that his client had not been given any opportunity to adduce evidence to prove that respondent No. 1 was not the daughter of Budhu Koet. It is argued that the Land Restoration Officer could not have decided this question of daughtership on an affidavit filed on her behalf. We do not think that this contention is also valid. The land Restoration Officer had to resolve the dispute propounded before him on the materials on record, and if the officer-acted on an affidavit in this matter, it cannot be said that he had erred in any manner. Lastly, it is contended by the learned Counsel that u/s 7(2)(d) of Bihar Act 30 of 1951, his client was entitled to the refund of the consideration money, mentioned in his sale deed. This point has not been taken in the writ application in the manner in which it is argued and it is not possible to accede to the contention raised by the learned Counsel for the petitioner and enter into accounting at this stage, to ascertain what should have been the proper amount of Salami which should have been refunded to the petitioner.

In these circumstances, the application fails and it is dismissed, There will, however, be no order for costs.