IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.14010 OF 2008 1. KHAIRUN BIBI, WIFE OF LATE RABUDDIN MIYA 2. NOOR HASAN, SON OF LATE RABUDDIN MIYA 3. MOHAMMAD HASAN, SON OF LATE RABUDDIN MIYA 4. IMAM HASAN, SON OF LATE RABUDDIN MIYA 5. DOMAYI MIYA, SON OF LATE ROJA MIYA ALL ARE RESIDENT OF VILLAGE SAIDANPUR, POST OFFICE BIHTA, POLICE STATION TARARI, DISTRICT BHOJPUR ………………………………………………………………………PETITIONERS VERSUS 1. THE STATE OF BIHAR, THROUGH THE DIRECTOR, CONSOLIDTION, BIHAR, PATNA 2. THE DIRECTOR, CONSOLIDATION, BIHAR, PATNA 3. THE DEPUTY DIRECTOR, CONSOLIDATION , BHOJPUR AT ARA 4. THE CONSOLIDATION OFFICER, BLOCK-TARARI, DISTRICT BHOJPUR 5. AZIZ MIYA, SON OF LATE BUDHU MIYA, RESIDENT OF VILLAGE SAIDANPUR, POST OFFICE BIHTA, POLICE STATION TARARI, DISTRICT BHOJPUR ………………………………………………………………….RESPONDENTS ******* 4 31/07/2009 Heard learned Counsel for the petitioner and the Counsel appearing on behalf of respondent no. 5. This writ application has been filed challenging the order dated 10.12.2007 passed by the Director, Consolidation in Consolidation Revision Case No. 3035 of 1986. Earlier the respondent no. 5 had moved this Court vide CWJC No. 2790 of 1987 challenging the Revisional order by which the petitioners’ application was allowed. This Court remanded the matter back to the Director, Consolidation in the following terms. 2 “In view of the fact that the finding of the Revisional authority relating to possession of respondent no. 5 is erroneous, being based on no evidence, There being no finding in favour of respondent no. 5 in a proceeding under section 145 proceeding, I set aside the Revisional order dated 30th May, 1987 (Annexure-3) and remit the matter to the Revisional authority to decide the dispute afresh, after hearing the parties taking into consideration local inspection report, if any, submitted by the Consolidation Officer and if necessary, by making fresh local inspection through an officer of the same rank.” The Director, Consolidation has gone into all the facts of this case and decided the matter in favour of respondent no. 5, Aziz Miya and others. It is admitted fact that Roja Miya and Miya Jan Miya were the sons of one Abdul Miya. Roja Miya had two sons, Rabuddin Miya and Domayi Miya. The petitioners are the sons of the two aforesaid persons. The case of the respondent no. 5 is that Miya Jan Miya died in December, 1976 and the daughters came into possession of the share of their father’s property. The daughters of Miya Jan Miya by a registered deed dated 24.10.1077 sold the lands to Aziz Miya, respondent no. 5 before this Court. 3 The case of the petitioners, on the other hand, is that Miya Jan Miya during his lifetime gifted his share of property on 01.11.1976 by an oral gift to the petitioners. The petitioners came in possession over the lands gifted to them and have been paying rents to the State of Bihar upto 2008. This Court finds in view of the claims of the parties which have not been discussed by the Director, it would be proper to remand the matter back to the Director to decide apart from other issues which may come up for hearing the following issues: (a) Whether the oral gift was validly executed, that is to say, whether the three ingredients which are essential for of an oral gift were fulfilled? This aspect would have to be decided on evidence to be led by the parties in question. (b) Whether the daughters of Miya Jan Miya under the Muslim Law can transfer the entire lands which fell in their father’s share considering that they are governed by the Hanifi Mohammedan Law? The Director, Consolidation will also be required to consider the earlier order of remand wherein the Court had held that a local inspection ought to be made after issuing notice to both the 4 parties to determine which of the parties is in possession of the lands in question. Both the parties are directed to co-operate with the Director, Consolidation in concluding the matter expeditiously. In the result, the order dated 10.12.2007 passed by the Director, Consolidation in Consolidation Revision Case No. 3035 of 1986 is hereby quashed and the matter is remitted to the Director, Consolidation for rehearing this matter after taking all aspects into consideration. This writ application is disposed of with the aforesaid observations and directions. Anand ( Sheema Ali Khan, J. )