IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.17497 OF 2009 1. SRI AMAR KASERA 2. SRI ANUP KASERA BOTH SONS OF SHRI GOPAL KASERA, RESIDENT OF MOHALLA CHAMDORIA, PATNA CITY, POST OFFICE PATNA CITY, POLICE STATION CHOWK, DISTRICT PATNA AND PRESENTLY RESIDING AT PRACHI KANISHK APARTMENT, BAZAR SAMITI ROAD, POST MAHENDRU, POLICE STATION BAZAR SAMITI, DISTRICT PATNA VERSUS 1. THE STATE OF BIHAR THROUGH THE SECRETARY, URBAN DEVELOPMENT AND HOUSING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 2. THE PATNA MUNICIPAL CORPORATION, THROUGH THE TOWN COMMISSIONER 3. THE TOWN COMMISSIONER, PATNA MUNICIPAL CORPORATION 2 & 3 HAVING OFFICE AT MAURYA LOK COMMERCIAL COMPLEX, DAK BUNGALOW ROAD, P.S. KOTWALI, DISTRICT PATNA 4. SMT. MEERA GUPTA, WIFE OF SRI ASHOK KUMAR GUPTA, RESIDENT OF MOHALLA SALIM PUR AHRA, P.O. G.P.O., P.S. GANDHI MAIDAN, TOWN AND DISTRICT PATNA, PRESENT AT C/O ASHOK KUMAR GUPTA, CALCUTTA AUTO CENTRE, MADHAV MARKET, OPPOSITE BIKRAM HOTEL, EXHIBITION ROAD, PATNA ********** FOR THE PETITIONERS :- MR. SHASHI SHEKHAR DWIVEDI, SR. ADV. MR. J. S. ARORA, ADVOCATE FOR THE S T A T E :- MS. PRIYA GUPTA, AC. TO AAG 12 FOR THE P. M. C. :- MR. BISHWA BIBHUTI KUMAR SINGH, ADV. FOR RESP. NO. 4 :- MR. RAGHIB AHSAN, SR. ADV. MR. VINOD KUMAR, ADVOCATE *********** 11 01/12/2011 The writ petitioners have filed this writ application challenging the order dated 14.09.2009 passed by the Commissioner, Patna Municipal Corporation in Mutation Case No. 39 of 2000. This was a case filed on behalf of Shakuntala Devi, wife of Late Hanuman Das Mehta for mutation of plot no. 22C, Block A, Rajendra Nagar Road, Police Station Kadam Kuan, District Patna. 2 Before going any further with this judgment, this Court would like to state the facts of this case, which are essential for deciding the matter. Mangal Das Mehta had two wives, Bedami Devi and Phulmati Devi. Bedami Devi had one son and one daughter. Sitaram Mahto predeceased his father, leaving behind his wife Jago Devi and Sharda Devi (daughter of Bedami Devi). Phulmati Devi had one son and two daughters. Subhash Mehta @ Hanuman Das Mehta married to Shakuntala Devi, The two daughters of Phulmati Devi are Vidya Devi and Laxmi Devi. MANGAL DAS MEHTA D. 12.11.1964)  --------------------------------------------------------   FIRST WIFE SECOND WIFE BEDAMI DEVI PHULMATI DEVI   ------------------     Sitaram Mahto Sharda Devi  (predeceased his --------------------------------------------- Father)    = Jago Devi Subhash Mehta Vidya Laxmi Hanuman Das Mehta Devi Devi = Shakuntala Devi The petitioners claim their title through Jago Devi. It is stated that Jago Devi had executed a deed of gift in favour of her brother and others in Bombay on 3 10.07.2001. Later, the deed of gift was registered at Patna on 05.10.2007. Bhubneshwar Prasad, the brother of Jago Devi sold the lands and house in dispute to the petitioner on 03.10.2008. The private respondents, namely, shakuntala Gupta and Meera Gupta also claim that their names should be mutated. Shakuntala Devi is the wife of Hanuman Das Mehta. Shakuntala Devi sold the lands and the house thereon in question to Ranjeet Singh at Kolkata on 27.01.1995. On 28.01.1995, Ranjeet Singh sold the said home to Meera Gupta, respondent no. 4 to this writ application. The admitted facts is that plot nos. 665 and 666 in Rajendra Nagar was a huge piece of land, which belong to Mangal Das Mehta. This piece of land was acquired by the Patna Improvement Trust. Subseqnetly, the Patna Improvement Trust carved out many plots from the aforesaid plot nos. 665 and 666. Plot No. 22C, the plot in dispute here, is situated in Block-A, Rajendra Nagar, Road No. 1. The Patna Improvement Trust auctioned the plots of land acquired by it. Mangal Das Mehta being one of the highest bidders as well as the land owner was given preference and he purchased a piece of land on 27.04.1963. Mangal Das Mehta thereafter requested the Patna Improvement Trust to allow him to purchase the land in the name of his 4 minor son Hanuman Das Mehta, which was permitted and as such, a deed was registered in the name of Hanuman Das Mehta on 18.08.1972. In the year 1973, Jago Devi, wife of Sitaram Mahto filed Title Suit No. 89 of 1973/21 of 1982 seeking partition. Hanuman Das Mehta was the defendant in the said suit. The suit was decreed in favour of Jago Devi and by virtue of the decree passed in the suit, plot nos. 664 and 665 was allotted in her share. In the said suit, obviously, the Patna Improvement Trust was not made a party. Subsequent to that, the decree was put into execution which is Annexure-3 to the writ application. The execution indicates that Shakuntala Devi, wife of Hanuman Das Mehta duly handed over possession of the lands and house in which she was living to Jago Devi. Jago Devi got her name mutated in the year 1994 with the Patna Municipal Corporation and subsequently, in the year 2002 with Patna Regional Development Authority. The dispute has arisen after the sale deed was executed by Shakuntala Devi in the year 1995 in favour of Ranjeet Singh, who subsequently executed the sale deed in favour of Meera Gupta. Shakuntala Devi thereafter filed an application before the concerned authority for cancellation of the mutation in the name 5 of Jago Devi. The Commissioner, Patna Municipal Corporation after noting all the facts including the fact that the plot nos. 665 and 666 was acquired by Patna Improvement Trust and the fact that part of land was transferred to Hanuman Das Mehta, the fact that suit was filed by Jago Devi, by which she had got a decree in her favour has finally concluded that Jago Devi has failed to prove her case by documents and any oral evidence and has thus ordered for mutation in the name of the intervenor petitioners i.e. Smt. Meera Gupta in place of Jago Devi. The said order is passed on the basis of the fact that the Patna Regional Development Authority claims that after auctioning plot nos. 665 and 666, the full amount was deposited in the Government Treasury. This Court fails to see how the report of the Vigilance Officer stating that the amount was deposited in the Government Treasury would go against Jago Devi. It is a fact that the Patna Regional Development Authority was not made party in the suit. However, the claim of Jago Devi in the suit was for a partition of the property belonging to Mangal Das Mehta. The Court found that Jago Devi was entitled to partition, and therefore, has allotted plot nos. 664 and 665 in favour of Jago Devi. Having held that the plot nos. 664 and 665 were to be in the share of Jago Devi, 6 Jago Devi thereafter executed the decree by taking possession of that part of land & property, which was in possession of Shakuntala Devi, wife of Hanuman Das Mehta. Obviously, Shakuntala Devi had come into possession of the said property by virtue of the fact that Mangal Das Mehta, her father-in-law, was settled the lands by the Patna Improvement Trust who executed a deed in favour of Hanuman Das Mehta, son of Mangal Das Mehta. The Patna Improvement Trust having executed a specific plot in favour of Hanuman Das Mehta, the right of Jago Devi by virtue of the partition suit would be superior to the right of Hanuman Das Mehta, and therefore, she succeeded in getting possession of the property in question by virtue of Execution Case No. 06 of 1989 from Shakuntala Devi, who has given in writing that she has handed over possession to Jago Devi. On the basis of her success in the partition suit and subsequently passed through the Execution Case No. 06 of 1989, Jago Devi thereafter applied for mutation and was duly mutated. The claim of Meera Gupta that she is in possession of the land by virtue of the sale deed executed by Ranjeet Singh, who allegedly purchase the land from Shakuntala Devi cannot lead to the conclusion that Shakuntala Devi was in possession or 7 that Ranjeet Singh ever came into possession by virtue of the sale deed or for that matter Meera Gupta came into possession from Ranjeet Singh. To substantiate the fact that Meera Gupta is not in possession of the property in question, Counsel for the petitioners has referred to Annexure-11 which is the plaint of the title suit filed by Meera Gupta being Title Suit No. 246 of 2001. The prayer in the suit aforesaid at paragraph 20 is as follows:- 20. That the plaintiff seeks the following reliefs:- (a) On adjudication of the title of the plaintiff and non-title of defendant no. 1 in the property in suit detailed in schedule-1 below it be declared that the possession of the defendant no. 1 over the suit premises is illegal and unauthorized. (b) On grant of relief no. (a) decree for recovery of possession of the suit property be passed in favour of the plaintiff and against the defendant and the plaintiff be put on possession over the suit premises after evicting the defendant no. 1 through the process of the court. (c) …………………………… (d) ……………………………. It would also be relevant to refer to the 8 Schedule-1, which describes the land. Schedule-1 Description of the property in suit Mohalla Circle Plot No. Block Holding No. Rajendra 29A 22(C) A 4/352/1 Nagar, Road PIT No. 1, P.S. Kadamkuan, Area 3 katha. Distt. Patna Bounded as follows:- North :- Plot No. 21 (C) South :- Plot No. 23 (C) East :- Road West :- Boundary line of Rajendra Nagar And Kusum Gupta The relief sought for by Meera Gupta in the plaint amounts to an admission that she is not in possession of the property plot no. 22C appertaining to Circle No. 29A, Block A, Holding No. 4/352/1, area 3 kathas in Rajendra Nagar. Without considering this document which admittedly shows that Meera Gupta is not in possession of the land, the Commissioner, Patna Municipal Corporation could not have cancelled the mutation of Jago Devi or the persons claiming through her. Stranger still is the fact that the Commissioner has ordered that the name of Meera Gupta should be mutated. The possession is an important issue in a case for mutation. Although, the concerned authority is not required to decide the title of the parties, but 9 certainly it can take cursory look into the title, for the purpose of determining that the party claiming the possession of the land has some semblance of title to the lands in question. An issue has been raised on behalf of the Patna Municipal Corporation/Patna Regional Development Authority that plot no. 22C has to be identified and without identifying the land, it cannot be said that the petitioner was in possession of the land and as such, the order passed by the Commissioner, Patna Municipal Corporation is justified. This Court granted time to Patna Municipal Corporation as well as the private respondents to explain or disclose from which part of the original plot, 22C was carved out. The parties were not able to disclose this fact. More over, even according to the case of the Patna Municipal Corporation, plot nos. 665 and 666 was the plot which was acquired by the Patna Improvement Trust and plots were carved out after the aforesaid acquisition. It is also the case of the Patna Improvement Trust that a part of the plot was allotted to Hanuman Das Mehta, husband of Shakuntala Devi. Therefore, it cannot be argued or believed that Hanuman Das Mehta or for that matter, Shakuntala Devi could have been in possession of any other plot except that which was allotted by the 10 Patna Improvement Trust. At the end of the argument, Counsel appearing on behalf of respondent no. 4 submits that he has filed chirkut for obtaining information as to from which plot, plot no. 22C has been carved out. In my opinion, it is not really required. It was just a query of the Court to substantiate the fact that plot no. 22C could be out of no other plot, because it is nobody’s case that Hanuman Das Mehta was allotted or possess any other land in Rajendra Nagar. The order impugned as contained in Annexure-13 is accordingly quashed. This writ application is allowed. Anand ( Sheema Ali Khan, J.)