IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9134 of 2010 Ramakant Mandal @ Mahant Ramanand Das Bapu, Son of Late Ram Ayodhya Mandal, Resident of Village Usari, PS Biraul, District Darbhanga at present residing at Mora Tekra, P.O. Mora, P.S. Ikshapur, District Surat (Gujrat) through his Chela Ram Karan Mandar, Son of Late Ram Ayodhya Mandal, Resident of Village Usari, P.S. Biraul, District Darbhanga. ------ Petitioner. Versus 1. The State of Bihar. 2. Additional Collector, Darbhanga. 3. Anchaladhikari, Baheri, District Darbhanga. ------ Respondents. ----------- 3 16.12.2011 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. The petitioner has challenged the order dated 22.4.2010, passed by the Additional Collector, Darbhanga by which he has held that lands appertaining to Khata No. 49, Khesra No. 9089 old (7696 new) and lands appertaining to Khata No. 117, Plot No. 9092 old (7695 new) are ‘Gair Mazarua Aam’ lands and as such the petitioner has no right to remain in possession over the said lands. The appeal in the encroachment proceeding has thus been dismissed by the Additional Collector, Darbhanga. It may be mentioned here that the total lands involved as per the case of the petitioner is 1 Katha. The main attempt on behalf of the 2 petitioner is that he assails the order by submitting that the Additional Collector, Darbhanga had no authority to order the Circle Officer, Baheri, District Darbhanga to cancel the Jamabandi which has been opened in the name of the petitioner. It has been argued that the provisions of Bihar Encroachment Act would not apply in a case where there is disputed question of title involved. The case of the petitioner is that although in the cadastral survey the land was recorded as ‘Gair Mazrua Aam’, it was subsequently corrected during the revisional survey and Plot Nos. 7696 and 7695 were recorded in the name of Bhola Kamati. Accordingly, Jamabani was opened and Bhola Kamati was paying rent to the State of Bihar. In the year 1998, the petitioner is said to have purchased about 1 Katha of land from Bhola Kamati which includes the lands under dispute. Learned counsel for the petitioner has produced before this Court the revisional Khatiyan of the aforesaid plots which indicates that the land in question was 3 recorded in the name of Bhola Kamati. The total land of Bhola Kamati is 6.024 decimals. After the petitioner had purchased the land in the year 1998, Jamabandi was opened in his name and he has been paying rent to the State of Bihar. On the basis of the aforesaid facts, counsel for the petitioner submits that he has a valid title over the lands in question. In this case, it may be noted that Bhola Kamati has not been called upon to answer as to how he came to be in possession of the said lands or how his name was entered in the revisional survey. The order of the Additional Collector, Darbhanga to the extent that he has dismissed the appeal without considering any of these facts seems unwarranted. The Additional Collector, Darbhanga or for that matter the Circle Officer ought to have immediately issued notice to Bhola Kamati, called for the records by which the name of Bhola Kamati was entered in the Jamabani register and the records with respect to the revisional survey to ascertain the case made out by the petitioner or his predecessors in 4 interest. Learned counsel for the petitioner relies on a judgment of this Court in the case of Nagendra Mistry Vs. The State of Bihar [2000 (1) PLJR 209] to submit that where a person acquires title on the public property (Gair Mazarua Aam) cannot be evicted, due to afflux of time, as he would have perfected his right on the land by being in possession for several years. In the case aforesaid, there was an encroachment proceeding which was brought against the petitioner in the year 1985 which was subsequently dropped. The petitioner Nagendra Mistry had thus remained in possession for over 40 years. In the aforesaid circumstances, this Court held that where a person acquires right over the property due to afflux of time, such matters cannot be decided in a encroachment proceeding. In the present case, however, the facts are different and, therefore, the judgment quoted aforesaid would not apply to the case of the petitioner. However, for reasons recorded earlier, I quash the order dated 22.4.2010 5 passed by the Additional Collector, Darbhanga and remit the entire matter back to the Additional Collector, Darbhanga who shall call for the records as indicated above, issue notice to Bhola Kamati and after hearing the petitioner and Bhola Kamati pass appropriate order. I may also make it clear that the petitioner would be at liberty to approach the Civil Court to establish his title over the said lands in question irrespective of the land encroachment proceeding. This writ application is thus, disposed of with the aforesaid observations and directions. Sanjay (Sheema Ali Khan, J.)