IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1649 of 2009 1. SUKHU PASWAN S/O LATE DOMA PASWAN R/O VILL- DADURA, P.O. PAHADIA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA). 2. RAM RATI KUER W/O LATE SHEO NATH PASWAN R/O VILL- DADURA, P.O. PAHADIA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 3. NAGINA PASWAN S/O LATE DUDHNATH PASWAN R/O VILL- DADURA, P.O. PAHADIA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 4. MUKHTAR ANSARI S/O GULAM MOHAUDDIN ANSARI @ SUKHARI ANSARI R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 5. WAKIL ANSARI S/O GULAM MOHAUDDIN ANSARI @ SUKHARI ANSARI R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 6. WAHID ANSARI @ ABDUL WAHID S/O LATE SAFFIAME MIAN R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 7. RUSTAM ANSARI S/O GULAM FARID ANSARI R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 8. AMZAD ANSARI S/O GULAM FARID ANSARI R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 9. IZHAR ANSARI S/O GULAM FARID ANSARI R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 10. RAM DEYAL BIND S/O LATE SHEONATH BIND R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 11. BILATAN BIND S/O LATE BUDHIRA BIND R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 12. MADARSA THROUGH MUKHTAR ANSARI R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA). ----------- Petitioners---------Appellants Versus 1. THE STATE OF BIHAR 2. THE DIRECTOR OF CONSOLIDATION BIHAR, PATNA 3. THE ASSISTANT DIRECTOR OF CONSOLIDATION ROHTAS AT SASARAM, BIHAR, PATNA 4. THE CONSOLIDATION OFFICER BHAGWANPUR, P.O. & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA). ------------- Respondents----------Respondents 1st Set 5. NANHAK RAM S/O LATE LOCHAN RAM R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 6. BHOLA RAM S/O LATE LOCHAN RAM R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 7. POLHAAWAN @ PAHALWARI RAM S/O LATE LOCHAN RAM R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 8. PURNAMASI RAM S/O LATE CHIRKUT RAM R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 9. NAGENDRA RAM S/O LATE CHIRKUT RAM R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 2 10. BIJAY RAM S/O LATE CHIRKUT RAM R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) ------------- Respondents----------Respondents 2nd Set 11. SARFUDIN ANSARI S/O USUF ANSARI R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 12. MD. ALAMGIR ANSARI S/O CHURABH ANSARI R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 13. HADISHAN BIBI W/O LATE KHALIL ANSARI R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 14. SAKEEL ANSARI S/O LATE BARFASI MIAN R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 15. IILYAAS ANSARI S/O LATE BARFASI MIAN R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 16. MD. ASHIQUE MIYAN @ ASHIQUE ANSARI S/O ZAMARTI MIYAN R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 17. BHOLA ANSARI S/O LATE SADIQUE ANSARI R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 18. RAHMAN ANSARI S/O LATE MASTER ANSARI R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 19. SAHBAN ANSARI S/O LATE MASTER ANSARI R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 20. ILIAS ANSARI S/O LATE IFIZ ANSARI R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA) 21. AKHTAR ANSARI S/O LATE BARAT ANSARI R/O VILL- KOCHARHI, P.O. SAITHA, ANCHAL & P.S. BHAGWANPUR, DISTT. KAIMUR (BHABHUA). --------------- Writ Petitioners--------Respondents 3rd Set --------- For the Appellants :- Mr. Mahesh Prasad Mr. Rewti Kant Raman For the Respondent :- ------------- ----------- PRESENT : THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (22/03/2010) As per Mihir Kumar Jha, J. I.A. No. 8706 of 2009 Having heard the learned Counsel for the appellants as also after perusing the reasons disclosed in this application seeking condonation of delay of eight days in filing of this appeal, this 3 application is allowed. The delay in filing the appeal is condoned. 2. I.A. No. 8706 of 2009 is accordingly disposed of. L.P.A. No. 1649 of 2009 3. Having condoned the delay, we have with the consent of learned counsel for the appellants have taken up this appeal for final disposal at the stage of the admission. 4. This appeal is directed against the order dated 5.5.2009, whereby and whereunder, the writ application C.W.J.C. No. 10887/2008, filed by the appellants as also respondent 3rd set have been disposed of by giving liberty to the aggrieved parties to approach the civil court of competent jurisdiction to get their dispute settled finally as with regard to the impugned order dated 14.3.2008 passed by the Director of Consolidation, Bihar, Patna in Consolidation Revision Case No. 63 of 2002. 5. In order to appreciate the submissions of the learned Counsel for the appellants, as is being noted hereinafter, it would be necessary to set out certain relevant facts as can be culled out from reading of the memo of appeal and the connected writ application. 6. It appears that certain land in question initially recorded in the survey records was recorded in the name of Gairmazurua Malik and accordingly, when the same had vested in the State in terms of Bihar Land Reforms Act, 1950 and a Khata was opened in the name of State 4 of Bihar, certain objections were filed by Abdul Wahid Ansari, Rustom Miyan and Mokhtar Ansari that as 88 decimals of land of plot no. 30 of khata no. 97 in mauja Kochari as also plot no. 1, khata no. 97 of mouja Kochari measuring 42 decimals was in their continuous cultivating possession, their name should be recorded by removing the name of the State of Bihar. In such proceedings by two different orders dated 16.7.1981 as contained in Annexure Nos. 2 & 4 of the writ application, the Consolidation Officer, Bhagwanpur had directed for deleting the name of the State of Bihar and recording the name of Abdul Wahid Ansari, Rustom Miyan and Mokhtar Ansari. Subsequently, two revision petitions were filed by the ancestors of respondent 2nd set claiming that the land in question measuring 11.12 acres had been acquired by them by a registered Patta deed 9.8.1949 executed by Janeshwar Prasad, Suga Devi and Chandra Kishori on payment of Nazrana and a registered Kabuliat was also executed by Lochan Ram the ancestor of the respondent 2nd set in favour of ex-landlord for the same. On this basis the two revision petitions filed by them, were allowed by the Deputy Director of Consolidation by his order dated 22.9.1988 by directing the entire land to be recorded in the name of ancestors of the respondent 2nd set. Such order of the Deputy Director dated 22.9.1988 in both the revisions, however, was set aside by this Court by an order dated 15.2.1990 in C.W.J.C. No. 4886 of 1989 which was filed by the 5 respondent no.16 of this memo of appeal who incidentally was the petitioner no.23 in the connected present writ application wherein it was held that the Deputy Director Consolidation had no jurisdiction to pass such order dated 22.9.1988 and thus the matter was remitted back for fresh disposal in accordance with law by the Consolidation Officer or under his order by any other officer having power of hearing the revision applications under Section 35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter to be referred to as ‘the Act’). Thus, the matter on remand was heard, and disposed of this time by a Research Officer who by his order dated 25.5.1995 had dismissed both the revision applications while holding that 2.16 acres of land was claimed to be settled in the name of appellant nos. 1, 2 & 3 who were petitioner nos. 12, 13 & 14 to the present writ application and 0.80 acres of land of old plot no. 443 and new plot no. 641 measuring 0.80 acres was settled in favor of Md. Ashique Miyan, the respondent no.16 to this memo of appeal who was petitioner no.23 in the writ application. For the rest of the land, the Research Officer in the aforesaid order dated 25.5.1995 had directed the Consolidation Officer, Bhagwanpur to hold local inspection and record the name of the persons who were found to be in possession of the land. It has to be noted that as against the aforementioned order dated 25.5.1995 passed by the Research Officer, some family members of the respondent 2nd set had 6 filed a writ application in this Court being C.W.J.C. No. 4141 of 1995 wherein keeping the nature of the order of remand, this Court had refused to interfere and permitted the writ petitioners of that case to raise all the questions before the Consolidation Officer. It appears that thereafter the Consolidation Officer by his order dated 28.12.1996 had allowed the claim of the respondent 2nd set but then such order dated 28.12.1996 was again interfered by the Joint Director of Consolidation in revision petition filed by some of the appellants by an order dated 23.9.2000 wherein he had authorized the Assistant Director of Consolidation to hold local inspection and pass a fresh order. It was only thereafter that the Assistant Director of Consolidation in the appeal preferred by some of the appellant writ petitioners had passed an order dated 22.6.2002 holding them to be in possession and thus entitled for recording of their names in the consolidation khatiyan. It was accordingly now the turn of the respondent 2nd set to take the matter in revision and the impugned order dated 14.3.2008 was passed by the Director of Consolidation himself wherein it was held that the khatiyan opened in the name of the writ petitioners including appellants and respondent 3rd set and others only on the basis of possession or so called settlement could not be sustained in the eye of law in view of the registered settlement in favour of the respondent 2nd set. 7. It was against the aforesaid revisional order dated 7 14.03.2008 of the Director of Consolidation that 23 persons (appellant nos. 1 to 12 and respondent nos. 11 to 21) had filed the connected writ application C.W.J.C. No. 10887/2008 wherein they made following prayer:- “1(I) The order dated 14.3.2008 passed in Consolidation Rev. Case No. 63/2002 U/s 35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (here-in-after Consolidation Act’) by the learned Director of Consolidation, Bihar, Patna, Resp. No.2 as contained in Annexure-7 be quashed. (II) The order dated 23.9.2000 passed in Rev. Case No. 457/1997 U/s 35 of the Consolidation Act by Joint Director of Consolidation An-4 read with Rev. Case No. 3225/1986 and 3226/1986 passed U/s 35 of the Consolidation Act by the order dated 25.5.1985 by the learned Sodh Padadhikari (Research Officer) Consolidation Directorate, Patna An-3 read with order dated 22.6.2002 passed in Appeal Case No. 21/2001-2002 / Rev. Case No. 457/1997 by the Assistant Director of Consolidation, Rohtas, Sasaram An-6 be held to be final order applying the law of the doctrine of merger contained in Annexure 3 and 6 U/s 35 of the Consolidation Act and not open to review by the impugned order contained in Annexure-7. 8. Learned single judge having found from the impugned order passed by the Director of Consolidation that it was a pure question of right, title and interest based on competing claims of settlement from ex-land and/or State had held that such complicated question of title could be finally settled only by a civil court of competent jurisdiction where the parties could prove their claim with the help of evidence and accordingly, the writ application had been disposed of with a liberty to 8 the parties to approach the civil court of competent jurisdiction for getting their dispute settled for once and ever by making following observations:- "From the pleadings, it transpires that the petitioners and the respondents have continued to agitate this dispute for a very long time. On several occasions the dispute has travelled from the revenue authorities to the High Court. Not less then three occasions either the petitioners or the respondents have preferred writ application against the order passed by the Director/Joint Director, Consolidation, under Section 35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. The dispute relates to title and possession of the parties with respect to the land in question. Both are claiming settlement of the land in their favour. The question, which requires consideration, can be finally settled only by a Civil Court of competent jurisdiction where the parties will get an opportunity to lead evidence in support of their claim. In view of the matter, I do not find any reason to interfere with the order. This application is being disposed off with a liberty to the petitioners/respondents, whosoever, is aggrieved to approach the Civil Court of competent jurisdiction to get their dispute settled finally." 9. Assailing the correctness of the aforesaid order passed by the learned Single Judge, Mr. Mahesh Prasad, learned counsel for the appellants has seriously contended that there is an apparent error in the impugned order of the learned single Judge, inasmuch as, effect of such 9 order would be that the illegal order of Director of Consolidation dated 14.3.2008 will be deemed to have been upheld though the same was wholly unsustainable for a number of apparent errors on the face of record. 10. Mr. Mahesh Prasad in this context has submitted that the land in question had already stood settled in the name of appellants as also respondent 3rd set (respondent no.11 to 21) and for this purpose, he had referred to the statement made in paragraph no.5, 6 & 7 of the memo of the appeal. From paragraph no.5 of the memo of appeal, it would transpire that the claim of appellant nos. 1, 2 & 3 was based in respect of an area of 2.16 acres of R.S. plot no. 5 which was claimed by them on the basis of a settlement by the then ex-landlord Babu Jageshwar Prasad and others much before 1.1.1946 . Similarly in paragraph nos. 6 & 7, 88 decimals of R.S. plot no.30 and 42 decimal of R.S. plot no.1 was claimed by the appellant nos. 4 to 8 on the basis of settlement by the then ex-landlord much before 1.1.1946. 11. This Court on an earlier occasion while hearing the appeal and having noticed the similar arguments of the learned counsel for the appellant as advanced before us, had passed an order dated 4.1.2010 which is quoted hereinbelow:- “Let the matter be listed in the week commencing 25th January, 2010 to enable the learned counsel for the appellants to file the orders by which the lands mentioned in paragraphs 5, 6 and 7 of the memorandum of appeal were settled in favour of the appellants. We have so directed as 10 a contention was canvassed that despite finality attached to the said orders the Director in revision has dealt with the same without any basis.” 12. Today, Learned Counsel for the appellant has filed a supplementary affidavit in compliance of the aforementioned order dated 4.1.2010 but a bare perusal of such supplementary affidavit would totally expose the hollowness of the claim of the appellants, inasmuch as, no document by way of settlement made by the ex-landlord prior to 1.1.1946 has been brought on record. This aspect of the matter assumes significance specially when it is found that statement in the memo of appeal with regard to the specific claim of settlement in favour of appellant nos. 1 to 8 as stated in paragraph nos. 5, 6 & 7 of the memo of appeal was not even set out in the writ application where certain inferential statements were made based on the order of the revenue courts from which it was sought to be canvassed that there was certain claim of the 23 writ petitioners of settlement from different sources. As a matter of fact, now in the supplementary affidavit to the memo of appeal, the appellant nos. 1, 2 & 3 intend to convey only on the basis of the so-called return filed by the Jamindar, which also does not bear any date of its filing and in which curiously the entry made on the last page as with regard to the plot no.56 khata no.53 measuring 2.16 acres is shown to be in the name of Doma Dusad and Ramnath Dusad with an entry of Khidmati Jagir Mafi. Such entry in the alleged return filed by 11 the Jamindar would not inspire confidence for more than one reason, namely, in the column of Asami for plot no. 1 to 37 there is no such mention of the nature of the rent realized by the ex-landlord whereas in the case of the entry relied by the appellant nos. 1, 2 & 3 there is specific entry of Khidmati Jagir Mafi only for explaining that there was no lagan cess due to apportionment of the produce of land between the landlord and the raiyat. In all other columns, there is also complete mention of the rent being realized by the Jamindar but is only in the case of the entry relied by the petitioner nos. 1, 2 & 3 that there is no such entry. Thus, neither the solitary document filed by the appellant nos. 1, 2 & 3 by way of alleged return submitted by the ex-landlord can be the conclusive proof of settlement in favour of the ancestors of the appellant nos. 1, 2 & 3 nor the same is the document of settlement, which was directed to be produced by this Court. 13. It has to be noted here that this document as contained in annexure-1 to the supplementary affidavit, the alleged return filed by the ex-land was not even filed before the Director, Consolidation as would be apparent from Annexure-1 of the memo of appeal wherein as many as 14 documents were sought to have been filed by the appellants. It is thus clear that the case of appellant nos. 1, 2 & 3 who were petitioner nos. 12, 13 & 14 to the writ application as with regard to 2.16 acres of land is shrouded in mystery and its title can be declared in their favour only if 12 they can lead satisfactory evidence before the civil court. 14. The position of claim of settlement appellant nos. 4 to 8 is still worse, inasmuch as, they have not filed any document showing such settlement in their favour by the ex-jamindar nor even the return filed by the ex-jamindar has been produced. They infact intend to support their claim of title through an order of Consolidation Officer dated 16.7.1981 or the order of the Assistant Director of Consolidation dated 4.11.1993 as contained in Annexure Nos. 2 to 5 to the supplementary affidavit to the memo of appeal. Now these orders being the subject matter of challenge in the consolidation proceedings the appellant nos. 4 to 8 could not have drawn any advantage specially when this Court would find from the order of the Consolidation Officer dated 16.7.1981 itself that earlier their claim was upheld only on the basis of possession even without giving any inkling of so called settlement from the ex-landlord. It is thus becomes clear that the story of settlement as introduced by the appellant nos. 1 to 8 do not inspire confidence and in such a situation, if the learned single Judge has held that the question of title of land can be adjudicated by a competent civil court only, no flaw can be found therein. 15. It is equally important to take into account herein that the appellants either before the revenue authorities or before the learned single Judge or before this court have not questioned with regard to the 13 existence of a registered patta deed dated 9.8.1949 executed by Janeshwar Prasad, Suga Devi and Chandra Kishori Devi on payment of Nazana as also registered Kabuliat executed by the Lochan Ram @ Lochan Chama in favour of the ex-landlord for the same land measuring 11.12 acres. In fact all that has been said in this regard is that the same are not correct and in fact concocted document. The validity and correctness of a registered document cannot be set at naught by the revenue authority or the authority under the Act and in fact such questions can be decided only by a competent civil court as was held by the full bench of this Court in the case of Seikh Haidar Zan Vs. Md. Yusuf Ansari & Anr. reported in 2000(2)PLJR 338 wherein the consolidation authorities were found to have been confirmed with the status of deemed court and thus having a limited jurisdiction and as such, the suit based on title challenging the correctness of the entry in the register of land under Consolidation Act were not held to be barred in the civil courts. Similar view was taken by the earlier full bench of this Court in the case of Kalika Kuar alias Kalika Singh Vs. The State of Bihar and Ors. reported in 1989 PLJR 1203. 16. As with regard to the claim of the rest of 15 of the 23 writ petitioners, four arrayed as appellant nos. 9 to 12 and remaining as respondent nos. 11 to 21 of this memo of appeal, their case has been set out in paragraph no. 18 of the memo of appeal by taking a plea that the 14 lands were settled to them through different settlement cases after observing a mandatory provisions of law of settlement followed by mutation of their names in Register-II and issuance of receipts. This aspect of the matter has been dealt with by the Director of the Consolidation in the impugned order in the following terms:- “-----So far other person are concerned they are not able to show as to on what basis they claimed portions of the lands and at which point of time they came in possession and how taking undue advantage of the consolidation operation persons other that the settlees of 1987 got their names recorded on the basis of illegal possession. Possession derived stealthily by squatters can not be give any recognition in the eye of law and so far the settlees of 1987 are concerned their settlement being contrary to the admission of the state in the form of Jamabandi and grant of receipts in the names of the petitioners, are of no avil.” 17. This Court would not find any error in such approach of the Director of Consolidation, inasmuch as, mere possession without any document to back such settlement either by the ex-landlord or by the State cannot be recognized in law and if at all it is a case of adverse possession that again can be gone into by the civil court in a properly framed suit seeking declaration of right, title and interest in such land. 18. Similarly, this Court would also not find any infirmity as with regard to the consideration of the case of private respondents, 2nd set in the impugned order where it was on the basis of documents including certified copy of the registered Patta and Kabuliat dated 9.8.1949 it was held that ex-landlord had settled the land effectively in 15 their favour and accordingly, this Court would also approve the following reasons given by the Director in the impugned order:- “----- From the Certified copy of the registered of Patta dated 9.8.49 executed by the land lords in favour of Lochan Chamar followed by Kkabuliat of the same date i.e. 9.8.49 executed by the aforenamed Lochan