IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12310 of 2010 1. GANESH BHAGAT S/O LATE SHITAL BHAGAT R/O VILL. AND P.O. DHARAHARA P.S. AND ANCHAL- BHOREY, DISTT.- GOPALGANJ ---- PETITIONER. Versus 1. THE STATE OF BIHAR 2. THE JOINT DIRECTOR CONSOLIDATION, MUZAFFARPUR 3. THE DEPUTY DIRECTOR, CONSOLIDATION, SIWAN 4. BIRJA BHAGAT S/O LATE NATHUNI BHAGAT R/O VILL.- DHARAHARA ANCHAL AND P.S. BHOREY, DISTT.- GOPALGANJ 5. LALJEE BHAGAT S/O LATE NATHUNI BHAGAT R/O VILL.- DHARAHARA ANCHAL AND P.S. BHOREY, DISTT.- GOPALGANJ ---- RESPONDENTS. For the petitioner : Mr. Udit Narain Singh, Advocate. For the State : Mr. S.Rahman, A.C to G.A IX For Respondent nos 4 and 5 : Mr. Suresh Prasad Bhakta, Advocate. ----------- 05 02.12.2010 Heard the parties. Petitioner assail the order dated 27.02.2008 passed in revision application bearing revision case no. 39 of 1992 by the respondent Joint Director, Consolidation, Muzaffarpur whereby the revision preferred by the respondent nos. 4 and 5 has been allowed and order dated 10.11.1992 passed on consolidation appeal no. 212 of 1991 (Annexure-3) has been set aside. By the said order Khatiyan in respect of the lands in question have been directed to be prepared in the name of the respondent nos. 4 and 5. Short facts giving rise to the application are that one Ram Padarath Bhagat had three sons namely, Jhuti Bhagat, Shital Bhagat and Ram Sahay Bhagat. Nathuni Bhagat was the sole son of Jhuti Bhagat. Respondent nos. 4 and 5 are the sons of Late Nathuni Bhagat. Petitioner is the son of late Shital Bhagat. It is 2 the case of both the parties that Ram Sahay Bhagat died issueless but before his death he had executed a registered Baksisnama in favour of respondent nos.4 and 5. It is the case of the private respondent nos. 4 and 5 that after separation in the family Jhuti Bhagat purchased the lands in question and therefore became the sole owner and came in possession in respect of the same land. After his death the respondents acquired right, interest and title respecting the said land which continued to be recorded in their name. It appears that the writ petitioner filed an objection in the Court of respondent Consolidation Officer being Objection case no. 447 of 1989-90 under Section 10(2) of the Bihar Consolidation of Holdings & Prevention of Fragmentation Act ( for short „Act‟) seeking correction in the records of rights. The claim raised by the objector was based on khatiyan. The said khatiyan was however not produced. The case of the respondents herein in the said objection case was that the land in question was acquired by their grand father by reason of three sale deeds. Such acquisition was made subsequent to the separation in the family. Let it be recorded that writ petitioner herein is the son of Shital Bhagat who was full brother of Jhuti Bhagat. From the order passed by respondent Consolidation Officer (Annexure-2) it appears that the khatiyan which found basis of the claim of the writ petitioner was not produced by him. On the other hand, the respondents produced the sale deeds as also the document indicating partition between the Jhuti Bhagat and Shital Bhagat. The respondent Consolidation 3 Officer, however, passed the order allowing the objection based on verification. Aggrieved by the aforesaid order the private respondents herein preferred appeal no. 212 of 1991 which was rejected based on a local inspection made by the appellate authority wherefrom it was found that both the parties were in possession in half and half of the disputed land. There is, however, no finding by the two Courts below that khatiyan stood recorded in the joint name of Jhuti Bhagat and Shital Bhagat. Admittedly the lands were acquired by sale deeds by the grand father of respondent no.5. This factum is admitted before this Court also. It is the case of the writ petitioner that after acquiring the disputed land through sale deeds partition was effected between the two brothers whereas the case of the respondents is that acquisition of land through three sale deeds were made which include the lands in dispute after separation. The revisional Court, on a consideration of the documents placed before it including the sale deeds as also the rent receipts found and held that the disputed lands was the self acquired property of grand father of respondent no.5. It further appears therefrom that certain factual mistake respecting the disputed land was also committed while allowing the objection case preferred by the writ petitioner by the authority. The issue, therefore, is whether Jhuti Bhagat, grand father of private respondent nos. 4 and 5, acquired the disputed land through sale deeds before partition in the family or after partition. It appears from the order of learned respondent 4 Consolidation Officer that the document relating to separation (Panchnama) was produced before the said Court which was not taken into account. The objection filed by the writ petitioner was allowed only on the basis of local inspection allegedly made by the Consolidation Officer. Similarly the appellate Court, after having heard the case of the parties, solely relied on the local inspection made by him. A counter affidavit has been filed on behalf of the respondent nos. 4 and 5 wherein following facts have been averred:- “10. That it is relevant to state here that the respondent no.4 and 5 had not filed any compromised petition before C.O. during pendency of hearing of Case 447/89-90. Mention of consent by the parties in order contained in Annexure-2 is false, malafide and concocted. 12. That after coming to knowledge about the order contained in Annexure-2, the respondent no.4 and 5 preferred an appeal before DDC Siwan and during pendency of appeal petitioner appeared and filed cross appeal and appeal is dismissed on 10.1.1992 in which D.D.C. Siwan wrongly mentioned that he visited the spot. D.D.C. never visited the spot in any time and it is cryptic. There is no any memo of enquiry report is available on the record of the case/appeal. No any notice had been issued/served about local inspection upon the members of gram advisory committee which required to under law. Fact is that DDC Siwan did not hold local inspection and falsely/malafidely mentioned in his order that beheld local inspection and found possession of the both parties half and half over the disputed land.” This Court takes into account the findings recorded by the Consolidation Officer wherefrom it appears that the order was being passed based on a compromise arrived at between the 5 parties. There is, however, no such compromise on record. Further it appears that the khatiyan in respect of the land which formed sheet anchor of the writ petitioner was not produced before the authorities. These facts appearing from the record persuade this Court not to exercise its extraordinary writ jurisdiction in allowing the present writ application. Accordingly, the application is rejected. Sym ( Kishore K. Mandal, J.)