IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6754 of 2002 1.SHANKAR CHOUDHARY, Son of Late Ram Pd. Choudhary 2.Raghunath Choudhary, Son of Late Jagdeo Choudhary 3.Mahadeo Choudhary, Son of Late Baldeo Choudhary All resident of village Siswania, P.O. Siswania, P.S. Uchakagaon, District Gopalganj … Petitioners Versus 1. THE STATE OF BIHAR 2. The District Magistrate, Gopalganj 3. The Circle Officer, Uchakagaon, District Gopalganj 4. The Settlement Officer, Gopalganj 5. Biswanath Chaudhary, S/o Goga Chaudhary, resident of village Siswania, P.s. Uchkagaon, District Gopalganj … Respondents ----------- 6. 18.4.2009 Heard counsel for the petitioners and the counsel for the State. The petitioners are aggrieved by the order passed by the Anchal Adhikari, the Collector under the Public Land Encroachment Act (hereinafter referred to as „the Act‟) dated 13/15.5.1999, as contained in Annexure 2, and its affirmance by the appellate order dated 13.5.2002 (Annexure 6). The two orders would go to show that after detailed analysis of evidence, the findings of fact has been arrived by both the authorities that the land in question, plot no. 937, is part and parcel of a public road and therefore, the encroachment thereon by the petitioners to the extent of half a decimal each over a public land was to be removed. 2 Counsel for the petitioners, however, would seriously controvert the aforementioned finding of fact on the basis of Khatiyani entry showing plot no. 131/937 to be a Kolhara in possession of Khiru Ahir allegedly the ancestors of the petitioners. On the basis of this, learned senior counsel is of the opinion that if the authorities of the State feels that the said land, which according to the petitioners is their Khatyani land, belongs to the State by way of a public road it must file a civil suit in stead of taking recourse to a summary proceedings under the Bihar Public Land Encroachment Act. For this purpose he has also placed reliance on the judgment of the Apex Court in the case of Government of Andhra Pradesh vs. Thummalia Krishna Rao & anor., reported in AIR 1982 S.C. 1081 and the judgment of this Court in the case of Bachcha Prasad vs. State of Bihar & ors., reported in 1999(2) PLJR 329. Counsel for the State, on the other hand, on the basis of the counter affidavit filed in this case would submit that the plea of the petitioners that they are 3 Khatyani Raiyat of the land is itself absolutely incorrect because plot no. 131/937 has been shown as Rasta in the revisional survey record and map prepared in 1970 and during preparation of that Khatiyan, in Kaifiat column (remarks column) „Ba-Kabje Khiru Ahir‟ was mentioned by describing the nature of the land to be Kolhara. It may be in fact useful to set out the specific case of the respondents as with regard to the alleged encroachment as stated in relevant p0art of paragraphs no. 2, 3, 7, 10 of the counter affidavit which reads as follows: “2. … … … the land in dispute bearing Khata No. 130, plot no. 131/937 in Mauza Siswania, has been shown as Rasta, (Public Passage) in Revisional survey Map prepared in 1917, during the Revisinal Survey operation, it appears that the petitioner‟s ancestors during the revisional survey operation and preparation of Khatian somehow managed to enter their names in Kaifiat column as „Ba-Kabje Khiru Ahir measuring about 35 decimals/ 9 khatta and 8 dhurs‟. It would be relevant to mention here that plot no. 198, is 4 the plot adjoining to plot no. 131/937 whereof the petitioner is in possession with his residential pakka building whereby the petitoner‟s ancestors had tried their best to have their factual possession by way of manipulation of managed entry at the relevant time and period some where in the year 1917 whereas Khatian appertaining to plots no. 131, 132, 133, 134 and 135, commonly (in boundry column) show that the northern boundry ie 131/927 is rasta, which goes to show that the plot in question vide plot no. 131/937 is Rasta, shown in the map as well as in Khatian finding mentioned in other plots as aforementioned. It is further stated that the Circle Officer Uchkagaon having initiated an encroachment proceeding vide Encroachment Case No. 2/ 98-99 sought for the report from Anchal Amin, which report was received to the Circle Office on 29.5.1998. Perusal of the report submitted by Anchal Amin indicates inter alia that nothing like Cane-crusher (Kolhawar) exists there as mentioned by the petitioner in paragraph 3 of the writ petition. 3. … … … the house of the petitioner stands in plot no. 5 198 and not in plot no. 131/937, the plot in question, which is also clear on perusal of Anchal Amin‟s report; it is further stated that it is out right malafide and denied that Hathuawa Raj, in the year 1937, granted the petitioner the permission to erect pakka house in the plot in question, which is yet to be erected whereas; it is crystal clear that the house of the petitioner stands in the plot bearing no. 198, which is the adjoining plot of the plot in question. 7. … … … the petitioner has not been given any Jamabandi number as has been claimed him, it is further mentioned that in the year 1996-97 the plot in question which is Rasta had been brick soaled, from the M.P. quota and thereafter the petitioner encroached the portion of the land by setting his Palani, Nad and Khuta. 10. … … … that the autorities or not going to demolish the house of the petitioner as stands in plot no. 198 whereas the authorities are concerned to remove the encroachment as per the order dated 13.5.2002, passed by the District Magistrate from the plot in question bearing plot No. 6 131/937.” It has to be noted that despite service of the aforesaid counter affidavit, no rejoinder has been filed by the petitioners and thus the facts asserted by the respondents would be deemed to be admitted by the petitioners. Counsel for the petitioners however seeks to explain the document enclosed as Annexures A, B and C, orally by taking a plea these entries in revisional survey records showing the „Rasta‟ in the land in question is by way of mistake and the possession of the ancestor of the petitioners with Kolhara land would mean that they were engaged in crushing of sugarcane and were land for that purpose. The fallacy in such submissions however gets exposed from the own case of the petitioners because they say that earlier the land belonged to Hathua Raj and it is Hathua Raj who had settled the land in the name of the petitioner. No paper of settlement is available. This Court has to again proceed in terms of the provisions of 7 Bihar Land Reforms Act that Hathua Raj while it had settled the land to the ancestors of the petitioners, it must have also submitted his return. No such return has been produced by the petitioners before any authority or this Court. That is not the end of the matter. In the proceedings in question under Bihar Public Land Encroachment Act when not a chit of paper of title had been produced by the petitioners, this Court has to hold that in the entries in revision survey record showing the land to be rasta (Road) is nothing else but public. Only because in the remarks column of such of R.S.entry the name of the ancestor had been shown by way of possession that would not mean that the petitioners have also title over such public land. In any event the petitioners did not discharge the onus of proving title to the said land and thus the finding of facts recorded by the two authorities as with regard to land in question being public land cannot be reversed by this Court on mere ipsi dixit of the parties. That being so, the judgment of the Apex Court in the case of Govt. of Andhra 8 Pradesh (supra) will have no application because here there is hardly any dispute much less a complicated dispute. The case in hand is plain and simple that from the evidence including maps and revenue record, the land in question is a public road. Plot no. 131/937 in fact is being claimed by the petitioners as their raiyati land while the State is claiming it as public land and therefore, on the basis of the materials on record as brought in the unrebutted counter affidavit and its annexures containing extract of revisional survey records entries showing the land in question to be Rasta (Road) it has to be held that the petitioners had grabbed the land in question as shown in the report of Amin some time in 1998 and the same actually belongs to State till such entries made in revisional survey records is declared to be wrong and incorrect by a competent civil court in a title suit filed by the petitioners for getting their title declared after impleading the State in such suit. The observation made in the case of Bachcha Prasad (supra) will have to be 9 understood in the context of the facts of that case where there was Zila Parishad‟s case that right from 1889 in the revisional survey record the name of the ancestors of the petitioner of that case having constructed a house thereon was recorded and the Zila Parishad wanted to dislodge that. Here there is no house existing on the portion of the land as would be apparent from the finding recorded by the Anchal Adhikari, the Collector under the Act. That being so, the judgment of this Court in the case of Bachcha Prasad (supra) will have no application. In the result, this application being devoid of any merit is dismissed. As the encroachment proceeding was abruptly put to a grinding halt and could not be completed on account of an interim order passed by this Court on 6.8.2002, the same is hereby vacated with a direction to the Anchal Adhikari to remove the encroachment, if any, still existing on the land within 15 days of the receipt of a copy of this order. (Mihir Kumar Jha,J.) Surendra/