CIVIL WRIT JURISDICTION CASE No.7192 OF 1990 In the matter of an application under Articles 226 and 227 of the Constitution of India. 1. BHIMSEN PRASAD MEHTA 2. PREMCHAND PRASAD MEHTA 3. JAGDISH PRASAD MEHTA 4. SATYANDRA PRASAD MEHTA ALL SONS OF RAGHUNANDAN MEHTA, ALL RESIDENTS OF VILLAGE ABDULPURE, P.S. RAFIGANJ, DISTRICT AURANGABAD. ----- PETITIONERS Versus 1. THE STATE OF BIHAR 2. COMMISSIONER, GAYA DIVISION, GAYA 3. ADDITIONAL COLLECTOR, AURANGABAD 4. DEPUTY COLLECTOR, LAND REVENUE, AURANGABAD 5. CIRCLE OFFICER, RAFIGANJ, P.S. RAFIGANJ, DISTRICT AURANGABAD ----- RESPONDENTS 1ST PARTY 6. BHAGWAN MEHTA, SON OF LATE RAM PRASAD MEHTA 7. KANHAI MEHTA, SON OF LATE RAM SWARUP MEHTA BOTH RESIDENTS OF VILLAGE ABDULPURE, P.S. RAFIGANJ, DISTRICT AURANGABAD. ----- RESPONDENTS 2ND PARTY ----------- For The Petitioner : MS.SUSHMITA MISHRA, ADVOCATE For The private Respondents : MR.JAGDISH PRASAD BHAGAT, ADVOCATE MR.D.N. TIWARY, ADVOCATE For The State : MR. BINAY KUMAR PANDEY, AC TO SC 7 P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. This application has been filed challenging the order passed by the Divisional Commissioner dated 1.8.1990 in Revision Case No. 59 of 1989, order dated 22.7.1989 passed by the Additional Collector, Aurangabad in Case No. 116/84-85 and the order dated 4.7.1984 by the D.C.L.R., Aurangabad in Appeal No. 59/83-84 as well as the order of the Circle Officer fixing the rent in favour of the 2 petitioners which was passed on 2.9.1983. 2. The undisputed facts of the case are that Ram Prasad Mehta had three sons, Bhagwan Mehta, Ram Swarup Mehta and Raghunandan Mehta. The petitioners are from the branch of Raghunandan Mehta whereas the respondent nos. 6 and 7 are from the branch of Bhagwan Mehta and Ram Swarup Mehta respectively. A Title Suit 157 of 1959 was filed by the petitioners which was decreed in their favour. Against the decree and judgment the respondent nos. 6 and 7 filed a Title Appeal No. 67 of 1965 which was dismissed on 13.6.1970. Execution Case 66 of 1964 was filed and the petitioners came into possession through the Court in the year 1970 of the lands which are subject matter of fixation of rent. The respondents filed Second Appeal No. 440 of 1970 which was disposed of by this Court on 3.12.1974 confirming the decree and appellate order. At that stage the respondents did not raise any issue with respect to sale or otherwise of the lands in question. The petitioners thereafter filed an application for fixation of rent which has now travelled up to this Court. 3. As stated, the Circle Officer found on the basis of the report of the Halka Karamchari found that the petitioners are in possession of the said land and fixed the rent of the lands in question. Against the order of the Circle Officer, the private respondents have filed appeal and revision. The orders of the Additional Collector, the D.C.L.R. and the Commissioner indicate that the three Courts have gone behind the orders of this Court and have come to a conclusion 3 that the lands remained in the joint name of the parties and they were jointly in possession of the land. The D.C.L.R. has noticed that a sale deed was executed by the petitioners in favour of Sarjug Lal however, Sarjug Lal was never noticed in the matter. The respondents on the other hand by filing a supplementary counter affidavit have stated that they have stepped into the shoes of Sarjug Lal. A reply to the supplementary counter affidavit indicates that the son of Sarjug Lal has sworn an affidavit stating that the petitioners had taken a loan of Rs. 20,000/- from Sarjug Lal and as a security a sale deed was executed showing the value of the land of Rs. 200/-. Subsequently the sale deed was never acted upon and the said Sarjug Lal never came into possession of the land in question. 4. In a case for fixation of rent, the Court has to decide the possession of the persons concerned. On the basis of the surmises and presumptions, the D.C.L.R., the Additional Collector or Commissioner could not have held that the property is jointly possessed by the petitioners and the private respondents. Surprisingly at that stage the respondent nos. 6 and 7 had not filed any document to show that they have purchased the lands from Sarjug Lal or brought the copy of the sale deed of Sarjug Lal on record. On the other hand, Sarjug Lal has not come forward to make any objections in this case. I may highlight the fact that if the respondents had actually purchased the land from Sarjug Lal or that if Sarjug Lal had the valid sale deed, the respondents would have informed Sarjug Lal regarding the present proceedings, as such even though he was not made party, no steps 4 were taken on behalf of Sanjay Lal or the respondents to add him as party. The authorities had to decide whether the petitioner was in possession of the land. This fact is admitted by the respondents, as it is admitted that the petitioner came into possession after filing the execution case. The findings of the three quasi judicial bodies are not sustainable in view of the fact that the respondents’ claim is not on the basis of any sale deed rather the Courts have held him to be in joint possession by stating that it is a joint family property. 5. I find that the reasonings of the three Courts in the impugned orders are defective for the reasons stated above. In the result, I quash the orders dated 1.8.1990, 22.7.1989 and 4.7.1984. The order of the Circle Officer is restored and he should take steps in accordance with his order fixing the rent in Mutation Case No. 296 of 1983-84/Rent Fixation Case No. 11 of 1983-84. 6. This application is allowed. Patna High Court, The 24th of June, 2010 N.A.F.R./Sanjay (Sheema Ali Khan, J.)