Letters Patent Appeal No. 1393 OF 1998 (Against the judgment and order dated 13th October, 1998 passed in C.W.J.C. No. 3157 of 1994) KAMALA SAH S/O RAM BRIKSHA SAH, R/O VILL. GOHI, P.O. BARAON KALAN, P.S. DEHRI, DIST. ROHTAS. -------(Writ Petitioner/Appellant) -:Versus:- 1. THE PRINCIPAL, CONSOLIDATION TRAINING INSTITUTE, PATNA. 2. DEPUTY DIRECTOR, CONSOLIDATION, ROHTAS. 3. THE CONSOLIDATION OFFICER, DEHRI, ROHTAS. 4. MOSSOMAT PAWDHARO KUER, WIDOW OF LATE RAM MURAT SAH, R/O OF VILL. AIYAR KOTHA, P.O. DARIHAT, P.S. AIYAR KOTHA, DIST. ROHTAS. 5. BHAGIRATH SAH 6. SARWAN KUMAR, BOTH SONS OF LATE RAM MURAT SAH RESIDENT OF VILL. AIYAR KOTHA, POST OFFICE-AIYAR KOTHA, POLICE STATION DARIHAT, DISTRICT-ROHTAS. 7. SONAPATI KUMARI WIFE OF SURESH SAH, RESIDENT OF VILL. NAWADIH, POST OFFICE MEYARI, DIST. ROHTAS. 8. CHANDRAWATI KUMARI, RESIDENT OF VILL. CHANDI POST OFFICE NAWAR, POLICE STATION NAWAR, DIST. ROHTAS. 9. MANRAUTI KUMARI, R/O VILL. SASULPUR, P.O. RASULPUR BANZARI, P.S. BANZARI, DIST. ROHTAS. 10. PARBATI DEVI WIFE OF RAJNATH SAH R/O VILL. NAWADIH, P.O. GAMHARIYA, VIA-AKORHI GOLA, P.S. AKORHI GOLA, DIST. ROHTAS. 11. MUNSI SAH SON OF LATE SHEO GOVIND SAH (DECEASED) 12. GULAB CHAND SAH SON OF LATE SHEO GOVIND SAH 13. BELASH SAH SON OF MUNSI SAH 14. GURU CHARAN SAH SON OF LATE SHEO GOVIND SAH NUMBERS 11 TO 14 ARE RESIDENT OF VILLAGE BARAON KALAN, POST OFFICE BARAON KALAN, POLICE STATION AKORHI GOLA, DIST. ROHTAS. 15. SITA RAM SAH SON OF LAKSHAMI NARAIN SAH, RESIDENT OF VILLAGE DARIHAT, POST OFFICE-DARIHAT, POLICE STATION DARIHAT, DIST. ROHTAS. ------- RESPONDENTS. ***** Counsel for the Appellant/Writ Petitioner : Mr. Deo Govind Prasad, Adv. Mr. Ravindrajee Sahay, Adv. Counsel for the State : Mr. Shashi Bhushan Kumar, S.C.-16. Counsel for the Respondents : Mr. Janardan Singh, Advocate. 2 *** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL ** Kishore Kumar Mandal, J. Unsuccessful writ petitioner has filed intra- court appeal calling in question the order dated 13th October 1998, passed by a learned Single Judge in C.W.J.C.No. 3157 of 1994, whereby the writ petition was dismissed. The matter arises out of the proceedings taken up by the writ petitioner under the Bihar Consolidation of Holdings & Prevention of Fragmentation Act, 1956 (for short the ‘Act’). The father of the writ petitioner and husband of respondent no.4 were full brothers. It is the case of the writ petitioner that the other three brothers separated from the joint family, but Ram Briksha Sah (father of the writ petitioner), and Ram Murat Sah (husband of respondent no.4), remained joint. They jointly constructed a house and purchased certain pieces of land in village Aiyar Kotha. In the year 1968, a dispute had arisen between them and both of them agreed to give their respective shares/properties of village Aiyar Kotha, and accordingly a registered deed of relinquishment was executed on 18.06.1969, but was subsequently cancelled by yet another cancellation deed on 12.07.1969 ( Annexure-2). The writ 3 petitioner thereafter filed a Title (Partition) Suit being Title (Partition) Suit no. 206/1969 in the Court of learned Sub-Judge, Sasaram, for partition of the moveable and immovable properties fully descried in schedule ‘Ka’ and ‘Kha’ of the plaint ( the disputed property). The suit was dismissed for default on 18.05.1973. A restoration petition was filed for revival of the suit which was also dismissed, vide Order dated 23.05.1978. The writ petitioner has enclosed a photo copy of the said order dated 23.05.1978, annexure-3 to the writ petition. The village(s) in question was notified under the provisions of the Act. It appears that the consolidation scheme was carried out and after inviting objections etc; final records of right in terms of Section 15(1) of the Act was prepared wherein certain lands were recorded in the name of writ petitioner or his father and similarly certain pieces of land was/were recorded separately in the name of the husband of respondent no.4 as also in the name of respondent no.4 as she claimed the property to be her ‘Stridhan’. Thereafter, it appears the petitioner approached respondent no.1 ( revisional authority) by filing Revision application bearing no. 761 of 1979, seeking insertion of his name along with the name of the husband of respondent no.4 in respect of those land/building. The Director of Consolidation, by an order dated 20.07.1982 (Annexure-4), disposed of the said revision application directing the respondent Consolidation Officer to take appropriate decision as per the provisions of law. The respondent Consolidation Officer 4 registered a case vide case No. 50/1984-85, with regard to the land of village Mariar and after hearing the parties rejected the same by an order dated 21.03.1985, ( annexure-5) on the ground that village in question had already been confirmed and as such he had no jurisdiction. Aggrieved by the said order, the writ petitioner preferred appeal being appeal no. 56/1985-86. The respondents to the appeal appeared in the said proceeding and filed documents and took the stand that there was already partition between the two brothers way back on 28.12.1959. It was further contended that the writ petitioner had already filed a Title (Partition) Suit which stood dismissed. Both the parties filed their respective documents. The Appellate Authority vide order dated 11.06.1986 ( Annexure-6), dismissed the aforesaid appeal concluding therein that partition between the two brothers had already taken place in the year 1959, and some property under dispute was ‘Stridhan’. Writ Petitioner thereafter preferred Revision Case No. 2111 of 1988, before respondent no.1. Both parties appeared in the said proceeding and filed their respective documents. It is relevant to note here that the petitioner had also filed an objection under Section 10(B) of the Act with regard to some of the lands located in different village. The said objection was rejected by the Consolidation Officer under order dated 14.06.1990. Aggrieved thereby an appeal bearing No. 347/90-91 was preferred by the writ petitioner which again was dismissed by the appellate authority under 5 order dated 15.05.1991 ( Annexure-8). Against the aforesaid order dated 15.05.1991, the petitioner filed yet another revision bearing No. 939/91, before respondent no.1. Both the aforesaid revision applications were considered together and respondent no.1, exercising powers under Section 35 of the Act, rejected the same by order dated 15.05.1993, ( annexure-9). Learned counsel for the appellant (writ petitioner), while assailing the order under appeal, submitted that the learned authorities under the Act committed serious error in not appreciating the evidence which were laid before them in terms of the Provisions of the Evidence Act. It is further contended that there is presumption of jointness in the Hindu Family, and as such, the onus was on the respondents to prove conclusively that there was partition in the family. Learned counsel appearing on behalf of the respondents, however, supported the impugned order passed by the different authorities under the Act. It has been submitted that the appellant( writ petitioner) having failed in the suit, approached the authorities under the Act for entering his/their names in respect of the lands/buildings which were recorded separately in the name of the respondents. It is next submitted that the revisional authority, being the final forum of facts, has already considered the claim/ counter claim of the parties and has come to the conclusion that the lands in question cannot be said to be the property jointly held by writ petitioner and the 6 respondents. It is next contended that the issues are now concluded by the finding of fact and the writ Court has rightly refused to interfere. Learned counsel for the respondents further submitted that the provisions contained under Section 8(A) of the Act contemplates partition of share only when there is agreement between the parties. In case of dispute, the remedy available to the parties is only by instituting suit in the Court of competent jurisdiction. Here is a case where the writ petitioner had earlier approached the Civil Court by filing a partition suit which was dismissed. We have perused the materials available on record and considered the submissions advanced on behalf of the parties. There can be no dispute over the settled principle of law that the writ Court should not normally entertain issues of facts. It appears from the revisional order (annexure-9) that the parties were given ample opportunities to file their respective documents and make submissions. The learned revisional authority (respondent no.1) considered those documents and the submissions of the parties and recorded a finding adverse to the writ petitioner. It further appears that the writ petitioner had preferred a Title (Partition Suit) in the Court of Competent jurisdiction way back in 1969, which was dismissed for non- prosecution. A restoration application was also filed which again was dismissed sometimes in 1978. In this factual background, the learned Single Judge did not interfere with the orders under 7 challenge in the writ petition, as there was no material to show that after separation of the brothers in the year 1955, the two brothers (father of the writ petitioner and husband of respondent no.4) remained joint. The learned Single Judge further found that the analogues Revision No. 939/1991 was, in fact, not maintainable as there was no fresh cause of action in the year 1989-90, permitting the writ petitioner to file an application under Section 10(B) of the Act. This Court does not find any infirmity in the impugned order meriting interference. This appeal is fit to be dismissed. There is yet another aspect of the matter which disentitles the writ petitioner from seeking relief from this Court. Wirt petitioner invoked Section 8A of the Act which is reproduced hereinbelow: “8A. Partition of joint holdings-(i) The Assistant Consolidation officer or the Consolidation Officer may, either on an application or of their own motion, partition joint holdings. (2) The partition of joint holdings shall be effected on the basis of shares: Provided that where the raiyats concerned agree, it may be effected on the basis of specific plots”. A bare perusal of the Provision indicates that the jurisdiction has been conferred on the authorities under the Act to effect partition as per shares in respect of lands recorded jointly only in cases of agreement between the parties. If certain objection/dispute is raised based on facts, then the only course open to the party was/is to seek remedy before the Civil Court 8 which in the present case was, in fact, resorted to. The writ petitioner having failed to get his rights determined in the said suit, invoked the jurisdiction of the Consolidation Authority under Section 8A of the Act after conclusion of the entire consolidation operation. In that view of the matter also, the present appeal is fit to be dismissed. In the result, this Court finds no merit in the appeal and is accordingly dismissed. However, there shall be no order as to costs. I agree S.K.Katriar, J:- The Patna High Court, Dated 7th November., 2009 Sym/NAFR (Kishore K. Mandal, J.) (S.K.Katriar, J.)