CIVIL WRIT JURISDICTION CASE No.8987 OF 1989 In the matter of an application under Articles 226 and 227 of the Constitution of India. … 1(a) Vijay Kr. Thakur, 1(b) Ravindra Singh, 1 © Binay Kr. Thakur, 1(d) Bhrgu Thakur, 1(e) Bipan Thakur, all sons of Late Smt. Chandrakala Devi, village Bandih, PS Tajpur, District Samastipur – Petitioners. Vs. 1. The State of Bihar, 2. The Joint Director Consolidation, Purnea, Head Quarters at Patna. 3. The Deputy Director of Consolidation, Samastipur. 4. The Consolidation Officer, Tajpur, Morwa, Dist. Samastipur. 5. (a) Jogmaya Devi, wife of Late Ram Prit Thakur, 6. (b) Parbati Devi, wife of Ram Shankar Thakur, daughter-in-law of Late Ram Prit Thakur. 7. © Bachchi Devi, daughter of Late Ram Prit Thakur – Respondents. … For the petitioners : Mr. Shyam Sundar Shyam, Advocate. For the private respondents: Mr. Kesho Shrivastava, Senior Advocate and Mr. Bhubneshwar Prasad, Advocate. For The State Ms. Juhi Kumari, A. C. to S.C. III. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. The petitioners seek to challenge the order of the Joint Director Consolidation passed on 31.8.1989 rejecting their claim. The impugned order has set aside the order of the Additional Collector Incharge, Flying Squad Consolidation passed in Consolidation Case No. 248/1978. 2. The facts of the case are that Chhedi Thakur had two sons, namely, Laxmi Narain Thakur and Ram Prit Thakur (deceased respondent no.5). Laxmi Narain Thakur died leaving behind his widow Subhago Devi who died in 1966. The original petitioner Chandrakala 2 Devi (now substituted by her heirs) is the daughter of Subhago Devi. 3. The case of the petitioners is that Laxmi Narain Thakur died in the year 1938. Before his death in 1938 there was a partition between Laxmi Narain Thakur and Ram Prit Thakur. Due to illness of Laxmi Narain Thakur, Ram Prit Thakur looked after the properties on behalf of his brother and taking advantage of the illness of Laxmi Narain Thakur, Ram Prit Thakur got his name entered in Register „D‟. It is the case of the petitioners that in the recent revisional survey which took place much before 1969, the name of Subhago Devi and Ram Prit Thakur were jointly entered in the records. Ram Prit Thakur filed an application under section 103 of the Bihar Tenancy Act to get the records corrected stating therein that Subhago Devi had died issueless and as such the name of Subhago Devi should be deleted. The order dated 26.4.1969 is in favour of the respondents which is contained in Annexure „G‟ to the counter affidavit. It is, thus, the case of the petitioners that Subhago Devi by virtue of Hindu Womens Succession Act, 1956 had become the absolute owner of the property belonging to her husband along with her daughter. 4. The case of the respondents, on the other hand, is that Laxmi Narain Thakur and Ram Prit Thakur were in joint possession of the lands in question. Laxmi Narain Thakur died in the year 1932 and as such his widow did not inherit any part of her husband‟s share and was only entitled to maintenance. It has further been stated that the respondent got his name recorded after making correction by virtue of a proceeding under section 103 of the Bihar Tenancy Act and has been 3 paying rent and Chowkidari receipts have been granted by the State of Bihar. 5. The original petitioner Chandrakala Devi filed an application under section 10(6) of the Consolidation Act before the Consolidation Officer which was registered as Case No. 8/1977. By order, dated 10.12.1977 the Consolidation Officer allowed the prayer of the petitioner and directed that the names of Chandrakala Devi and Ram Prit Thakur should be recorded with respect to the lands in question. Against the order passed by the Consolidation Officer, the respondent filed an appeal which was dismissed on 3.5.1978. The respondent then filed a revision application vide Case No. 248 of 1978- 79 which was disposed of in favour of the petitioner by order, dated 7.3.1983. The respondent being aggrieved by the orders aforesaid moved this court in CWJC No. 2005/1983. This court quashed the order of the Joint Director and remanded the matter to the Joint Director for rehearing and disposal in accordance with law after considering the documents filed on behalf of both the parties. 6. It is interesting to note, that after the order of remand the matter went before the Joint Director who by order, dated 28.9.1984 remanded the matter back to the Deputy Director with a direction that evidence, both oral and documentary, should be led with respect to the date of death of Laxmi Narain Thakur, as well as evidence was to be gathered regarding the extent to which Subhago Devi came into possession of the lands in question. The matter then came to be heard by Sri R.B. Mahto, Additional Collector, Incharge Flying Squad 4 (Consolidation). While hearing the matter the Additional Collector (Consolidation) has observed that this matter has come up after remand from the High court and thereafter by an order of remand by the Joint Director Consolidation to be disposed of by the Deputy Director Consolidation, Samastipur. As there was an objection, the matter was transferred to the Deputy Director, Sitamarhi. The parties again objected to the matter being heard by the authorities at Sitamarhi and thereafter it was transferred to the court of the Additional Collector, Incharge Flying Squad (Consolidation). The Additional Collector has noted that the question to be decided was whether Laxmi Narain Thakur died in 1934 or in the year 1938? Having posed the question, the Additional Collector (Consolidation) found that on the basis of the evidence led by the parties, it could not be decided conclusively as to whether Laxmi Narain Thakur died in the year 1934 or 1938. The Additional Collector (Consolidation), therefore, has based his findings on the subsequent events, that is, the entry in the revisional survey in favour of Subhago Devi and Ram Prit Thakur and has also considered that the correction made under section 103 of the Bihar Tenancy Act was without notice to the petitioner, on the basis of a statement, that Subhago Devi had no heirs, as such has held in favour of the petitioner. 7. Against the order passed by the Additional Collector, dated 31.8.1989, a revision application was filed before the Joint Director Consolidation which is the impugned order. 8. The revisional court has come to finding that Ram Prit Thakur died in 1938 and as such Subhago Devi would have no right in 5 the properties of her husband, after considering the rent receipts, the correction made under section 103 of the Bihar Tenancy Act and the Chowkidari receipts. 9. The evidence led by the petitioner and the respondents with respect to the death of Laxmi Narain Thakur is that both the parties have filed affidavits of the villagers to show that Laxmi Narain Thakur died in the year 1938 and 1934 respectively, according to the case of the parties. In addition thereto it appears that the respondents have filed Khathchitha by the Chowkidar in which it is supposedly recorded that Laxmi Narain Thakur died in 1934. This document, however, has been rejected by the Joint Director on the ground that it is a very old document which is faded and one cannot decipher the statements made in the document. Like the Additional Collector, the Joint Director Consolidation could not come to a conclusion on the basis of the aforesaid documents regarding the date of death. Therefore, a spot enquiry was allegedly conducted in which about 27 villagers were examined and the Joint Director has recorded that the majority of the villagers have stated that Laxmi Narain Thakur died in the year 1934. On the basis of the aforesaid spot verification and the alleged statement of the villagers which are not really discussed in the order sheet, the Joint Director passed an order in favour of the respondents. The so called enquiry report has not been brought on record which could have indicated whether infact statements of the villagers were reduced in writing, in the presence of both the parties and duly signed by them. The presumption, therefore, is that the statements were not 6 reduced in writing. I would go so far as hold, that even if the so called evidence of the villagers was reduced in writing, it cannot for the purpose of deciding the date of death be termed to be piece of evidence under Section 60 of the Evidence Act. 10. I may clarify here that if the revisional authority had conducted a spot verification, they ought to have directed the persons who had appeared to file affidavits and recorded their statements in writing before concluding that Laxmi Narain Thakur died in the year 1934. Such statements made without an opportunity to cross examine the witnesses can hardly be considered as reliable evidence to indicate the date of death of a person, which in this case, is the sole consideration for deciding whether the petitioner would have a right in the properties. 11. The court has also referred to a Kewala executed in the year 1933 which indicates that the respondent was a minor in 1933 and the Kewala was executed by Laxmi Narain Thakur to show that there was no partition between the two brothers. At the same time the court has not considered that in 1934 the respondent executed a sale deed with respect to some of the lands in question. This court finds that both these documents contradict each other, inasmuch if the respondent was a minor in 1933, he could not have executed sale deed in 1934. There are lacunae in the case of the respondent as it does not indicate the date on which he became major, which would lend authenticity to the documents produced by him. 12. This court certainly cannot rely on the proceedings 7 under section 103 of the Bihar Tenancy Act. The respondent filed an application stating that Subhago Devi did not have a child and as such Ram Prit Thakur was the only person in whose name the lands ought to have been recorded. The statement is obviously false as Ram Prit Thakur has admitted that Chandrakala Devi is daughter of Subhago Devi which was initially denied by him. Any document which gives benefit to a person, which has been obtained on the basis of a false statement, has to be rejected by this court. Rent receipts granted in favour of the respondent on the basis of proceeding under section 103 of the Bihar Tenancy Act, likewise have no value in the eye of law because they have been obtained on the basis of an order which ab initio was made on the basis of the incorrect statement. 13. It has been admitted by the respondent with respect one plot of land that it came in possession of Subhago Devi, inasmuch as it was recorded in her name i.e. Khata no. 153. The respondent states to this extent that Chandrakala Devi petitioner would in fact be entitled to claim that a Chak be created in her favour with respect to plot no. 153. 14. Considering the entire materials that has come before the authorities below and specially the order impugned, which is perhaps the only order in favour of the respondent, this court finds that the material which has been considered for the purpose of defeating the rights of the petitioner, which is the spot verification, is insufficient and cannot be considered as evidence to prove the date of death of Laxmi Narain Thakur or the possession of the respondents. The case of the 8 respondent that the case of Subhago Devi is not covered under section 14(1) and 14(2) of the Hindu Womens Succession Act, 1956, thus, fails for the reasons mentioned aforesaid. 15. It has vehemently been argued on behalf of the respondent that Subhago Devi has not been able to show by evidence that by virtue of her right to maintenance, she came in possession of a particular share of land. This question was not argued by the respondent in the court below. It is accepted by the respondent that Subhago Devi lived with him during her life time, and that he performed the Saradh on her death. If the case of the respondent is to be accepted, then it is to be held that in a joint Hindu family the concept is that the possession of Karta of the family would be possession of all the family members. 16. On the other hand the petitioners‟ claim that there was a partition between her husband and Ram Prit Thakur during the life time of her husband, is somewhat substantiated by the fact that at the time of revisional survey the name of respondent was recorded along with her name. Also the fact that the application made for correction under section 103 of the Bihar Tenancy Act was made on the basis of the fact that Subhago Devi did not have any heir and as such Ram Prit Thakur was claiming the entire lands by virtue of survivorship, which is somewhat opposed to his case that Subhago Devi did not get a share or was not in possession of the property in question. I, thus, find that the order of the Joint Director Consolidation holding that Ram Prit Thakur is entitled to get his name recorded is 9 unjustified and is not based on cogent material. 17. Certain other points have been raised by counsel appearing on behalf of the petitioner. It has been argued that the order passed by the Additional Collector appears to have been passed under section 35 of the Consolidation Act inasmuch as he has observed as follows : “DONO PARTY KE VIDYAWAN ADHIWAKTA KO SUNA TATHA DAKHIL KAGZAT KA AWLOKAN KIYA. VIVADGRAST ZAMIND MAUZA CHANDI, ANCHAL TAJPUR ZILA SAMASTIPUR MAIN AWISTHIT HAI. SHRI K.K.PRASAD, SANYUKTA NIDESHAK CHAKBANDI, MUZAFFARPUR NE DINAK 7.3.83 KO DHARA 35 KE ANTARGAT SAMBANDHIT VIVAD MAIN AADESH PARIT KIYA THA. IS AADESH KE VIRIDH CWJC NO. 2005/83 DAYAR KIYA GAYA JIS MAIN DINAK 3.7.83 KO PARIT AADESH KO KHARIJ KIYA GAYA EWAM NAI SIRE SE DONO PARTY KE SABOOTON PAR VICHAR KAR AADESH PARIT KARNEY KAIN LIYE YEH CASE SANYUKT NIDESHAK KO REMAND KIYA GAYA THA. SANYUKT NIDESHAK, MUZAFFARPUR NE IS VAAT KO NISPADAN KE LIYE UP NIDESHAK, CHAKBANDI. SAMASTIPUR KO REMAND KIYA KINTU AAPATTI PAR OON SE WAPAS LE KAR ISE UP NIDESHAK, SITAMARHI KO OONHO NAY REMAND KEYA. IS PAR BHI AAPATTI PARI JIS PAR UP NIDESHAK, SITAMARHI SE ISE WAPAK LE KAR IS NYAYALAY MAIN NISPADAN KE LIYE BHEJA GAYA HAI.” 10 18. It is, therefore, submitted that the order, dated 31.8.1989 passed by the Joint Director is a review of the order of the Additional Collector, dated 5.1.1988. Counsel for the respondent, however, submits that the order, dated 5.1.1988 has been passed after the order remand, dated 28.9.1984 passed by the Joint Director contained in Annexure „A‟. This court agrees with the submissions made on behalf of the respondent. The nomenclature under which an order is passed is not of foremost importance, Annexure-A clearly states that the matter is to be remanded to the Deputy Director consolidation. 19. As far as the merit of this case is concerned, this court has already held that the materials i.e. spot verification made without recording the statements, much less, providing an opportunity to the petitioner to refute the statements cannot be considered to be evidence to decide the issue in question. 20. I accordingly quash the order impugned and this writ petition is allowed. 21. It is made clear that the aggrieved party may be at liberty to move the competent court of civil jurisdiction for proper adjudication of the matter, if so advised. Patna High Court, November, 22, 2010, AFR / haque. (Sheema Ali Khan, J.)