IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18556 of 2010 LALLU PRASAD, SON OF Sri Ram Charitar Mahto, resident of Mohalla Nasariganj Devi Asthan, Babu Saheb Raod, P.O.Digha, P.S. Danapur, Patna. …PETITIONER Versus 1. THE STATE OF BIHAR. THROUGH THE DEPUTY COLLECTOR LAND REFORMS PATNA 2. THE DEPUTY COLLECTOR LAND REFORMS, PATNA SADAR,PATNA 3. THE ANCHAL ADHIKARI, PATNA SADAR, PATNA 4. RAM CHARITRA MAHTO, SON OF LATE DHANNU MAHTO 5. PRAHBLAD MAHTO SON OF SRI CHARITAR MAHTO …RESPONDENTS For the petitioner :Mr.R.R.P. Singh, :Manish Kishore & :Mr. Amrendra Nath Vishwas For respondent no. 4 & 5 :Mr. Sunil Kumar ----------- 03. 17.03.2011 Petitioner is the son of respondent no.4 and full brother of respondent no.5. He is aggrieved by the appellate order dated 08.09.2010 passed by respondent-Deputy Collector, Land Reforms, Patna Sadar, Patna in Mutation Appeal No.18/2008-09. Petitioner filed an application in camp court of respondent Anchal Adhikari on 20.05.2008 seeking mutation in respect of 60 decimals of land appertaining to khata no.1873, plot no.800, khata no.1321, plot no.786 and khata no.1308, plot no.789. Such prayer was made on the basis of memorandum of partition effected in the family. The respondent C.O. obtained report thereon from the Revenue Karamchari and allowed the application on the same day, i.e. 20.05.2008. Aggrieved by the 2 said order, the respondents filed appeal which has been considered and allowed. Respondent-Deputy Collector, Land Reforms has noticed that no notice was issued to the recorded tenant, i.e. respondent no.4 prior to allowing the prayer made on behalf of the writ petitioner. It is admitted position that wife of respondent no.5 and her children have already filed a suit seeking partition, vide title suit no. 428/08 which is pending in the court of Sub Judge-I Patna. It is also admitted at Bar that the writ petitioner has already appeared and filed his written statement. Learned counsel for the petitioner submits that the appeal was preferred beyond the period of 30 days as prescribed in section 15 of the Act. It is submitted that no application for condonation of delay was preferred and on this count also the appellate order is bad in law. It is next contended that there are diverse documents indicating that partition had already taken place in the family. Learned counsel for the petitioner, however, has not been able to demonstrate with reference to Annexures-7 and 7/A that notice was issued to the recorded tenant (respondent no.4) before passing the impugned order. It is submitted that camp was held in the village and, as such, it will be deemed that they had the knowledge. Learned counsel appearing on behalf of the respondent(s), on the other hand, submits that there is already a suit pending between the parties where the issue will be decided as to whether there was a partition in the family of respondent 3 no.4 as claimed by the writ petitioner. It is next contended that admittedly no notice was issued to respondent nos.4 or 6, particularly when respondent no.4 was the recorded tenant. It is submitted that period prescribed for filing appeal shall commence from the date of knowledge of the order. It is submitted that as soon as the petitioner became cognizant of the order, the appeal was preferred. I have heard counsel for the parties. It is admitted position that a suit is pending between the parties in which the writ petitioner has already appeared. Issue of partition in the family as claimed by the writ petitioner is the subject-matter of the suit. It is also seen from the records including the findings recorded by the appellate authority that no notice was issued and served on respondent no.4 before passing the order on 20.05.2008. Mutation neither creates title nor extinguishes it. There is already a suit pending between the parties in which they will be afforded opportunity to lead evidence and thereafter the court of competent jurisdiction shall decide as to whether there was a partition in the family or not. Regard being had to the aforesaid facts and position in law, this Court is not inclined to invoke its extraordinary writ jurisdiction in the matter by setting aside the appellate order. However, it is observed that impugned order dated 8.9.2010 (Annexure-11) shall abide by the result of the suit which is pending between the parties. Any observation relating to factum of partition in the family made in Annexure-7/A and/or 4 Annexure-11 shall not prejudice the party in the suit. The application is accordingly dismissed. hr ( Kishore K. Mandal )