Jharkhand High Court
Raj Kumar Verma vs The State Of Jharkhand on 9 December, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 4098 of 2018
Raj Kumar Verma ..... Petitioner
Versus
1. The State of Jharkhand
2. The Sub-Divisional Officer, Deoghar
3. Sangita Verma @ Sarita Verma @ Rinki
4. -/16/- annas Raiyats of Mouza-Shyamganj, P.O+P.S+District-Deoghar
..... Respondents
-----
CORAM
HON'BLE MR. JUSTICE RAJESH SHANKAR
-----
For the Petitioner: Mr. Onkar Nath Tiwary
For the State: Ms. Neetu Singh, A.C to G.A-IV
For Respondent No.3: Mr. Ankit Verma
-----
10/09.12.2021 The present writ petition has been filed for quashing the entire process
including the orders passed by the respondent No.2 in Rev. Misc. Case No. 14 of
2018-19 whereby the application filed by the respondent No.3 for demarcation
of the land with house situated under Mouza-Shyamganj No. 413, Jamabandi
No. 9/3387/2, Dag No. 237, area 2531 sq. ft. has been entertained.
2. The factual background of the case, as stated in the writ petition, is that
the petitioner had filed Probate Case No. 04 of 2003 before the learned Principal
District Judge, Deoghar for grant of probate of a registered Will dated
23.10.1996 which was subsequently converted into Title Suit No. 02/2012 on
filing of objections by the opposite parties of the said probate case. The other
defendants including the respondent No.3 appeared in the said suit and
contested the case challenging the genuineness of the Will, however, the
learned Principal District Judge, Deoghar passed the judgment dated
31.03.2018 allowing the application for probate in favour of the petitioner
holding that the plaintiff/petitioner has proved the genuineness of the Will by
adducing cogent and consistent evidence. Thereafter, the respondent No.3
made an application on 19.05.2018 before the respondent No.2 for demarcation
of the said land with house in view of the judgment dated 31.03.2018 passed by
the learned Principal District Judge, Deoghar in Probate Case No. 04 of
2003/Title Suit No. 02/2012 which gave rise to Rev. Misc. Case No. 14/2018-19.
The petitioner filed objection before the concerned Court on 23.07.2018 in
which he raised the issue of maintainability of the said application filed by the
respondent No.3 as well as the jurisdiction of the respondent No.2 to decide
such matter. However, the respondent No.2 passed the order as contained in
memo No. 374 dated 07.08.2018 whereby the Block Co-operative Officer,
Mohanpur was deputed as Magistrate for measurement/demarcation of the land
in question with house and the Sub-Divisional Court's Amin was directed to
measure the said land with house and to demarcate the same.
3. Learned counsel for the petitioner submits that the objection of the
petitioner was rejected by the respondent No.2 and the order for
measurement/demarcation of the land in question was passed in violation of the
principles of natural justice without giving an opportunity to the petitioner to
take recourse before appropriate forum against the said rejection. The
respondent No.2 failed to appreciate that by way of filing the said application,
the respondent No.3, in the garb of demarcation of the boundary, was actually
seeking remedy to specify and ascertain her share in the suit property which
was absolutely beyond the jurisdiction of the respondent No.2. The respondent
No.2 committed grave error in interfering with the jurisdiction of the Court of
learned Principal District Judge, Deoghar wherein the matter is still sub-judice.
The respondent No.2 also failed to appreciate the fact that the physical
possession over the suit property was with the petitioner being an executor and
delivery of possession can be given only by the competent Civil Court.
4. On the contrary, learned counsel for the respondent No.2 submits that
the existence of Will executed by Dr. Nawal Kishore Prasad Verma and the
probate order passed by the learned Principal District Judge, Deoghar dated
31.03.2018 are not in dispute. It is also not in dispute that 'one Kattha' land
equivalent to 2531 sq. ft. with house was given to the respondent No.3 by her
maternal grandfather, namely, Late Dr. Nawal Kishore Prasad Verma. It is further
submitted that the land was required to be demarcated to maintain peace and
to prevent bloodshed. The demarcation was only up to the extent of 1 Kattha
which was bequeathed to the respondent No.3 by the actual owner Late Dr.
Nawal Kishore Prasad Verma mentioning the said share of the respondent No.3
at paragraph 2 of his last Will executed on 23.09.1996.
5. Learned counsel for the respondent No.3 submits that the demarcation
was only for 1 Kattha which was congruent to the version of the Will and
therefore the alleged questions of law are not at all applicable in this case. The
petitioner is not aggrieved with the judgment dated 31.03.2018 passed by the
learned Principal District Judge, Deoghar which is evident from the fact that no
appeal was filed against the judgment dated 31.03.2018 passed in Probate Case
No. 04/2003/Title Suit No. 02/2012 and as such the petitioner and other
beneficiaries had accepted the judgment dated 31.03.2018. Since the petitioner
was one of the executors, he was directed by the learned Principle District
Judge, Deoghar to execute the said Will within a period of 6 months from the
date of the judgment, however, he did not execute the same with malafide
intention.
6. Heard learned counsel for the parties and perused the relevant materials
available on record. The petitioner is aggrieved with the proceeding initiated by
the respondent No.2 for demarcation of the property in question on the request
of the respondent No.3.
7. The thrust of the argument of learned counsel for the petitioner is that
the respondent No.2 has no jurisdiction to execute the order passed in Probate
Case No. 04/2003 by initiating a land demarcation proceeding. On the other
hand, learned counsel appearing on behalf of the respondent No.3 submits that
by virtue of the Will, the petitioner was given one Katha of land by the testator
and the said Will has been confirmed in Probate Case No. 04/2003. It has been
further claimed that the said order has attained finality as no party has
challenged the same by filing an appeal. Thus, the respondent No.3 filed an
application before the respondent No.2 for demarcation of her share in the said
property.
8. Even if the order passed in Probate Case No. 04/2003 has attained
finality, the same does not give any premium to the revenue/administrative
authority to proceed for executing the order passed in the probate case by
instituting a land demarcation case on the application of the respondent No.3.
The petitioner is the executor of the Will and if he has failed to execute it in
terms with the order passed in Probate Case No. 04/2003, the respondent No.3
has right to get it enforced through a competent Court of law. The
revenue/administrative authority is empowered to demarcate a land when there
exists doubt and dispute in respect of any boundary. However, in the present
case, the dispute is not about the boundary, rather the shares of the
beneficiaries are to be apportioned in terms with the order passed in the
probate case. As such, in my view, the respondent No.2 has exceeded his
jurisdiction in issuing the impugned order as contained in memo No. 374 dated
07.08.2018 for measurement of the said land. It is a settled law that if the
manner is prescribed for doing a certain thing, then the same must be done in
that particular manner and not otherwise.
9. In view of the aforesaid discussions, the present writ petition is allowed.
The proceeding initiated by the respondent No.2 in Rev. Misc. Case No. 14 of
2018-19 for demarcation of the land which falls under the share of the
respondent No.3, is hereby quashed. The respondent No.3 is however at liberty
to move before the competent Court of law for getting her share demarcated in
terms with the order passed in Probate Case No. 04/2003.
10. Consequently, I.A. No. 3392/2019 also stands disposed of.
Satish/- (RAJESH SHANKAR, J)
