IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1619 of 2001 SURESH PRASAD & ORS Versus THE STATE OF BIHAR & ORS ----------- For the Petitioners :Mr. Pushkar Narain Shahi, Advocate For the private Respondents :M/s Hemendra Prasad Singh & Kameshwar Kumar, Advocates 07/ 12.9.2008 Heard learned counsel for the petitioners and private Respondents. 2. Petitioners are aggrieved by the orders passed by the mutation authorities dated 18.2.1998 in Mutation Case Nos. 777 of 1997-98 and 778 of 1997-98, as contained in Aannexures-4 and 5, whereunder the lands in question have been mutated in the name of private Respondent nos. 5 to 7 on the basis of the sale deed executed by private Respondent no.8. 3. It is submitted on behalf of the petitioners that the mutation authorities have passed order dated 18.2.1998, Annexures-4 and 5 relying on the order of the Joint Director, Consolidation, Muzaffarpur dated 24.9.1993, Annexure-3 passed in Revision Case No. 9 of 1990, which was disposed of on the basis of compromise arrived at between the private Respondent nos. 8 (the vendor of private Respondent nos. 5 to 7) and 9 to 12. It is further submitted on behalf of the petitioners that as the petitioners were not party to the Revision Case No. 9 of 1990, the compromise arrived therein as also the order dated 24.9.1993 disposing of the revision on the basis of the compromise arrived at between private Respondent no.8 and private Respondent nos. 9 to 12 will not bind them and in appreciation of such - 2 - submission the two impugned mutation orders be set aside. 4. By filing counter affidavit, private Respondent nos. 5 to 7 have opposed the prayer and have submitted that the petitioners may not be party to the proceedings taken in Revision Case No. 9 of 1990, Annexure-3, but they were served with notice of the proceedings taken with regard to the lands in question before the Assistant Consolidation Officer in Case No. 132 of 1988 and after service of notice in the said proceeding, order dated 25.2.1989, Annexure-C was passed against the petitioners and in favour of private Respondent no.8, the vendor of private Respondent nos. 5 to 7 and as the petitioners did not choose to challenge the said order, this writ petition should be dismissed for failure to challenge the order dated 25.2.1989, Annexure-C to the counter affidavit. 5. I regret not to accept such submission as from the service report of the notice served on the petitioners, Annexure-B itself, it will appear that the same was issued on 1.3.1989, which is evident from page 20 of the counter affidavit and was served on the petitioners on 7.3.1989, which is evident from page 28 of the counter affidavit, but the order Annexure-C was made on 25.2.1989. In the circumstances, there is no difficulty in concluding that the order dated 25.2.1989, Annexure-C was passed by the Assistant Consolidation Officer even prior to the service of notice on the petitioners. 6. Accordingly, I was tempted in these proceedings itself to record a finding that the order dated 25.2.1989, contained in Annexure-C to the counter affidavit may not be relied upon against - 3 - the petitioners, but that may be too cavalier an approach on the part of this Court. In the circumstances, I permit the petitioners to take appropriate proceedings against the order dated 25.2.1989, Annexure- C to the counter affidavit by filing appeal/ revision against the same on the ground that the said order was passed behind the back of the petitioners as the said order was passed prior to issue and service of notice on them. In the event, petitioners succeed in getting the order dated 25.2.1989 set aside by the court below then they shall be at liberty to approach the mutation authorities for the needful. 7. This application is, accordingly, disposed of. Arjun/ (V.N. Sinha, J.)