IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4758 of 2007 MOST.PANPATTI DEVI Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner :- Sri Indradeo Prasad, Adv. For the State :- Mr. R.C.P. Bharti, S.C. 14 Mr. Ajay Kumar J.C. to S.C. 14. O.P. No. 15 :- Mr. Burendra Kr. Singh, Adv. Smt. Sudha Singh, Adv. For Respondent No. 18 :- Mr.Sidharth Prasad, Adv. For Respondent No. 12 :- Sri. Ganga Bimal, Adv. ---------------------- 5. 21.8.2008 Heard learned counsel for the petitioner, learned counsels for respondent no. 12 and respondent no. 15 as also learned Standing Counsel No. 14 for the State. The petitioner has approached this Court for a direction to remove the encroachment on 4 decimals of land purchased by him by a registered sale deed no. 653 dated 27.6.2005 situated in Mauza- Dugra, Tauzi no. 2525, Khata no. 67, Plot no.653 for an amount of Rs. 4,00,000/- and also for protection of the life of her sons and issuance of directions to the respondent State Officials to take appropriate action against the encroacher and for further consequential reliefs. The short facts as can be gauged from the materials on the record are that the petitioner had purchased the aforesaid land on 27.6.2005 upon which as per the petitioner’s own statement made to the District Magistrate in a petition dated 8.9.2006 (Annexure-2) four huts were pre-existing in which the respondents were living with their family with the permission of the vendor of the petitioner, respondent no. 12, Chandeshwar Prasad and the petitioner also permitted them to - 2 - stay for a further period of six months for free but even thereafter they have not vacated. It is alleged that a Panchayati had also taken place between the parties. Apart from that proceedings under section 107 Cr.P.C. were initiated against both parties. The petitioner also contends that she and her sons are threatened by various criminals in the matter and in the year 2000 her elder son had been murdered by the criminals. In the present matter also she has been threatened from approaching the Court otherwise they will kill her. Learned counsel for the petitioner has sought to draw the attention of this Court to the report of the Police in 107 Cr.P.C. proceedings in which certain statement has been made regarding the land having been purchased by the petitioner and threats being issued to her but on perusal of the said reports contained in Annexures 4 and 5, it is evident that the recommendation has been made for directing both the parties to execute bond under Section 116(3) Cr.P.C. Learned counsel also sought to rely upon a decision of a learned Single Judge of this Court in the case of Mani Kant Chaudhary & Ors. Vs. The State of Bihar 2001(1) PLJR 333 in which in the facts and circumstances of the said case, the District Magistrate had been directed by this Court to see that the possession of the land in question was restored to the petitioners of that case. Learned counsel for the petitioner also relies upon the decision of the Supreme Court in the case of S. K. Ejaz Vs. T.N. Handloom Weavers’ Cooperative Society Ltd.: (2002) 3 SCC 137 in Paragraph 8 of which it has been held as follows. “8. In our view, if such actions by the mighty or - 3 - powerful are condoned in a democratic country, nobody would be safe nor can the citizens protect their properties. Law frowns upon such conduct. The Court accords legitimacy and legality only to possession taken in due course of law. If such actions are condoned, the fundamental rights guaranteed under the Constitution of India or the legal rights would be given a go-by either by the authority or by rich and influential persons or by musclemen. Law of jungle will prevail and “might would be right” instead of “right being might”. This Court in State of U.P. v. Maharaja Dharmander Prasad Singh dealt with the provisions of the Transfer of Property Act and observed that a lessor, with the best of title, has no right to resume possession extrajudicially by use of force, from a lessee, even after the expiry of earlier termination of the lease by forfeiture or otherwise. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited. The Court also held that there is no question of the Government withdrawing or appropriating to it an extrajudicial right or re-entry and the possession of the property can be resumed by the Government only in a manner known to or recognized by law.” On the basis of the aforesaid facts and decisions relied upon by him, learned counsels submits that if law will not protect the petitioner then who will and further that she has not filed the writ petition merely for possessear of property but for protection of the life of the petitioner’s son. Learned counsel also sought to make out a distinction between occupation and possession. He also sought to rely upon the provisions of Articles 64 and 65 of the Limitation Act in this regard for the proposition that it is for the person claiming adverse possession for continuous period of 12 years to prove the same as to from which date the possession became adverse to the actual owners and only on the basis of the same any resort can be taken to a plea based on adverse possession. - 4 - Learned counsel for respondent no. 12, the vendor of the petitioner, supports the stand of the petitioner. Learned counsel for respondent no. 15 on the other hand vehemently opposes the claim of the petitioner to have the issues decided in a writ proceeding. It is stated that the petitioner has unnecessarily sought to mix up the facts related to the murder of her elder son which had taken place in the year 2000, much before the petitioner had purchased the property on 27.6.2005. It is contended that the respondents are not concerned with the said criminal case and further that the lands in question had been settled by one late Ram Das Pal with the father of respondent Nos. 15 and 16 late Noor Mohammad after taking full consideration of the amount. Thereafter, the respondent had constructed the huts over the same and they had also got the electricity and telephone connection there for a long period of time. In support of the same, the respondents have annexed electricity bill of the years 1991 and 1992 as also the telephone bill in the name of their brother of the year 2001 and 2002. It is thus submitted that this is not a case of encroachment upon the land of the petitioner rather the respondent claiming the same on the basis of their own valid title and it is the petitioner who had purchased the disputed property in the year 2005 and had wrongly taken recourse to writ proceedings for evicting the respondents from the land in question. It is stated that the matter pertains to questions of facts for deciding the issues for which proceedings under Article 226 of the Constitution are not the proper proceedings. - 5 - Learned counsel for the State also refers to the statement made in para 19 of the writ petition that the petitioner had filed Case No. 481(M)/2006 under Section 107 of the Code of Criminal Procedure before the Sub Divisional Officer, Sadar, Patna who vide order dated 21.2.2006 had dismissed the same with the observation that the petitioner should go to the competent Court for the same. It is submitted that the writ Court is certainly not the competent Court to decide such issues of facts. On a consideration of the facts and circumstances of the case, this Court is of the view that the present application before this Court is wholly misconceived. It is evident that the petitioner had purchased the land on 27.6.2005 in which on her own admission as many as four huts were in existence and the respondents were living there with their family members. So far as the nature of the possession or occupation over the land in question is concerned the same cannot be decided in writ proceedings. As a matter of fact, the respondents have disputed the claim of the petitioner and are claiming title on the basis of settlement made in the year 1950. These are not issues which can be dealt with in a writ petition at all. The reliance by learned counsel for the petitioner on the case of Mani Kant Chaudhary (supra) appears to be totally misconceived. In the said matter the clear finding had been recorded by the Sub-divisional Officer that unlawful and illegal occupants having political patronage have occupied the land of the petitioner of that case and in the said circumstances, this Court had issued the direction to the State authorities to act in terms of - 6 - the said findings recorded by them and restore the possession to the petitioner. The present matter does not stand at all on the same footing since petitioner has purchased land on which the private respondents were already in occupation, whatever be the nature of the possession. Similarly no benefit can be derived by the petitioner from S. K. Ejaz’s case in which the matter related to forcible dispossession of a tenant by a landlord and the observations of the Supreme Court in the said judgment were made in the said context. That is not the position in the present matter. The other submissions of learned counsel regarding distinction between occupation and possession and issue of adverse possession, etc are not matters which can be looked into in the writ proceeding as they involve the framing of issues and decision on the same on the basis of oral/documentary evidence brought by the parties for which appropriate proceeding would evidently lie elsewhere. The claim of the petitioner that law must protect her cannot stand the scrutiny of the Court since the law must protect all who are in possession until the person concerned is evicted in accordance with the process of law. In the light of the discussions made above, this Court does not find any merit in the writ application and it is accordingly dismissed. P. Kumar (Ramesh Kumar Datta, J.)