IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5357 of 2001 1. Madhuri Devi, wife of Late Rameshwar Prasad Gupta 2. Sheo Prasad Gupta @ Shiv Kumar Gupta, son of Late Rameshwar Prasad Gupta 3. Manoj Kumar Gupta 4. Jai Prakash Gupta 5. Vikash Kumar Gupta, all sons of Late Gopal Prasad Gupta 6. Bina Gupta, wife of Late Gopal Prasad Gupta, All resident of Ward No. 2 Aurangabad Town P.S. Aurangabad, Dist. Aurangabad ………… Petitioners versus 1. The State of Bihar 2. The Assistant Superintendent of Survey, Aurangabad at Gaya 3. The Superintendent of Survey, Aurangabad at Gaya 4. Girja Devi, wife of Bishwanath Prasad, resident of Ward No.2, behind Head Post Office, Aurangabad Town P.O., P.S. and District Aurangabad …………. Respondents. ----------- For the petitioners :- M/S Arun Bihari Mathur, Sr. Advocate and Anshay Bahadur Mathur, Advocate For the Respondents:- None ------------- 3. 16.12.2008 Heard learned counsel for the petitioners. No one appears for the Respondent No. 4 although Vakalatnama was earlier filed on her behalf. The petitioners pray to quash the order dated 5.1.2001 (Annexure-3) passed by the Superintendent of Survey, Aurangabad in Municipal Survey Appeal No. 230 of 2000 by which he has allowed the appeal filed by respondent no. 4 and set aside the order dated 19.5.2000 passed by the Assistant Superintendent of Survey, Aurangabad at Gaya in Objection Case No. 319/1999 in favour of the petitioners under Section 9 of the Bihar and Orissa Municipal Survey Act, and further ordered to open Municipal Khata in the name of Girja Devi, respondent no.4. - 2 - The short facts of the case are that certain lands which were recorded as Kaiser-e-Hind land in the cadestral survey were given by the Government to a Middle School known as Gait Middle School which was subsequently converted into Gait High School. Around the year 1936 the Managing Committee of the said school decided to sell the land with hostel building in public auction and during the said auction the grand father of the petitioners purchased 3.03 acres of land on 7.9.1936 with respect to which a registered deed of sale was also executed in his name. It is the case of the petitioners that after purchase their ancestors came into possession over the land and building in question and constructed house and Sahan over the land in dispute and also got their names mutated in Government Sarista and started paying rent to the State of Bihar and subsequently to the Municipality and were granted rent receipts with respect to the same. After the death of the original purchasers, namely, Rameshwar Prasad Gupta and Gopal Prasad Gupta, the petitioners came in possession over the land in dispute. The further contention of the petitioners is that in family partition the disputed land which consist of 0.45 acres situated in Ward No.2, Aurangabad Town under Aurangabad Municipality bearing C.S. Plot No. 354 fall in the share of the ancestors of the petitioners and the father-in-law and husband of Girja Devi, respondent no. 4 were tenant of the petitioners in the said house and were paying rent to the ancestors of the petitioners and thereafter to the petitioners. The respondent no. 4, on the other hand, claimed the land on the basis of the fact that the father of the said - 3 - respondent had taken settlement from the ex-landlord of Khata No. 192 C.S. Plot No. 354 area 0.45 acres and pursuant to the settlement Hukumnama was granted/executed in the name of father of respondent no.4 in the year 1953/54 and in family partition the land in question was given to her by her father orally and after constructing a house thereon she was residing therein. During the course of Municipal Survey the land was wrongly recorded in the name of the ancestors of the petitioners and respondent no. 4 filed objections under the Municipal Survey Act. By order dated 19.5.2000 the Assistant Superintendent of Survey rejected the objection under Section 9 filed by her and the Municipal Survey entry was maintained in the name of ancestors of the petitioners. Aggrieved by the same, the respondent no. 4 filed an appeal before the Superintendent of Survey, Aurangabad at Gaya who by order dated 5.1.2001 set aside the order of the Assistant Superintendent of Survey and ordered to re-open the Khata of the disputed land in the name of Girja Devi wife of Bishwanath Prasad, respondent no.4. Learned counsel for the petitioner submits that ten years prior to filing of the objection by present respondent no. 4, one Smt. Singari Devi had filed an objection Case No. 142/1989 under Section 9 of the Bihar and Orissa Municipal Survey Act against Rameshwar Prasad and others, (ancestors of the present petitioners) and the said case was dismissed by the Municipal Survey authorities. It is further pointed out by learned counsel for the petitioners that a proceeding under the Bihar Public Land - 4 - Encroachment Act was initiated against the ancestors of the petitioners in which the Circle Officer had passed order dated 16.7.1976 in favour of the ancestors of the petitioners which was upheld by order dated 8.2.1978 of the Collector, Aurangabad in Case No. 4/77-78 (Annexure-5) on the basis of the aforesaid facts. The said order was set aside by the Commissioner upon which the said Rameshwer Prasad Gupta and another, predecessors of the petitioners, filed CWJC No. 1774 of 1979 which was allowed by this Court by order dated 1.10.1981 by which this Court took note of the clear finding recorded by the Collector that the petitioners and their ancestors had continued to remain in possession for a period of more than 40 years and there is some kind of sanction also for the same and, therefore, the bona fides of the sale which took place in the year 1976 and the like could not be a matter for investigation under the mischief of the provisions contained in the Bihar Public Land Encroachment Act and these are matters which can be properly gone into only by the Civil Court in a regularly constituted title suit. This Court also noticed that it is the State or the Central Government who would be the aggrieved party against the petitioners and proper remedy for them is to go to Civil Court in a properly constituted suit and not to agitate the complicated questions within the summary proceeding. This Court is also of the view that the dispute of the present nature relating to title ought not to have been considered by the Municipal Survey authority, that too when the earlier objection under Section 9 as far back as in the year 1989 had been rejected on - 5 - 5.1.1990 in which order it was clearly held that the possession was found in favour of these petitioners and further it was difficult to deny the registered sale deed of the year 1936 particularly when a number of lawyers have witnessed the same at the relevant time. Thus, on a consideration of the facts and circumstances of the case, the writ petition is allowed. The impugned order dated 5.1.2001 passed by the Superintendent of Survey, Aurangabad in Municipal Survey Appeal No. 230/2000 is set aside and the order dated 19.5.2000 passed by the Assistant Superintendent of Survey in Objection Case No. 319/1999 is restored. It shall however, be open to the aggrieved person to raise the issue concerning title in a properly constituted suit before the Civil Court, if so advised, in accordance with law. S.Pandey (Ramesh Kumar Datta, J.)