CIVIL WRIT JURISDICTION CASE No.7133 OF 2002 In the matter of an application Under Article 226 of the constitution of India. KAMLA KANT MISHRA son of Late Chuman Mishra, resident of village- Mirchabari, Gangapur, P.O.- Mirchabari, P.S.- Jankinagar, District- Purnea. Versus 1. THE STATE OF BIHAR 2. Shri Ram Bujhawan Choudhary, Sub-Divisional Officer, Banmankhi, Sub-Division, District- Purnea 3. Shri Vidya Nand Yadav son of Singheshwar Yadav, resident of village-Mirchabari, Gangapur, P.S.- Jankinagar, District Purnea 4. Vyas Jha son of Shri Kritya Nand Jha (deceased) son of Jagat Lal JHa, resident of MOhalla Madhubani, Purnea For The Petitioner : Mr.ASHOK KUMAR SINHA, Sr. Advocate For The Respondents : Mr. Arun Prasad Ambastha, Advocate Mr. Arun Kumar Choudhary, Advocate Mr. Jai Bahadur Rai, Advocate P R E S E N T THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA S.K.SINHA,J Heard the parties. The petitioner is aggrieved by order dated 22.03.2002 passed by the Sub-Divisional Officer, Banmankhi, Purnea, respondent no.2, on an appeal filed by the respondent no.3 arising out of a proceeding under section 48 (D) of the Bihar Tenancy Act (hereinafter referred to as “the Act”), whereby and whereunder the order dated 16.09.1995 passed by the Circle Officer, Banmankhi dismissing the application filed by the respondent no.3 has been set aside. The relevant facts, in short, is that the - 2 - respondent no.3 filed an application for declaring his occupancy Raiyati right with respect to plot nos. 1789 & 1995 over an area of 05. acres & 0.30 acres respectively situated in village- Mirchabari, Gayapur appertaining to Thana No. 354, Khata No. 131 under sub division Banmankhi, District- Purnea. The application was dismissed by the Circle Officer, Banmankhi as per the order dated 16.09.1995 (Annexure-1) primarily on the ground that before claiming the Raiyati right under section 48(D) of the Act, the applicant is required to get himself declared as under Raiyat first under section 48(E) of the Act. The respondent no.3 on being aggrieved filed appeal before the Sub-Divisional Officer, Banmankhi, respondent no.2, vide Revenue Appeal No. 43 of 1995-96. The respondent no.2 called for the lower Court record of Case No.147 of 1994-95 as mentioned in the memo of appeal and found that the description of the land and the name of the parties do not tally with the claims made by the appellant, which was in respect of land detailed in Case No. 146 of 1994-95. The appeal was accordingly dismissed on account of above discrepancy by order dated 13.01.2001 (Annexure-2). The respondent no.3 on learning about the above discrepancy on account of which his appeal was dismissed as aforesaid, filed an application for review of the above order dated - 3 - 13.01.2001 before the Sub Divisional Officer, Banmankhi, respondent no.2, which was registered as Case No. 43 of 1995-96/ 2 of 2000-01. The respondent no.2 on hearing the parties i.e. the petitioner and the respondent no.3 accepted the application and fixed for hearing of the appeal on merits by its order dated 19.11.2001, as contained in Annexure-A to the counter affidavit filed on behalf of the respondent no.2. Further dates were fixed in the appeal when petitioner as well as the respondent no.3 appeared and took necessary steps and also filed their respective written arguments on merits of the matter. The respondent no.2 heard the appeal on merits and disposed of the same by the impugned order dated 22.03.2002 (Annexure-6) whereby the appeal was partly allowed considering the submissions and the documents filed by the parties. The respondent no.2 allowed the claim of the respondent no.3 with respect to plot No. 1789 over 0.51 acres of land only and did not allow his claim with respect to plot no. 1995 over 0.30 acres of land. It is submitted on behalf of the petitioner that the respondent no.2 committed serious error of law in passing the impugned order dated 22.03.2002 upon review of the order dated 13.01.2001 (Annexure-2) since the Revenue Court has no power much less under the - 4 - aforesaid Act to review its order and on this ground alone the impugned order deserves to be quashed. Besides the above, it is submitted that while passing the impugned order the respondent no.2 failed to appreciate correctly the judgement and decree of the Civil Court passed in Title Suit No. 177 of 1955 wherein respondent no.3 did not get any right, title or interest with respect to plot no. 1789. Learned counsel appearing for the State and respondent no.3, on the other hand, submit that admittedly while filing the appeal by the respondent no.3 inadvertently the case number of the lower Court record was mentioned as “147 of 1994-95” instead of the correct case number “146 of 1994-95” which resulted in calling of the record of case no. “147 of 1994-95”. Therefore, while hearing the appeal the then Sub Divisional Officer, Banmankhi found that the submissions of the parties with respect to details of the land and the name of the parties did not at all tally with the details of the lower Court record as well as the name of the parties mentioned in the record. On account of such discrepancy the appeal was dismissed by order dated 13.01.2001 (Annexure-2). It is further submitted that on coming to know the above mistake filed an application for hearing the matter on merit between the petitioner and the - 5 - respondent no.3 in respect of the case no. 146 of 1994-95 since the appeal was earlier dismissed for his default. The said request of the respondent no.3 after hearing the petitioner was accepted by order dated 19.11.2001, as contained in Annexure-A to the counter affidavit filed on behalf of the respondent no.2. The petitioner did not raise any grievance against the said order or challenged the same before any Court of law, and as such, it attained its finality. Not only this, after passing of the said order dated 19.11.2001 a good number of dates were fixed in the appeal when both the parties appeared and took necessary steps in respect of their respective cases and also filed written argument on merits of the matter. It is further submitted that the respondent no.2 considered the documents filed by both parties and their respective submissions and has virtually considered and relied upon the compromise decree between the petitioner on one side and the respondent no.3 and his mother on the other side. The respondent no.2 considering the relevant documents as aforesaid partly allowed the appeal of the respondent no.3 with respect to plot no. 1789 over 0.51 acres of land only whereas his claim with respect to plot no. 1995 was not allowed. Considering the submissions of the parties and on perusal of their respective pleadings, it appears that - 6 - the respondent no.3 had filed an application claiming Raiyati right by filing an application under section 48(D) of the Act before the Circle Officer, Banmankhi, which was registered as Case No. 146 of 1994-95. The same was dismissed by order dated 16.09.1995 (Annexure-1) observing that before making an application claiming Raiyati right the applicant is first required to get himself declared as under raiyat by initiating a proceeding under section 48(E) of the Act. The respondent no.3 filed the appeal against the said order, as noticed above, which was dismissed by order dated 13.01.2001 (Annexure-2) for having found that the details of the land as recorded in the lower Court record called for i.e. 147 of 1994-95 do not tally with the claim of the parties being advanced during hearing which relate to Case No. 146 of 1994-95. Therefore, having found such the respondent no.2 dismissed the appeal. The respondent no.3 thereafter filed an application bringing to the notice of the respondent no.2 that since in the memo of appeal by typographical mistake the case number of the lower Court record was mentioned as 147 of 1994-95 instead of 146 of 1994-95 which resulted in calling for the record of Case No. 147 of 1994-95 which was not the subject matter of the appeal. The request of the respondent no.3 filed before the respondent no.2 although labelled as - 7 - review was virtually for restoration of his appeal, which was dismissed on account of his default by mentioning the wrong case number of the lower court record. It further appears that the respondent no.2 upon hearing the parties accepted the application for hearing the appeal on merits by order dated 19.11.2001, as contained in Annexure-A to the counter affidavit filed on behalf of the respondent no.2. It is not in dispute that the petitioner did not assail the same and rather he accepted the order and took part in hearing of the appeal on the merits by making appropriate submissions orally as well as by filing documents in support of his claim followed by filing the written arguments on merits. Upon perusal of the impugned order dated 22.03.2002 (Annexure-6) it appears that the respondent no.2 has considered the respective claim of the parties in light of the documents filed by them in support of their respective claim. The respondent no.2 on the question of fact that on the basis of the compromise decree between the petitioner and the respondent no.3 both the parties accepted the same and came in possession of their respective plots. Accordingly, the respondent no.2 allowed the claim of the respondent no.3 over the plot no. 1789 with respect to an area of 0.51 acres of land and did not allow his claim with regard to plot no. 1995 for an area of 0.30 acres of land in light - 8 - of the judgement and decree of the Civil Court and acted upon by the parties by coming over in possession of the respective land. From the foregoing discussions it would appear that the respondent no.2 while accepting the request of the respondent no.3 for passing the impugned order partly allowing the appeal on merits which was earlier dismissed on account of discrepancy in the details of the land and the name of the parties, did not commit any error of law, and as such, the order can not be faulted in law. As regards the merits of the order, I find that the respondent no.2 has passed the order upon considering and appreciating the documents filed by the parties which were binding upon them. This being the position, petitioner failed to make out any case calling for interference of this Court in its writ jurisdiction with respect to the impugned order dated 22.03.2002 (Annexure-6). In view of the discussions made above and the foregoing reasons, I do not find any merit in this writ application. The same is, accordingly, dismissed. The Patna High Court The 17thday of April, 2009 Manish/A.F.R. ( Shailesh Kumar Sinha,J.)