IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13035 of 2010 Binoda Nand Jha son of late Raj Bansi Jha, resident of village Behta, P.O. & P.S. Benipatti, District Madhubani, … …Petitioner Versus 1. The State Of Bihar, 2. The Settlement Officer, Darbhanga, 3. The Assistant Survey Settlement Officer, Benipatti (Madhubani), 4. Sri Narain Jha, son of late Baidya Nath Jha, resident of village Benipatti, P.O. & P.S. Benepatti, District Madhubani, … … Respondents For the Petitioner: Mr. Purushottam Jha, Advocate For the State: Mr. Deen Bandhu, GP IX For Res. No. 4: Mr. Sameer Ranjan, Advocate … 4 14.09.2011 Petitioner seeks quashing of the order dated 29.09.2009 passed in Revision Case No. 37 of 2008 filed under section 108 of the Bihar Tenancy Act, 1885 (hereinafter to be referred to as “the Act”) by the Incharge Settlement Officer, Darbhanga, whereby and whereunder the revision concerned has been dismissed without going into the merit of the case, on the ground that the same is time- barred. Petitioner further seeks direction for remitting back the matter for fresh consideration by the revisional authority along with other relief, if any, for which the petitioner is found entitled to. The petitioner claims that respondent no. 4 filed T.S. No. 26 of 2002 on 11.02.2002 claiming his right, title 2 and possession over 2.5 dhurs of land of plot no. 2852(old) appertaining to khata no. 146 on the basis of sale deed executed on 10.09.1954 by one late Rachapal Ram in favour of his mother late Anandi Devi. The aforesaid suit was admitted for hearing and the petitioner-defendant no. 2 appeared and filed his written statement on 22.11.2002 taking a stand that, after revisional survey the revisional survey plot no. 5435 created out of old Survey Plot no. 2851 having an area of 7 decimals equivalent to 1 katha 6 dhurs upon which a residential house is standing for more than 50 years has been recorded in the name of the father of the petitioner, namely, Raj Banshi Jha. Thereafter, respondent no. 4 filed a suit under section 106 of the Act by presenting a plaint, which was numbered as Suit No. 16 of 2003, before the Survey Settlement Officer, Darbhanga along with an application for condoning the delay under section 5 of the Limitation Act, 1963. A copy of the aforesaid petition has been appended as Annexure 5. It has been stated therein that the plaintiff could come to know regarding preparation of records of right on 25.07.2003 and, thus, he has filed the suit at belated stage. The petitioner also appeared in the suit and filed his objection/written statement and finally the matter 3 was decided on 09.08.2006 vide Annexure 7 by the Assistant Settlement Officer, Benipatti, Madhubani allowing the suit and holding that 0.07 decimals of land of plot no. 5435 appertaining to khata no. 1309 should be deemed to have been recorded in the name of the plaintiff. The petitioner challenged the aforesaid order by filing a Survey Revision Case No. 37 of 2008 under section 108 of the Act along with a petition for condonation of delaythat has been dismissed by the impugned order on the ground of being time barred. At the time of hearing the petitioner has raised only one issue before this Court regarding the jurisdiction of the Assistant Survey Settlement Officer to entertain the suit even after delay of more than 11 years. Respondent no. 4 has appeared and filed counter affidavit. I have heard the parties and perused the record of the case. The sole issue for determination in the suit is as to whether the suit filed under section 106 of the Act for correction of the entries in the records of right after delay of more than ten years should have been entertained by the authority concerned or in view of the fact that it was barred 4 by limitation the concerned authority did not have any jurisdiction to hear the same. Learned counsel for the petitioner submitted that the suit under section 106 of the Act being a suit of original nature, there was no question of entertaining the same after expiry of 90 days as provided under section 106 of the Act itself for the reason that the provision of condonation of delay as contained in section 5 of the Limitation Act would only be applicable in case of an appeal or application. It has been urged that it is well settled that the delay in filing of a suit cannot be condoned by the court concerned. Learned counsel has placed reliance upon a decision rendered by a Division Bench of this Court in Tilkeshwar Singh @ Tilkeshwar Prasad Singh v. The State of Bihar and others (2004(3) Patna Law Journal Reports, 114) According to the petitioner, it has been held in the aforesaid case that the court while entertaining a suit under section 106 of the Act has no power to condone the delay even on the sufficient ground after the expiry of the period of limitation for the reason that it has been vested with the power to condone the delay with regard to appeals and applications only. 5 Learned counsel for respondent no. 4, however, submitted that the petitioner has come before this Court without exhausting the statutory alternative remedy under section 109A of the Act, which provides a forum of second appeal against such an order, and, thus, this writ application should be dismissed on that score itself. Learned counsel further submitted that respondent no. 4 filed a petition under section 5 of the Limitation Act which was considered by the concerned court/authority and, thereafter, the matter has been decided on merit. Thus, it can safely be held that there is deemed condonation of delay. On the other hand, learned counsel for the petitioner submitted that a petition of 1-2 paragraphs was filed for condonation of delay without explaining the delay and only disclosing that the plaintiff came to know regarding the fact of such final publication by the survey authority in the year 2002 itself. The same was though noticed by the court/authority concerned, however, there is no consideration in the order passed by the Assistant Settlement Officer to show that the delay has been condoned after finding the explanation to be sufficient. That apart, he reiterates his stand that the suit was not maintainable in view 6 of the decision of the Division Bench in Tilkelshwar Singh (supra). So far the question of alternative remedy is concerned, it has been submitted that since the entire proceeding itself was without jurisdiction, even if the petitioner has not moved in appeal, this Court while exercising its extra-ordinary jurisdiction under Article 226 of the Constitution of India can decide this matter. Learned counsel has placed reliance upon a decision of the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and o9thers ((1998)8 Supreme Court Cases, 1), holding that where the order or the proceeding is wholly without jurisdiction in such cases it would be open for the High Court under Article 226 of the Constitution of India to entertain a writ application. I find force in the submission raised on behalf of the petitioner. The record of rights is prepared under Part I Chapter X of the Act. Firstly, a draft publication is prepared and published under section 103A of the Act after disposal of the objection, if any, and, thereafter, a final publication of the records of right is made. Section 106 of the Act contains a provision for institution of a suit before the Revenue 7 Officer by presenting a plaint on stamped paper for the decision of any dispute with regard to any entry which a Revenue Officer has made or any omission which the said officer has made, in the record. The provision as contained in section 106 of the Act is quoted as under:- “S. 106. Institution of suit before a Revenue – officer. - In proceedings under this Part, a suit may be instituted before a Revenue officer at any time within three months from the date of the certificate of the final publication of the record-of-right under sub-section (2) of section 103A of this Act, by presenting a plaint on stamped paper, for the decision of any dispute regarding any entry which a Revenue – officer has made in, or any omission which the said officer has made from the record, Whether such dispute be between landlord and tenant, or between landlord of the same or of neighbouring estates, or between tenant, and tenants, or as to whether the relationship of landlord and tenant exits, or as to whether land held rent free is properly so held, or as to any other matter; and the Revenue – officer shall bear and decide the dispute : Provided that in any suit under this section the Revenue-officer shall not try any issue which has been, or is already, directly, and substantially in 8 issue between the same parties, or between parties under whom they or any of them claim, in proceedings for the settlement of rent under this Part, where such issue has been tried and decided, or is already being tried, by a Revenue-Officer under section 105A.” Section 107 of the Act provides the procedure to be adopted by the Revenue Officer for disposal of the proceeding under sections 105, 105A and 106 of the Act. Subject to the Rules made by the State Government under the Act, it has adopted the procedure laid down in the Code of Civil Procedure for the trial of the suits and also expressing that the decision in every such proceeding shall have forced and effect of a decree of a Civil Court in a suit between the parties which, of course, would be subject to the revision and appeal provided under sections 108 and 109A of the Act. Coming to the provisions of section 5 of the Limitation Act, a plain reading thereof reveals that the same would be available for the purpose of condonation of delay in an appeal or application only. The legislature in its wisdom has ousted the suits from the ambit and scope of section 5 of the Limitation Act subject to the relaxation in 9 some special cases specified under the Limitation Act such as sections 6, 7 and 8 etc. Whereas sub-section (2) of section 29 of the Limitation Act clearly discloses that in case of any period of limitation given in the special or local law, which prescribes for suit or application, different than the provision provided in the Schedule of the Limitation Act, the provision of section 3 of the Limitation Act shall apply as if the period has been prescribed in the Schedule thereof. To understand it better, the sub-section (2) of section 29 of the Limitation Act is quoted as under:- “29(2). Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.” Section 3 of the Limitation Act provides that subject to the provisions as contained in sections 4 to 24(inclusive), every suit instituted, appeal preferred and 10 application made after the prescribed period of limitation shall be dismissed even though the limitation has not been set up as defence. Upon conjoint reading of the aforesaid provisions of the Limitation Act and the Bihar Tenancy Act it can safely be concluded that the Act being a special enactment, would be governed by the aforesaid provisions of the Limitation Act and as such the bar created by section 3 of the Limitation Act in entertaining the suit after the period of limitation would definitely mean to be a period of limitation which has expressly been provided in section 106 of the Act, i.e., within three months from the date of final publication of the record of rights. . The Division Bench in Tilkeshwar Singh (supra) upon consideration of the relevant provisions of law and the judicial pronouncements had held that the suit filed under section 106 of the Act is a suit and is covered by the provisions of the Limitation Act and there is no power vested in the court/authority to entertain the limitation petition filed under section 5 of the Limitation Act and condone the delay. The entertainment period after condoning the delay was impermissible in law. Coming to the second question raised by 11 respondent no. 4 regarding alternative remedy being available to the petitioner is concerned, this submission is noted only to be rejected in view of the fact that I have already held following a decision of the Division Bench of this Court in Tilkeshwar Singh(supra) that entertainment of suit after period of limitation expressed in section 106 of the Act itself was impermissible. Thus, entertainment of such suits was not within the jurisdiction of the Settlement Officer concerned. Once having held so, the proceeding itself being without jurisdiction, as has been held in Whirlpool Corporation(supra), this Court can entertain the writ application. In above view of the matter, there would be no requirement of remitting back the matter for a fresh consideration by the revisional authority also as the entire settlement proceeding itself is without jurisdiction. As a result, this application is allowed and the orders passed by the Assistant Survey Settlement Officer in revision, as contained in Annexures 7 and 8, are hereby quashed and set aside on their being without jurisdiction. Before parting with the matter I must indicate that it being also admitted that Title Suit No. 26 of 2002 is pending for consideration before the Sub Judge, Madhubani, 12 and by now it is well settled that the suit or the proceeding under section 106 of the Act altering or confirming the entries made in the record of rights merely indicates possession of the concerned party, as the authorities concerned do not have any power to decide the title. Even the finding recorded on the question of possession would not operate as res judicata in a subsequent suit where the relief for possession is sought for establishing the title. In above view of the matter, it is clarified in view of the fact that this order has been passed setting aside the orders passed by the Revenue Authorities as contained in Annexures 7 and 8 only on the point of those having been passed without any jurisdiction. The concerned Title Suit shall proceed in accordance with law. SC ( Dr. Ravi Ranjan, J.)