IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2774 of 2002 RAM BRIKSH SAO, son of Late Chotan Sao, resident of Mohalla- Kalibari Tilha Mahabir Asthan, Police Station- Civil Line, District- Gaya. . . . . . . Petitioner. Versus 1. THE STATE OF BIHAR 2. The Superintendent of Survey, Gaya. 3. The Assistant Superintendent of Survey, Gaya. 4. Most. Shashi Devi wife of late Bachha Lal, resident of Mohalla- Tilha Mahabir Asthan, Kalibari Road, P. S.- Civil Line, District- Gaya. . . . . . . . Respondents. ----------- 5/ 14.12.2009 Heard learned counsel for the petitioner and the State. The instant writ application is directed against the order dated 30.10.2001 passed by Superintendent of Survey, Gaya in appeal Case No. 301 of 1990 whereby he amended the order passed by the Assistant Superintendent of Survey in Objection Case no. 260 of 1989 and directed to open the Khata in the name of respondent no.4 over the disputed plot no. 1147. The petitioner claims to be the owner of the disputed plot no. 1147 carved out from old survey plot no. 16241 situated in Mohalla Tilha, Kalibari, District Gaya, on the basis of purchase made from the co-sharer of the land. His name is mutated in the State of Bihar and has been paying rent also. He has also constructed a pucca house over the aforesaid plot after due sanction from Gaya Regional Development Authority. He submits that opposite party no.4 is claiming to be the owner of 8 Annas share of aforesaid disputed plot on the basis of being surviving heirs of the original land holder. He also submits that opposite party no.4 filed partition suit no. 26 of 1981 / 53 of 1974 for 8 Annas share in the disputed plot and also for allotment of separate - 2 - Takhta from the suit property. The suit was decreed in favour of opposite party no. 4. The petitioner has preferred First Appeal No. 361 of 1981 against the judgment and decree passed in partition suit which has been admitted on 28.06.2001. The Hon’ble High Court vide order dated 15.04.1991 stayed further proceeding in Execution case over the building in possession of the petitioner. The interim order was made absolute on 29.06.2001 till the final disposal of the appeal. The Hon’ble Court vide order dated 15.04.1991 also observed that in case the appeal is dismissed the petitioner / appellant would vacate the portion of the house allotted to the plaintiff, who is respondent no.4 in this writ application. The substituted heirs of opposite party no. 4 submits that the order of the appellate court is just unfair and does not need any interference. He submits that the judgment and decree of the Title suit has not been set aside and only Execution case for delivering the possession of disputed plot has been stayed. The Survey authorities while opening khata under Bihar and Orissa Muncipal Survey Act merely have to see the possession and prima facie semblance of title so that a squatter may not claim right under the Act, on the basis of having trespassed. However, the survey authority at the same time would not make roving enquiry as to who has right or title on the disputed land. The trial court decreed the suit in favour of plaintiff- respondent no.4 holding his title in respect of the disputed land. A first appeal is still pending against the aforesaid judgment and decree - 3 - passed by the trial court. The appellate authority vide its impugned order dated 30.10.2001 has directed for opening of khata in favour of respondent no.4 on the basis of decision in the title suit, subject to the decision in First Appeal. Thus, the appellate authority has not passed absolute order of opening of khata in favour of respondent no.4 but it is conditional to the decision in the first appeal no. 526 of 1988 preferred by the appellant. The appellate authority, thus, did not err in directing opening of khata in favour of respondent no.4 finding prima facie semblance of title of respondent no.4, as there was a court decree. The survey authorities while opening a khata in favour of a person has merely to see the possession and prima facie semblance of title, so that a squatter may not make his claim merely on the basis of being in illegal possession. Counsel for the petitioner, in support of his contention has relied upon a decision in the case of Kanhaiya Lal Sah & Ors. Vs. TheState of Bihar & Ors reported in 1999 (3) PLJR 318 “that Superintendent of Survey cannot decide the question of title between the parties. In the aforesaid case, the Superintendent of Survey proceeded to decide the question of title between the parties, which exceeded his jurisdiction, as such the impugned order passed by Superintendent of Survey, is set aside. In the instant case, a Court of competent civil jurisdiction has held that respondent no.4 has title over the land in question. On the aforesaid basis the appellate authority has directed for opening of - 4 - khata in favour of respondent no.4, which would be subject to the decision of this Court in First Appeal. The case law relied upon by the learned counsel for the petitioner in case of Kanhaiya Lal Sah & Ors. Vs. The State of Bihar & Ors reported in 1999 (3) PLJR 318 would not be applicable in this case, as the appellate authority did not proceed to decide the question of title between the parties, but has passed the order on the basis of title already decided by a competent Civil Court. As such this Court does not find any merit in this application and the same is accordingly dismissed. Uday/ (Samarendra Pratap Singh, J.)