IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12206 of 2003 1. Smt. Sita Devi, daughter of Shri K.P. Singh, residing at B/43, Housing Colony, Kankarbagh, P.S. Kankarbagh, District-Patna. 2. Smt. Sushila Devi, daughter of Gagan Nath Singh, residing at B/43, Housing Colony, Kankarbagh, P.S. Kankarbagh, District-Patna. ..............Petitioners. Versus 1. The State of Bihar 2. Secretary, Department of Revenue and Land Reforms, Government of Bihar, Patna 3. Collector, Patna 4. Additional Collector, Patna 5. D.C.L.R., Patna 6. Circle Officer, Patna Sadar, Patna ............Respondents. ----------- For the Petitioners : Mr. Basant Kumar Choudhary, Sr. Adv. Mr. Rajesh Prasad Choudhary, Adv. For the State : Mr. A. Amanullah, G.A.-4 with Mr. Anuj Kumar, A.C. to G.A.-4 ---------- 7/ 18.01.2011 Heard the parties. 2. The petitioners have filed the present writ petition under Article 226 of the Constitution of India raising a grievance with respect to a communication contained in Memo No. 1536 dated 18.01.2003 (Annexure I) issued by respondent District Collector, Patna and addressed to the Vice-Chairman of Patna Regional Development Authority, Patna/District Sub-Registrar, Patna and respondent Anchal Adhikari, Patna Sadar, whereby a direction was issued that 2 there shall be no registration, mutation or sanctioning of the map for the purpose of construction of any house/building, with respect to lands bearing khata no. 316 appertaining to plot no. 825 area 9.65 acres situate at Mauja Sadikpur Jogi in the town of Patna. 3. The petitioners are not claiming the entire area of 9.65 acres of lands, rather their claims are confined with respect to 22 decimals only, which they claim to have acquired by virtue of registered deed of sale dated 20th February 1982 from one Rajendra Prasad, S/o Shri Kishun Mahto. During the pendency of the present writ petition, it transpired that respondent Anchal Adhikari has started Jamabandi Cancellation Case No. 81 of 2004-05 against petitioner no. 2 and Jamabandi Cancellation Case No. 82 of 2004-05 has been started against petitioner no. 1. In that view of the matter, I.A. No. 6125 of 2004 was filed on behalf of the petitioners seeking amendment in the writ petition and permission was sought to challenge the validity of the aforesaid proceeding started by respondent no. 6 against the petitioners. Notices issued in the aforesaid Jamabandi Cancellation Case No. 81 of 2004-05 and 82 of 2004-05 have been brought on record as Annexures 6 and 7 3 respectively in the aforesaid Interlocutory Application No. 6125 of 2004. For the reasons disclosed in the aforesaid interlocutory application, prayer for amendment is allowed and petitioners are permitted to challenge the validity of the notices issued in the aforesaid two Jamabandi Cancellation Case No. 81 of 2004-05 and 82 of 2004-05. 4. The facts involved in this case are not much in controversy. According to the petitioners also lands of C.S. plot no. 825 was recorded as gairmajarua aam talab in the cadestral survey khatiyan prepared in the year 1911. However, as per claim of the petitioners, subsequently it lost its character and the talab (tank) lost its existence. The lands of C.S plot no. 825 area 9.65 acres was settled by the ex- landlord in favour of one Kishun Mahto through different deed of settlement of the years 1942 and 1943. The aforesaid settlee allegedly came in possession over the lands in question and in the return filed by the ex-landlord at the time of vesting of Zamindari, the aforesaid settlee was shown to be raiyat of the lands in question. It is also the case of the petitioners that Jamabandi was created in favour of original settlee, Shri Kishun Mahto and rent was paid by him and rent receipts were issued by the Revenue officials 4 of the respondent State. After death of Shri Kishun Mahto, the original settlee, he was succeeded by his legal heirs including his son, namely, Shri Rajendra Prasad. As per claim of the petitioners, they also continued in possession over the lands in question. 5. However, it appears that subsequently some dispute arose between the official respondent at one side and the original settlee, Shri Kishun Mahto at the other side regarding right and title over the lands in question. Consequently, aforesaid Kishun Mahto filed Title Suit No. 25 of 1965 / 25 of 1973 seeking declaration of right, title and possession over the lands in question including the area of land claimed by the petitioners. However, after the death of Kishun Mahto, he was substituted by his legal heirs including his son, Rajendra Prasad and title suit proceeded further in the Court of Additional Sub-Judge VI, Patna. In that title suit, the State of Bihar was the sole defendant. By referring to Annexure 2, it is submitted that after hearing the parties, the aforesaid title suit was decreed with cost and the plaintiffs’ right and title with respect to entire suit land including the right of fisheries was declared. The defendant was injuncted from interfering with the possession of the 5 plaintiffs by making any settlement of the tank, which was subject matter of the suit besides, other area of the land. 6. It is the case of the petitioners that no appeal against the aforesaid judgment and decree dated 27.09.1975 (Annexure-2) was preferred by the respondent State and, as such, it has attained its finality. In view of the aforesaid judgment and decree passed by the Civil Court declaring the right and title of the plaintiffs of that suit, both the petitioners claim to have purchased 11 decimals each from plot no. 825, which was belonging to aforesaid Rajendra Prasad, s/o Shri Kishun Mahto. It is also claimed that after the aforesaid purchase, the name of the petitioners were mutated with respect to lands claimed by them and they are paying rent to the State of Bihar and rent receipts are being issued in their favour and they are coming in possession over the same. Suddenly, the impugned original order dated 18.01.2003 (Annexure I) was issued at the instructions and directions of the then Minister of Revenue, Government of Bihar, which, according to the petitioners, were wholly unjustified. 7. A counter affidavit has been filed on behalf of the respondent nos. 3 to 6 stating therein that the lands of khata 6 no. 316 appertaining to plot no. 825 area 9.65 acres situate at Mauza Sadikpur Jogi is a gairmajarua aam land, over which a tank is also situate. It is also claimed that one Kishun Mahto was settled only watery portion of the tank as sairat on annual rental basis and, therefore, according to the respondents, Jamabandi in favour of aforesaid Kishun Mahto and his legal heirs was unauthorisedly created and that is required to be cancelled. It has not been disputed in the counter affidavit that Jamabandi Cancellation Case No. 81 of 2004-05 and 82 of 2004-05 have not been started by respondent Anchal Adhikari. 8. Mr. Basant Kumar Choudhary, learned Senior Counsel, appearing on behalf of the petitioners, submits that once a judgment and decree has been passed by a Civil Court of competent jurisdiction declaring the right and title of plaintiff, Rajendra Prasad and others with respect to lands in question, then the respondent State and its officials are not at all justified in issuing the impugned original notice/communication dated 18.01.2003 (Annexure 1) or starting a proceeding for cancellation of jamabandi of the petitioners with respect to purchased area of lands by them. It is further submitted that the petitioners having purchased 7 the lands from the decree holder on payment of valid consideration money through registered deed of sale in the year 1982, they acquired their perfect right and title over the area purchased by them. 9. Learned Assistant Counsel to G.A. 4 has opposed the prayer made in the petition and submitted that if proceeding for cancellation of jamabandi is pending, then the petitioners must exhaust that remedy and they may be directed to submit their show case before respondent Anchal Adhikari, who may look into the grievances of the petitioners and may come to a final conclusion. 10. After having heard the parties at length and after considering the materials available on record, this court is of the considered opinion that the petitioners must file their show cause in the Jamabandi Cancellation Case No. 81 of 2004-05 and 82 of 2004-05 initiated against the petitioners, which are said to be pending before the Anchal Adhikari, Patna Sadar. The petitioners would be well advised to bring to the notice of the respondent Anchal Adhikari that a decision by a Civil Court of competent jurisdiction is already there with respect to lands in dispute, in which the State of Bihar was also a party. Since the 8 judgment and decree passed by the Civil Court were not challenged by the respondent State by filing any appeal, therefore, it would not be open for the respondent State and its officials to treat the lands in question as a gairmajarua aam land. The petitioners may also bring to the notice of Respondent No. 6 some other documents including the letter contained in Annexure 4 written by the respondent Anchal Adhikari himself to the Additional Collector, Patna dealing with respect to the status of the lands in question. 11. If show cause is filed by the petitioners before respondent no. 6, then he would be obliged to consider all the issues raised on behalf of the petitioners and pass a speaking order in the aforesaid two proceedings. The petitioners are hereby directed to file their show cause within a period of three weeks from today, whereafter respondent no. 6 would be obliged to take into consideration the aforesaid show cause and give an opportunity to the petitioners to produce all other relevant documents in support of their claim with respect to lands in question. It is expected that after hearing the parties and after considering all the materials, the final orders would be passed by Respondent No. 6 within three months from date of filing of 9 the show cause by the petitioners. 12. It is made clear that this Court has not gone into the merit of the case. The observations made in this order are only for the purpose of recording the case of the parties as per their pleadings. The respondent no. 6 shall be obliged to apply his independent judicial mind to the facts of the case ignoring the direction of the then Revenue Minister on the basis of which communication dated 18.01.2003 (Annexure-1) was issued. Till the matter is finally decided by the respondent Anchal Adhikari, the order contained in Annexure 1 shall be kept in abeyance. 13. With the aforesaid observations/directions, the present writ petition stands disposed of. Anjani/Narendra ( Birendra Prasad Verma, J )