IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13612 of 2008 1. YASHMIN NEHAL, WIFE OF LATE NEHALUDDIN AHMAD 2. ADIL NEHAL, SON OF LATE NEHALUDDIN AHMAD 3. AYESHA NEHAL, DAUGHTER OF LATE NEHALUDDIN AHMAD, ALL RESIDENTS OF VILLAGE MUSHKIPUR, P.O. GOGRI JAMALPUR, DISTRICT KHAGARIA AT PRESENT RESIDING AT MOHALLA BARIATU, NEAR JORA TALAB, AT & P.O. RANCHI, DISTRICT RANCHI, JHARKHAND- 834 009. 4. NEZAMUDDIN @ ALI, SON OF LATE MD. JAMALUDDIN, RESIDENT OF VILLAGE MUSHKIPUR, P.O. GOGRI, P.S. GOGRI JAMALPUR, DISTRICT KHAGARIA AT PRESENT RESIDING AT FLAT NO. 305, A- BLOCK, DEEP GANGA APARTMENT, ASHOK RAJPATH CHAUHATTA, P.O. BANKIPORE, P.S. PIRBAHORE, DISTRICT PATNA. 5. NUSHRAT SHAHAB, WIFE OF SHAHAB NASIRUDDIN, DAUGHTER OF LATE MD. JAMALUDDIN, RESIDENT OF MOHALLA MIRDAD, TOWN BIHAR, P.S. BIHAR, P.O. BIHARSHARIF, DISTRICT NALANDA AT PRESENT RESIDING AT FLAT NO. 303, MANNA SURTI COMPLEX, WEST OF DOCTORS COLONY, KANKARBAGH, PATNA-20. 6. ISHRAT AZAD, WIFE OF KHALIL ASHRAF AZAD, DAUGHTER OF LATE SYED JAMALUDDIN, RESIDENT OF MOHALLA B.M. DAS ROAD, P.O. BANKIPUR, P.S. PIRBAHORE, DISTRICT PATNA AT PRESENT RESIDING AT 27 DARYNG TON DRIVE GREENFORD MIDDX, UB6 8 BQ, UK. ------------------------------------------------------------------------------------------ PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR, PATNA 3. THE DEPUTY COLLECTOR LAND REFORMS, PATNA 4. THE ANCHAL ADHIKARI, BANKIPORE ANCHL, PATNA ‘ ----------------------------------------------------------------------------- RESPONDENTS 1ST SET 5. BARKA KHATOON, WIFE OF LATE ENAMUL HAQUE 6. SHAHIBA AFTAB, DAUGHTER OF LATE ENAMUL HAQUE, WIFE OF HIZAFUR RAHMAN @ AFTAB 7. ARIFUL HAQUE FAKRUDDIN 8. IRSHADUL HAQUE, SONS OF LATE ENAMUL HAQUE 9. RASHIDUL HAQUE FAKRUDDIN, ALL RESIDENTS OF GULISTAN APARTMENT, DARGAH ROAD, MOHALLA SULTANGANJ, P.S. SULTANGANJ, P.O. MAHENDRU, DISTRICT PATNA. 10. ZEENAT KHATOON, WIFE OF PROF. SYED ALIMULLAH HALI, RESIDENT OF WHITE HOUSE COMPOUND GAYA, DISTRICT GAYA. 11. EJAJUR RAHMAN, SON OF LATE MUJIBUR RAHMAN, RESIDENT OF GRAND APARTMENT, FRAZER ROAD, P.S. KOTWALI, DISTRICT PATNA. ---------------------------------------------------------------------------- RESPONDENTS 2ND SET ----------- 12 27.10.2010 This matter has been heard after notice to the parties. Subsequently, petitioner nos. 1 to 3 have withdrawn 2 themselves from the writ application, however, petitioner nos. 4 to 6 are pursuing this writ application and have challenged the order of the Collector, Patna dated 14.8.2006 in Mutation Revision Case No. 12 of 2002-03 by which the Collector, Patna has held that the factum of possession has not been considered by the D.C.L.R., Patna and on the basis of the aforesaid fact has remanded the matter back to the D.C.L.R., Patna for consideration on this issue. 2. Petitioners’ case is that the land on which there is a house known as ‘Fakhruddin House’ was orally gifted by Sir Syed Md. Fakhruddin Khan Bahadur to his elder son Syed Azizul Haque who accepted the gift and came in possession of the said property. After the oral gift, the donee was mutated in the Serista of the ex- landlord. Sir Syed Md. Fakhruddin Khan Bahadur died in the year 1933. After vesting of the State of Bihar the name of Syed Azizul Haque Fakhruddin was entered in Register II and he began to pay rent to the State of Bihar. Syed Azizul Haque had 3 three daughters and one son Mohibul Haque Fakhruddin. Syed Azizul Haque gifted 4 Annas interest in the disputed land on 16.11.1964 to his daughter Bibi Umme Kulsum @ Noorjahan. The other daughters had migrated to Pakistan. On the basis of the deed of gift, the name of Umme Kulsum was entered in the Municipal Corporation in Mutation Case No. 318 of 1964-65. After the death of Syed Azizul Haque, the remaining 12 Annas share of the disputed property devolved upon Mohibul Haque Fakhruddin, Son of Syed Azizul Haque. Later Mohibul Haque also gave his share to his sister Umme Kulsum by an oral hibba in the year 1977. Petitioners are the heirs of Azizul Haque. It is the case of the petitioners that the respondents surreptiously got their name mutated. In the said mutation case, the petitioners were not noticed and the respondents suppressed the fact that they filed a Title Partition Suit numbered as 321 of 1993 which is pending before the Sub-Judge II. Besides which the petitioners also dispute the fact that the respondents have any 4 right title or are direct decendents of Azizul Haque or for that matter Sir Syed Md. Fakhruddin Khan Bahadur. 3. The case of the respondents is that the appeal against the mutation of their names is not maintainable as it has been filed after a delay. It is also asserted that Sir Syed Md. Fakhruddin Khan Bahadur had not gifted his land to Azizul Haque and they claim a share in the property in accordance with Mohammedan law for which they have filed Title Suit No. 321 of 1993. 4. An interlocutory application numbered as 8024 of 2009 has been filed on behalf of petitioner nos. 1 to 3 claiming that their interests clashes with petitioner nos. 4 to 6. It is their claim that they have appointed Md. Abu Kaiser to deal and safeguard their interests in the lands in question. Abu Kaiser happens to be a builder who has converted ‘Fakhruddin House’ into a multi-storied building. In the interlocutory application, it has been asserted that Nezamuddin @ Ali (petitioner no. 4) had prepared a written statement and 5 obtained the signatures of petitioner nos. 1 to 3 without their consent. They challenged the genealogical table as prepared by Nezamuddin @ Ali and support the case of the plaintiffs by challenging the genealogical table in the written statement. Therefore, it appears to this Court that Abu Kaiser the builder has entered into an agreement with petitioner nos. 1 to 3 and is pursuing their interests in this Court as well as before the Sub- Judge II. The case of petitioner nos. 1 to 3 who may be treated as respondents in this case, is thus similar to the case of the other private respondents. 5. The D.C.L.R., Patna while considering the submissions of the parties has found that the Circle Officer could not have mutated the name of the respondents for the reasons as mentioned by him in the order. 1. That the Plot No. 186 belongs to Sir Syed Md. Fakhruddin Khan Bahadur. 2. Both the parties are claiming to be heirs of Sir Syed Md. Fakhruddin Khan Bahadur. 6 3. That the petitioners are the heirs of Sir Syed Md. Fakhruddin Khan Bahadur whereas they do not accept the respondents (2nd Set) to be heirs of Sir Syed Md. Fakhruddin Khan Bahadur. 4. That the respondents have filed a Title Suit claiming share in the land on the ground that they are also heirs of Sir Syed Md. Fakhruddin Khan Bahadur and on the ground that there was no oral gift deed in favour of the defendants in the suit. Both parties accept that the Jamabandi was opened in the name of Azizul Haque. The respondents second set claim that there are several heirs of Sir Syed Md. Fakhruddin Khan Bahadur but have not disclosed the name of the heirs. 5. That the respondents second set had suppressed the fact that a title partition suit was pending before the Sub- Judge. 6. That the respondents second set had not impleaded the petitioners 4 to 6 as parties in the mutation case. 7. That the procedure by which the names of the respondents were mutated was 7 passed without completing the procedure as laid down under law. No notice was ever issued to the petitioners in the mutation case. 6. Therefore, the D.C.L.R. has held in favour of the petitioners. 7. After considering the respective cases of the party, this Court finds that the Jamabandi of the petitioners cannot be ignored or set aside in the manner in which the Collector has envisaged. It is also relevant to consider the fact that there is no occasion for considering the factum of possession on the basis of the case as made out by the respondents, especially in view of the fact that the builders perhaps on the basis of an agreement with some of the parties has constructed a multi storied building. It would mean that the builders is in possession which infact does not show that the title or possession of a particular party. The right of the builder will depend on title of the parties with whom he has dealt for the purpose of construction of the building. The claim of the respondents that they are in possession 8 of the land can hardly be considered by the mutation Court at this stage in view of the fact that Azizul Haque and subsequently his daughters’ name have already been mutated in the records of rights. In any event, no order can be passed in the mutation case which was filed on behalf of the respondents in view of Title Suit No. 321 of 1993 which is pending. The entry in the Jamabandi and municipal records, in favour of the petitioners or their predecessor in interest would obviously depend on the ultimate finding of the Civil Court regarding the rights & title of the plaintiff in the Civil Suit. This Court finds that since disputed questions of facts are involved, it would not be proper for the mutation Court to interfere and mutate afresh the name of either party. Therefore, this Court quashes the order, passed by the Circle Officer mutating the names of the respondents and the order of the Collector dated 14.8.2006 remanding the matter to determine the factum of possession. Once a mutation has already taken place in the municipal records and 9 the name of Azizul Haque and his daughters are recorded in the record of rights, any further order of mutation is not required at this stage. All orders of the revenue authorities would be subject to the judgment and decree passed in the Title Suit 321 of 1993. 8. In the result, the order of the Collector is quashed. This writ application is allowed. Sanjay ( Sheema Ali Khan, J.)