CIVIL WRIT JURISDICTION CASE No.8184 OF 1991 (In the matter of an application Under Articles 226 and 227 of the Constitution of India.) *********** NARSINGH PATHAK Son of Tribhuwan Pathak, Resident of Village- Jaipur, P.O.-Jaipur, P.S. Arwal, District-Jahanabad (Gaya) ----------------- Petitioner Versus 1. The State of Bihar. 2. The Joint Director Consolidation, Gaya. 3. The Deputy Director Consolidation, Gaya. 4. The Consolidation Officer Arwal, Gaya. 5. Jaglal Pathak son of Bindeshwari Pathak. 6. Devidatta Pathak. 7. Markandey Pathak. 8. Lamash Pathak Sons of Jaglal Pathak. 9. Ragho Pathak. 10. Ishwar Dutta Pathak Sons of Chhotan Pathak. All residents of Village- Jaipur, P.O.-Jaipur, P.S.-Arwal, District- Jahanabad (Gaya) ---------------Respondents ----------- For The Petitioner : Mr. Mritunjay Pd. Singh No. 2. For The Respondent Nos. 5 to 8:- Mr. Keshav Shrivastava, Sr.Adv. Mr. Bhusneshwar Prasad, Adv. *********** P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN ************* Sheema Ali Khan, J. Petitioner has challenged the order of the Joint Director dated 23.8.1991 contained in Annexure-4 by which he has reversed the order passed by the Consolidation Officer on 27.7.85 and the order passed by the Deputy Director Consolidation dated 19.12.85. The genealogical table is as follows:- 2 2. The dispute relate to land appertaining to Khata No. 569, New Khata No. 293 Ka measuring 6 acres and 22 decimals in village Jaipur, P.S. Arwal, District- Jahanabad. Petitioner claims that there was partition between the ancestors of the petitioner and respondents Mahipath Pathak and Dipan Pathak several years ago. At the time of vesting the Ex-Zamidar filed return in the name of Sundar Pathak S/O Mahipath Pathak and respondent nos. 9 and 10 (Grandson of Sundar Pathak). The name of Sundar Pathak was mutated in the revenue records. 3. The respondents’ case on the other hand is that there was a partition in the family of the parties with respect to all lands except the land of Khata No. 569. The respondent filed Title Suit No. 52 of 1974. In title suit the main issue framed by the Trial Court was that “is the plaintiff’s case that land of Khata No. 569 remained joint 3 even though there was a partition between the plaintiffs and defendant’s ancestral long ago”? The Trial Court came to the findings that the documentary and the oral evidence go to show that the plaintiffs have utterly failed to prove joint possession and joint cultivation over plot no. 569. The trial Court also came to the finding that the conduct of the plaintiffs also indicate that the whole of Khata No. 569 was allotted to the defendants as they have been dealing with the land which is proved by documentary and oral evidence. The plaintiff respondent filed Title Appeal No. 112 of 1976 which abetted under Section 4 of the Bihar Consolidation of Holdings & Prevention of Fragmentation Act, 1956 on 30.6.1980. 4. The petitioner thereafter filed an objection under Section 10 (4) as the land of Khata No. 569 had been recorded in the joint possession of the petitioner and the respondents in the revisional survey. The consolidation officer on the basis of the judgment in the title suit allowed the application of the petitioner which was upheld by the Deputy Director Consolidation. The Joint Director Consolidation reversed the findings of the Consolidation Officer and the Deputy Director Consolidation, on the ground that the suit would also abate in view of the fact that the appeal of the respondents has abated due to the commencement of the 4 Consolidation work in the District. The Joint Director thus relied on the entry in the revisional survey for carving out the chaks. 5. This Court after consideration of the aforesaid facts comes to the conclusion, that the findings of the Joint Director is erroneous in view of the fact that admittedly, there is the finding in favour of the petitioner (defendant in Title Suit No. 52 of 1974) indicating that Plot no. 569 falls in the exclusive share of the defendants, after partition of the land. Counsel for the petitioner submits that once it is admitted that there was a partition of the ancestral property, the petitioner and respondents, the respondents-plaintiff cannot claim that there was no partition with respect only one Khata of the land situated in village- Jaipur. The trial Court has discussed in detail the reasons for holding that Khata No. 569 was not joint possession of the parties. 6. In my opinion the Joint Director ought to have heard the revision application and considered the case of the plaintiff and defendants with respect to their claim regarding jointness of Khata No. 569, examined the documents, taken evidence before differing with the findings of the consolidation officer or Deputy Director Consolidation. In this case proper remedy for the respondent would be to assail the findings in Title Suit No. 5 52 of 1974 by filing an application re-opening of the Title Appeal No. 112 of 1976 before the Court where it was pending in view of the fact that the Consolidation Proceeding have reached their finality as far as the petitioner and respondents case is concerned. The order of the Joint Director Consolidation will remain an abeyance till the final decision of the Civil Court with respect to the claim regarding Khata No. 569 and Khata No. 293 situated in village- Jaipur. 7. This writ application is disposed of in the aforesaid terms. Patna High Court Dated 9th November, 2010 Anand Kr./NAFR (Sheema Ali Khan, J.)