Sita Ram Mehta Son of late Bhattu Mahto vs The State of Bihar

This petition under Article 226 of the

Constitution of Indian has been preferred for quashing the

order dated 30.3.2016 passed by the Collector, Lakhisarai

(respondent no.2) in Jamabandi Sudhar Appeal no.

02/2010-11 annexed as annexure 10 to the petition.

The brief fact, which lies to file this writ

petition, is that plot no. 189 area 0.34 acres of village

Faridabad district Lakhisarai was recorded in the name of

Kharo Gope, Palo Gope and Lalo Gope. Recorded tenant

Kharo Gope sold his half share i.e. 0.17 acres towards

west by registered deed of sale dated 7.4.2014 to Champa

@ Chamo. Subsequently, Chamo also sold the aforesaid

land by executing registered sale deed dated 20.12.1948

in favour of Mostt. Laxmi Devi. Similarly, another

recoded tenant, namely, Palo Gope also sold 0.17 acres

eastern part of the said plot by executing registered sale

deed dated 20.12.1948. The aforesaid sale deed dated

20.12.1948 was executed in the name of Raghunath

Mahto of village Sultanpur P.S. Mokama District Patna.

The case of the petitioners is that the above stated 0.17

acres eastern part of the land of plot no. 189 was

purchased by Bhatto Mahto, father of petitioner no.1, in

the name of his brother-in-law, namely, Raghunath

Mahto. The aforesaid transaction was a benami

transaction but, as a matter of fact, Bhatto Mahto came in

possession of the aforesaid purchased land and to

maintain farzi character of the aforesaid transaction

Bhatto Mahto got the name of his brother-in-law mutated

in the laggit of the ex-landlord. Though rent receipts were

issued in the name of Raghunath Mahto but actually, rent

was paid to ex-landlord by the said Bhatto Mahto. Bhatto

Mahto sunk boring over the above stated plot and also got

constructed Bathan etc. Ex-landlord submitted return in

the name of Farzidar Raghunath Mahto and accordingly,

name of Raghunath Mahto was recorded in register II and

rent receipts were issued in the name of Raghunath

Mahto, though actual rent was paid by Bhatto Mahto. The

aforesaid Bhatto Mahto died in the year 1962. The said

Bhatto Mahto was ancestor of the petitioners. However,

after death of Bhatto Mahto the State took earth from the

aforesaid land and for that notice for temporary

acquisition of land was given to petitioner no.1 and

compensation was paid to petitioner no.1.

The said Bhatto Mahto had three sons,

namely, Brahmdev Mahto, father of petitioner nos.2 and

3, petitioner no.1 and one Ganga Prasad. The partition

between sons of Bhatto Mahto took place and plot in

question was partitioned in two equal parts out of which

8? decimal land was allotted to petitioner no.1 towards

eastern side whereas remaining 8? decimal land was

allotted to father of petitioner nos.2 and 3. Ganga Prasad,

third son of Bhatto Mahto did not get any share in the

above stated plot and he was allotted share in another

plot. Memorandum of partition was executed on

18.7.1971. However, Raghunath Mahto died in the year

1972-73 leaving behind his son, namely, Jagdish Mahto,

who happens to be father of respondent no.4. Petitioner

no.1 started paying rent to the State of Bihar in respect of

plot in question in the name of Raghunath Mahto and

even after death of Raghunath Mahto, rent was paid for

some time in the name of Raghunath Mahto but

subsequently, when petitioner no.1 and father of

petitioner nos.2 and 3 felt difficulty in paying rent in the

name of Raghunath Mahto, they filed a petition before

Anchal Adhikari on 25.8.1987 for correction of

Jamabandi.

The aforesaid petition for correction

Jamabandi was forwarded to DCLR with report of Circle

officer and on that basis Jamabandi Sudhar Case no.

01/1988-89 was registered. Jagdish Mahto, the only son

of farzidar Raghunath Mahto, contested the aforesaid

Jamabandi Sudhar Case no. 01/1988-89 by filing written

objection but the learned DCLR vide his order dated

24.10.1989 passed order for correction of jamabandi in

the name of father of petitioner nos.2 and 3.

Subsequently, on the basis of the aforesaid order,

correction slip was issued and rent receipts were issued in

the name of the petitioners. Brahmdev Mahto, father of

petitioner nos.2 and 3, died on 15.3.1994 and after that

petitioner nos.2 and 3 orally partitioned the land in

question in two equal parts and subsequently, petitioner

no.3 sold 4.25 decimal land to Nirmala Devi and Mostt.

Bimla Devi by executing registered sale deed dated

27.7.2009 and both the aforesaid vendees came in

possession over the aforesaid land and they got mutated

their names in revenue records. However, respondent

no.4, who happens to be son of Jagdish Mahto and grand

son of Raghunath Mahto, on 23.9.2009 executed

registered sale deed in favour of respondent no.5 in

respect of one decimal of plot no. 189 claiming the

aforesaid land as his ancestral land. Respondent no.5

made attempt to get his name mutated by filing Mutation

case no. 38/2009 but the same was rejected by Anchal

Adhikari on 18.12.2009. Mutation Appeal no. 10/2009-10

was filed by respondent no.3 but the same was, too,

dismissed on 26.6.2010. A proceeding under section 144

of the Cr.P.C was initiated between the petitioners and

the aforesaid respondent no.5 but the same was vacated in

favour of the petitioners.

Further case of the petitioners is that when

respondent no.5 failed in his attempt, the respondent no.4

filed Jamabandi Sudhar Appeal no. 02/2010-11 on

5.8.2010 against the order dated 24.10.1989 passed in

Jamabandi Sudhar Case no. 01/1988-89. The aforesaid

Jamabandi Sudhar Appeal no. 02/2010-11 was allowed

by the Collector, Lakhisarai passing the impugned order

dated 30.3.2016 setting aside the order dated 24.10.1989

passed in Jamabandi Sudhar Case no. 01/1988-89 and

also directed that jamabandi be corrected. It is also

pertinent to note here that during the pendency of

Jamabandi Sudhar Appeal no. 02/2010-11, respondent

nos.5 and 6 got executed sale deed dated 4.2.2011 in

respect of 3 1/8 decimal land of plot in question from

respondent no.4 and after execution of the aforesaid sale

deed, they made attempt to dispossess the petitioners

from the land in question and thereafter, petitioners filed

Title suit no. 62/2011 in the court of Sub Judge,

Lakhisarai which is still pending.

Counter affidavit has been filed on behalf of

respondent nos.4 to 6 pleading therein that recorded

tenant Palo Gope had sold 17 decimal area of plot no. 189

to Raghunath Mahto, grand father of respondent no.4 and

after purchase of the aforesaid land, Raghunath Mahto

got mutated his name in the sarista of zamindar and

started paying rent to zamindar and subsequently, his

name was entered in register II and rent receipts were

issued in his name. After death of Raghunath Mahto, his

sole son, namely, Jagdish Mahto inherited the property

and came in possession of the lands in question.

The aforesaid respondents also pleaded in the

counter affidavit that Bhatto Mahto was never in

possession of land in question nor his name was mutated

in the sarista of zamindar or in the register II of the State.

Return was also not submitted by Zamindar in the name

of Bhatto Mahto rather the return was submitted in the

name of Raghunath Mahto. Factum of grant of

compensation by Land Acquisition officer was also

denied. It has also been pleaded that the order dated

24.10.1989 passed by DCLR, Lakhisarai was not in the

knowledge of respondent no.4 who was minor at that time

and his father, namely, Jagdish Mahto due to his illness

could not challenge the aforesaid order and when

mutation petition of his vendee Geeta Singh was rejected,

then he came to know about the order dated 24.10.1989

and thereafter, he filed Jamabandi Appeal no. 09/2010-11

before the Collector with petition for condonation of

delay and thereafter delay was condoned and appeal was

admitted. The above stated respondent completely denied

the title of Bhatto Mahto as well as story propounded by

the petitioners before this court.

A separate counter affidavit has been filed on

behalf of the respondent nos.2 and 3.

Learned counsel appearing for the petitioners

assailed the impugned order dated 30.3.2016 passed in

Jamabandi Sudhar Appeal no. 02/2010-11 submitting that

the aforesaid Jamabandi Sudhar Appeal no. 02/2010-11

was filed on 5.8.2010 and the same was put up before

Deputy Collector In-charge who was not competent to

entertain the aforesaid appeal but even then, he passed

various orders and subsequently, the aforesaid appeal was

put up before the Collector, Lakhisarai who admitted the

aforesaid appeal on 21.7.2011.

Learned counsel for the petitioners submitted

that the aforesaid appeal was admitted near about after 21

years of passing the order dated 24.10.1989 in Jamabandi

Sudhar Case no. 01/1988-89 and no prayer for

condonation of delay was made on behalf of the

(respondent no.4) appellant of the aforesaid appeal but

even then the Collector, Lakhisarai admitted the aforesaid

appeal without passing any order of condonation of delay.

Learned counsel for the petitioners further submitted that

the petitioners challenged the order dated 21.7.2011

before this court by filing CWJC no. 1241/2012 but

subsequently, petitioners were permitted to withdraw the

aforesaid CWJC no. 1241/2012 with liberty to raise all

relevant points including point of limitation before the

Collector, Lakhisarai at appropriate stage and

furthermore, learned Collector, Lakhisarai was directed to

decide the matter on merit, if any valid issue is raised by

the petitioners. He, further, submitted that after order

passed in CWJC no. 1241/2012, petitioners filed a

petition before the Collector, Lakhisarai raising their

points including point of limitation but the learned

Collector, Lakhisarai did not pay any heed towards the

objection raised on behalf of the petitioners and

completely ignored this fact that Jamabandi Sudhar

Appeal no. 02/2010-11 was highly time barred and by

lapse of time, valuable right has already accrued in favour

of the petitioners. He, further, submitted that the

Collector, Lakhisarai has mentioned in the impugned

order dated 30.3.2016 that petition for condonation of

delay was filed and considered and after that delay was

condoned but the aforesaid observation of the learned

Collector, Lakhisarai is palpably false and beyond the

record because no petition for condonation of delay was

filed nor prayer for condonation of delay was ever

considered by the learned Collector, Lakhisarai. He,

further, submitted that admittedly, in Jamabandi Sudhar

Case no. 01/1988-89, there was sole opposite party

namely, Jagdish Mahto, who happens to be father of

respondent no.4 and the sole opposite party Jagdish

Mahto contested the aforesaid case but lost the case and

thereafter, he never challenged the order dated

24.10.1989 passed in Jamabandi Sudhar Case no.

01/1988-89. He, further, submitted that the aforesaid

Jagdish Mahto never challenged the jurisdiction of DCLR

in Jamabandi Sudhar Case no. 01/1988-89 and, as a

matter of fact, he had already waived his right to

challenge the jurisdiction of the DCLR. He, further,

submitted that the order dated 24.10.1989 passed in

Jamabandi Sudhar Case no. 01/1988-89 had already

attained its finality but the Collector, Lakhisarai failed to

take note of the aforesaid fact.

He, further, submitted that, as a matter of

fact, land in question was purchased by Bhatto Mahto in

farzi name of his brother-in-law, namely, Raghunath

Mahto and entire consideration amount was paid by

Bhatto Mahto. He, further, submitted that original

registered sale deed was withdrawn by Bhatto Mahto

from registry office and the same remained in his custody

and after his death the aforesaid document came in

possession of petitioner no.1. Therefore, the aforesaid

circumstances go to show that real owner of the disputed

plot was Bhatto Mahto and, as a matter of fact,

Raghunath Mahto was only farzidar. He, further,

submitted that after partition in the family when some

difficulty was felt in payment of rent of lands in question,

petitioner no.1 filed Jamabandi Sudhar Case no. 01/1988-

89 against Jagdish Mahto and thereafter, order dated

24.10.1989 was passed. He, further, submitted that

Bhatto Mahto got possession of disputed land

immediately after purchase of land and after his death

petitioner no.1 as well as father of petitioner nos.2 and 3

got possession and still plot in question is in possession

of the petitioners and, therefore, on the basis of the

aforesaid materials, learned DCLR corrected the

Jamabandi passing the order dated 24.10.1989.

He, further, submitted that after passing the

order dated 24.10.1989 in Jamabandi Sudhar Case no.

01/1988-89, admittedly, Jagdish Mahto did not challenge

the aforesaid order before appropriate authority under the

relevant provision of the Mutation Act, 1973 and,

therefore, respondents of the writ petition have no right to

challenge the order dated 24.10.1989 passed in

Jamabandi Sudhar Case no. 01/1988-89 before the

Collector, Lakhisarai after delay of near about 21 years.

He, further, submitted that admittedly, Bihar Land

Mutation Act, 2011 has already come into force and

section 6(12) of the aforesaid Act says that mutation of a

holding or a part thereof shall not be allowed in cases in

which title suit with regard to that holding or a part

thereof is pending in the competent court. He, further,

submitted that it is admitted position that in the present

case a title suit between the parties of Jamabandi Sudhar

Appeal no. 02/2010-11 in respect of disputed holding was

pending and admittedly, the learned Collector, Lakhisarai

passed the impugned order dated 30.3.2016 after coming

into force of Bihar Land Mutation Act, 2011. Therefore,

in view of section 6(12) of the aforesaid Act, the

Collector, Lakhisarai ought to have dropped the

proceeding of Jamabandi Sudhar Appeal no. 02/2010-11.

Learned counsel for the petitioners referred

several decisions in support of his above stated

contentions such as 1998(2) PLJR 148, (1998) 8 SCC 1,

(2009) 16 SCC 187, AIR 1961 SC 1506, AIR 1983 Patna

121, 1990 (2) PLJR 819, 1978 BBCJ 323, 2017 (I) PLJR

818, 2015 (I) PLJR 606 and 1985 PLJR 554.

On the other hand, learned counsel for

respondents refuted the above stated submissions arguing

that admittedly, disputed land stood recorded in the name

of Raghunath Mahto not only in the sarista of zamindar

but also in the record of the State of Bihar after vesting

zamindari and Raghunath Mahto died in the year 1972-73

but even then the Jamabandi continued his name. He,

further, submitted that according to the petitioners,

Jamabandi Sudhar Case no. 01/1988-89 was filed by the

petitioners for correction of jamabandi recorded in the

name of Raghunath Mahto on the ground that the

aforesaid Raghunath Mahto was a benamidar and land in

question was purchased by Bhatto Mahto and on the basis

of the above petition, DCLR passed the order dated

24.10.1989 in the aforesaid Jamabandi Sudhar Case no.

01/1988-89 but, as a matter of fact, DCLR had no

jurisdiction to decide the title of the parties in the

aforesaid Jamabandi Sudhar Case no. 01/1988-89. He,

further, submitted that even if it is assumed that the

Collector has got no jurisdiction to cancel jamabandi,

then also, it is well settled principle of law that by setting

aside an illegal order the court can not permit to restore

another illegal order. He, further, submitted that neither

Circle officer nor DCLR was competent to cancel

jamabandi recorded in the name of Raghunath Mahto

and, therefore, the order dated 24.10.1989 was itself an

illegal order. Moreover, State Government, vide several executive directions, directed its officers not to take up

cases of mutation when question of title involves because

question of title can only be decided by the civil court.

He, further, submitted that, as a matter of fact, when

respondent no.4 sold some land to respondent nos.5 and 6

and when mutation of purchaser was not allowed, then it

came to the notice of respondent no.4 that DCLR had

illegally cancelled jamabandi of Raghunath Mahto and

thereafter, he filed petition before the Collector for

correction of jamabandi as well as for setting aside the

order of DCLR passed in Jamabandi Sudhar Case no.

01/1988-89 and thereafter, the learned Collector,

Lakhisarai set aside the order dated 24.10.1989 passing

the impugned order and, as a matter of fact, Collector

rectified the mistake earlier committed by the revenue

officials.

He, further, submitted that, no doubt,

respondent no.4 filed Jamabandi Sudhar Appeal no.

02/2010-11 near about after 21 year of passing the order

dated 24.10.1989 in Jamabandi Sudhar Case no. 01/1988-

89 but, as a matter of fact, when notice was issued to the

petitioners in the aforesaid Jamabandi Sudhar Appeal no.

02/2010-11, petitioners challenged issuance of notice

before this court by filing CWJC no. 1241/2012 but a

coordinate bench of this court refused to interfere into the

order of the Collector, Lakhisarai rather held that notices

were validly issued to the petitioners in Jamabandi

Sudhar Appeal no. 02/2010-11 and, therefore, it is

obvious that a coordinate bench of this court ignored the

delay in filing Jamabandi Sudhar Appeal no. 02/2010-11

and moreover, the impugned order goes to show that the

Collector had condoned the delay in filing Jamabandi

Sudhar Appeal no. 02/2010-11. He, further, submitted

that the learned Collector rightly passed the impugned

order because the then DCLR while allowing Jamabandi

Sudhar Case no. 01/1988-89 had committed gross

illegality and, therefore, there is no occasion before this

court to interfere into the impugned order while

exercising power vested under Article 226 of the

Constitution of India. Learned counsel for the

respondents, too, relied upon decisions reported in 1989

PLJR 80, 1988 PLJR 174, 1961 SC 1506, 2010(I) PLJR

499, AIR 1954 SC 340 and AIR 1951 SC 230.

Having heard the contentions of both parties,

l have gone through the record as well as decisions cited

on behalf of the parties. It is admitted position that

registered sale deed dated 20.12.1948 was executed by

recorded tenant Palo Gope and the aforesaid registered

sale deed stood in the name of Raghunath Mahto. Further,

it is admitted position that name of Raghunath Mahto was

entered into sarista of zamindar and rent receipts were

issued in his name by the concerned zamindar. It is also

admitted position that after vesting of zamindari into the

State, jamabandi was opened in the name of the aforesaid

Raghunath Mahto who died in the year 1972-73 and after

his death, Jamabandi of disputed land continued for some

period in the name of aforesaid Raghunath Mahto. It is

also admitted position that rent receipts were issued in the

name of Raghunath Mahto.

However, it is also an admitted position that

for the first time, petitioners raised objection regarding

entry of Jamabandi before the revenue officials and after

due verification and report of karamchari and circle

officer, DCLR struck off name of Raghunath Mahto and

ordered for recording the names of the petitioners in

Jamabandi vide order dated 24.10.1989 in Jamabandi

Sudhar Case no. 01/1988-89. It is further admitted

position that Jagdish Mahto, who happens to be father of

respondent no.4, appeared and contested the aforesaid

Jamabandi Sudhar Case no. 01/1988-89 but after passing

the order dated 24.10.1989 in the aforesaid case, he never

challenged the said order before the superior authority.

So, even if it assumed that DCLR had no jurisdiction to

pass the aforesaid order dated 24.10.1989 in Jamabandi

Sudhar Case no. 01/1988-89, then also, the aforesaid

order has already attained its finality.

Furthermore, it is also an admitted position

that respondent no.4 challenged the order dated

24.10.1989 passed in Jamabandi Sudhar Case no.

01/1988-89 after 21 years of passing the aforesaid order,

though he was not party to the aforesaid Jamabandi

Sudhar Case no. 01/1988-89. Admittedly, Jagdish Mahto

was alive when respondent no.4 filed Jamabandi Sudhar

Appeal no. 02/2010-11 but Jagdish Mahto did not join

respondent no.4 in Jamabandi Sudhar Appeal no.

02/2010-11. Therefore, in the aforesaid circumstances, in

my view, respondent no.4 had no locus standi to file

Jamabandi Sudhar Appeal no. 02/2010-11, particularly, in the life time of his father, namely, Jagdish Mahto.

It would appear from perusal of annexure 6

to the petition that the Collector, Lakhisarai did not pay

any heed towards the delay in filing the aforesaid

Jamabandi Sudhar Appeal no. 02/2010-11 nor condoned

the delay in filing the aforesaid Jamabandi Sudhar Appeal

no. 02/2010-11, particularly, in the circumstances when

Jamabandi Sudhar Appeal no. 02/2010-11 was filed near

about after 21 years of the order passed in Jamabandi

Sudhar Case no. 01/1988-89 and that, too, on behalf of a

person who had no locus standi to file Jamabandi Sudhar

Appeal no. 02/2010-11. It is not in dispute that neither the

Collector had jurisdiction to cancel Jamabandi under the

old Mutation Act 1973 or prior to that Act nor under the

Bihar Land Mutation Act, 2011 but even then Collector

passed the impugned order dated 30.3.2016. However, it

has been argued on behalf of the respondents that the

Collector had only rectified the error committed by the

DCLR and, as a matter of fact, Jamabandi Sudhar Appeal

no. 02/2010-11 was not an appeal in true sense rather the

Collector entertained the aforesaid case as Jamabandi

Sudhar Case but I am not at all convinced with the

aforesaid submissions because the Collector had got no

jurisdiction to correct or cancel Jamabandi and after

coming into force of Bihar Land Mutation Act, 2011,

power of cancellation of Jamabandi has been given to

Additional Collector and admittedly, the impugned order

was passed after coming into force of Bihar Land

Mutation Act, 2011. Therefore, at the time of passing the

impugned order, the Collector had got no right either to

cancel or correct Jamabandi.

It is admitted position that a title suit between

the parties in respect of disputed lands was pending

before the civil court at the time of passing the impugned

order but the Collector over-looked section 6(12) of the

Bihar Land Mutation Act, 2011 which mandates that

mutation of a holding or a part thereof shall not be

allowed in case in which title suit with regard to that

holding or a part thereof is pending in the competent

court.

No doubt, in the present case, it has been

argued on behalf of the respondents that the Collector has

corrected Jamabandi in question passing the impugned

order and, therefore, section 6(12) of the Bihar Land

Mutation Act, 2011 is not attracted in this case because

the aforesaid provision speaks about mutation but I am

not at all convinced with the aforesaid submissions

because admittedly, dispute arose between the parties

after death of Raghunath Mahto on 24.10.1989. After

death of Raghunath Mahto, Jamabandi was corrected and

name of petitioner no.1 as well as father of petitioner

nos.2 and 3 were entered which was subsequently, again,

corrected by the impugned order. Therefore, the aforesaid

fact goes to show that there was dispute of mutation

between the parties though in the guise of correction of

Jamabandi. Moreover, it is well known fact that

Jamabandi does not create right and title of the parties

and Jamabandi is prepared only with a view to collect

rent of the land. Although entry in Jamabandi is to some

extent, prima facie, proves possession of the parties but

that is always rebuttal. It appears to me that keeping in

view of the aforesaid proposition of law, section 6(12) of

the Bihar Land Mutation Act, 2011 has been introduced

and revenue officials have been restrained to pass an

order of mutation in cases in which title suit with regard

to holding is pending in the competent court because it is

admitted position that revenue court has got no

jurisdiction to declare right and title of the party in

mutation case.

In the present case, admittedly, the

Collector having passed the impugned order directed for

making correction in Jamabandi which was stood in the

name of petitioner no.1 and father of petitioner nos. 2 and

3 though the Collector had got no jurisdiction to entertain

the said proceeding. Moreover, after application of Bihar

Land Mutation Act, 2011, the Collector was bound to

drop the aforesaid proceeding till the final decision of the

title suit pending between the parties before the

competent court in respect of disputed lands.

However, a proceeding for cancellation of

Jamabandi could not have been entertained by the

Collector as the Collector had got no jurisdiction to

entertain the aforesaid proceeding because neither in the

old Act nor in the present Act, the Collector had got

jurisdiction to cancel Jamabandi or entertain the appeal

against the order of DCLR. In Bihar Land Mutation Act,

2011, the Additional Collector has been empowered for

cancellation of Jamabandi and appeal shall lie against the

order of Additional Collector before the Collector.

Therefore, in the aforesaid circumstances, in my view, the

impugned order can not sustain in the eye of law.

On the basis of the aforesaid discussions, this

writ petition stands allowed and the impugned order dated

30.3.2016 annexed as annexure 10 to the writ petition

passed in Jamabandi Sudhar Appeal no. 02/2010-11

stands quashed. It is made clear that findings/observations

given in this order shall not affect right, title and

possession of the parties in future litigation.