Balmiki Prasad And Anr vs The State Of Bihar And Ors
2021 Latest Caselaw 5016 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.6222 of 2017
     ======================================================

1. Balmiki Prasad S/o Late Bhatu Mahto,

2. Awadesh Prasad @ Bachchu Prasad, S/o Late Bhatu Mahto, Both R/o Village- Tilaiyan, P.O.- Pathora, P.S.- Chhabilapur, Rajgir, District- Nalanda.

... ... Petitioners Versus

1. The State Of Bihar

2. The Principal Secretary, Road Construction Department, Bihar, Patna.

3. The District Magistrate, Nalanda.

4. The District Land Acquisition Officer, Nalanda.

5. The Sub-Divisional Officer, Rajgir, Nalanda.

6. Circle Officer, Rajgir, Nalanda.

... ... Respondents ====================================================== Appearance :

     For the Petitioners    :       Mr.Mrigank Mauli (Sr. Advocate) with
                            :       Mr.Prince Kumar Mishra (Advocate)
                            :       Mr.Sanjay Kumar (Advocate)
     For the Respondents    :       Mr.Sajid Salim Khan (SC 25)

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 27-10-2021

Whether a High Court exercising power of judicial

review under Article 226 of the Constitution of India can enter into

the question of ownership or title in respect of any immovable

property and whether the entries in revenue records confer a title

on a person(s) are the two main issues which require to be

addressed by this Court in the present proceeding. Both the issues

are no more res integra and have been conclusively decided by the

Supreme Court in negative in a series of decisions. Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

2. Reference shall be made to the law laid down by the

Supreme Court on these issues later after taking note of the nature

of relief sought for by the petitioners and rival pleadings and

materials brought on record by the contesting parties in that

regard.

3. I have heard Mr. Mrigank Mauli, learned Senior

counsel appearing on behalf of the petitioners assisted by Mr.

Prince Kumar Mishra and Mr. Sanjay Kumar, learned Advocates.

Mr. Sajid Salim Khan, learned SC 25 has assisted this Court on

behalf of the State of Bihar.

4. The land, which is subject matter of dispute, has been

described as Khata No. 74, Khesra No. 53 falling in Mauza-

Barhari, Thana No. 481 in the District of Nalanda admeasuring

1.95 acres. The said land has been transferred by the Divisional

Commissioner, Patna by way of inter departmental transfer to

Road Construction Department, Government of Bihar, among

other lands (3.325 acres) for construction of Rajgir-Bypass Road,

treating the same to be Gair-Mazarua Thikedar Parti Kadim

Government land. The petitioners want, on the basis of the

pleadings and photo-stat copies of the documents annexed with the

writ petition and supplementary affidavits, a declaration from this

Court that they have title and possession over the said land. After Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

such declaration, the petitioners are seeking from this Court a

direction for publication of notification in terms of Section 11 and

Section 19 of the Right to Fair Compensation and Transparency in

Land Acquisition/Rehabilitation and Resettlement Act, 2013

(hereinafter referred to as the New Act); preparation of award in

terms of Section 23 of the New Act and; for payment of

compensation in lieu of acquisition of the land. The petitioners have

been informed, vide Letter No. 1528 dated 26.09.2016, issued by the

Land Acquisition Officer, Nalanda that the land in question was in

the nature of Gair-Mazarua Thikedar and, therefore, a Government

land. The said communication dated 26.09.2016 is sought to be

challenged by seeking amendment through I.A. No. 01 of 2021.

This is to be noted that during the pendency of this application, the

Circle Officer, Rajgir has recommended to the Additional

Collector, Nalanda for cancellation of jamabandi created in favour

of these petitioners. The said communication dated 31.12.2020 is

also sought to be challenged in the present proceeding by seeking

amendment through the said I.A. No. 01 of 2021on the ground that it

is impermissible for the Additional Collector, Nalanda to cancel long

standing jamabandi in favour of the petitioners in a summary

proceeding.

5. It is the petitioners' case as pleaded in the writ

application and other pleadings on record that by virtue of a Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

Hukumnama executed by the then Zamindar Saiyad Shah Masud

Ahmad on 24.03.1945 in favour of the petitioners' father Bhatu

Mahto, he was considered as one of the Raiyats. The land was

originally recorded as Gair-Mazarua Thikedar and when the

intermediaries interest vested in the State of Bihar, the ex-

intermediaries filed return and declared the grandfather of the

petitioners' Bulak Mahto as one of the Raiyats and Jamabandi was

created in his favour. Subsequently, his name was included in

register of payment under the State of Bihar and rent was realized

from him. A copy of the said Hukumnama has been brought on

record by filing second supplementary affidavit on 31.10.2018. It

is the petitioners' case that rent was being realized from their

father, who was put in possession for a total area of 9.5 acres. The

petitioners have brought on record photo-stat copies of the rent

receipts. Through Mutation Case No. 58/7 (27) 1965-66 name of

father of the petitioners namely Bhatu Mahto was entered into the

Khatiyan and the land was mutated in his favour. Further, through

Mutation Case No. 1/7 (27) 1973-74, the land was mutated in

favour of the petitioners. Jamabandi No. 122/B and Jamabandi

No. 123/B were created in favour of the petitioners pursuant

thereto. The rent receipts were issued in the name of the petitioners

and they continuously paid rent to State. The petitioners have Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

asserted that it is evident from the order sheet of the Mutation Case

No. 1/7 (27) 1973-74 that prior to mutation in favour of the

petitioners, the land of Khata No. 74, Khesra No. 53 stood in the

name of petitioners' father. A copy of the communication dated

03.04.1995 made by the Circle Officer, Rajgir addressed to the

Sub-Divisional Officer, Rajgir is also being relied upon in support

of the petitioners' case that the Circle Officer had found

jamabandi created in the names of these petitioners on the basis of

jamabandi register.

These are the foundational facts which the petitioners

assert, while seeking a declaration from this Court that they have

the title and possession over the land in question.

6. Indisputably, the Revenue and Land Reforms

Department, Government of Bihar came out with a notification

dated 30.12.2013 for acquisition of certain lands under Section 4

of the Land Acquisition Act, 1894 (for short Old Act) for the

purpose of construction of Rajgir-Bypass Road. The land in

question did not figure in the said notification, though the

concerned Khesra No. 53 has been described to be on the

boundaries of the land proposed to be acquired under the Act. The

land was not included apparently because the respondents were of

the view that the same was Government land, which was required Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

to be transferred by way of inter departmental transfer for

construction of the said Rajgir-Bypass Road.

7. It is the case of the State of Bihar on the other hand

that though part of the land appertaining to Khata No. 74, Khesra

No. 53 was acquired in the said project but the disputed land was

excluded from notification, as during the enquiry, the land was

found as Gair-Mazarua Thikedar recorded in cadastral Khatiyan

and the lands of such nature were acquired for the said project by

inter departmental transfer under a well established process.

Neither jamabandi of the said land was running nor the same was

declared Raiyati by a competent authority. Altogether, acquirable 9

plots admeasuring area 9.338 acres recorded as Gair-Mazarua

Thikedar in cadastral Khatiyan were reported to the Requisitioning

Officer to take proper steps for transfer of the land, for the project

vide Letter No. 971 dated 18.09.2019 issued under the signature of

the District Land Acquisition Officer, Nalanda (Respondent No.

4). Thereafter a proposal was prepared on the basis of enquiry

report of the concerned revenue karmachari clearly mentioning

therein that all acquirable 9 plots including plot no. 53 are Gair-

Mazarua Thikedar and as per records, no jamabandi stood in the

name of anyone else and that the same was fit to be transferred for

the said project. On the basis of the aforesaid proposal and Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

subsequent recommendation made by the Sub-Divisional Officer,

the Divisional Commissioner ordered transfer of the said land for

construction of Rajgir-Bypass Road. Controverting petitioners'

claim of title on the basis of Hukumnama issued by the erstwhile

Zamindar it has been asserted that the same is not registered and

names of the landlords do not tally with the names of the landlords

as appearing in the cadastral Khatiyan.

8. In the supplementary counter affidavit filed on behalf

of the State of Bihar in response to the second supplementary

affidavit filed on behalf of the petitioners, it has been reiterated

that as the Hukumnama in favour of Bhatu Mahto is not registered

and is not supported by the jamabandi return, no reliance can be

placed upon the said documents. It has further been asserted that

the report of the concerned Revenue Authority clearly indicates

that no jamabandi with respect to plot no. 53 in the name of any

person had ever been entered in Register II. In respect of the rent

receipts of fasli year 1355, 1360 and 1360, it has been stated that

the same appear to be fabricated. In response to a statement made

in the supplementary affidavit, it has been asserted that the extracts

of Register II do not contain the detail of plots rather only Khata

No. 74 is mentioned in the jamabandi of petitioner no. 2. Further,

the report of Chirkut No. 163 (R) dated 26.03.2019 goes to show Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

that no jamabandi regarding lands in question is available in the

office of Circle Officer, Rajgir.

9. The pleadings of the rival parties on record have been

mentioned hereinabove to notice the nature of dispute in respect of

the title over the land being claimed by the petitioners and

disputed by the respondent State of Bihar.

10. Mr. Mrigank Mauli, learned Senior counsel

appearing on behalf of the petitioners has submitted that the

respondents cannot dispute the rights vested by the Hukumnama as

it amounts to unsettling a settlement made by the ex-zamindar

nearly hundred years ago, in favour of the predecessor in interest

of the petitioners. He contends that the petitioners and his

predecessors in interest have remained in possession of the land

and have been enjoying the usufructs and have been duly paying

their rent to the respondent State for nearly eighty years. In respect

of the entry in the survey showing the nature of the land 'Gair-

Mazarua Thikedar' made nearly eighty years back, he has

submitted that such entry cannot be treated to be static which

changes with time. According to him, presumption of continuity

and correctness of entries in Khatiyan weakens with the passage of

time. Relying on a coordinate Bench decision of this Court dated

28.03.2014 in C.W.J.C. No. 16123 of 2013 (Maya Devi and Ors. Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

v. The State of Bihar and Ors.) he has submitted that validity of

long standing jamabandi cannot be questioned. Relying on the said

decision, he has submitted that when long standing possession of a

person is not disputed, the only forum available to the State for

cancellation of jamabandi is to resort to Civil Court and not in a

summary proceeding by a revenue officer of the State. Reliance

has also been placed on another coordinate Bench decision

rendered in S.A. No. 330 of 1995 (Kedar Prasad and Ors. v. Sita

Ram Yadav and Ors.) in support of his contention that on the basis

of earlier entry in cadastral survey, the correctness of present entry

cannot be refuted. In case of conflict between an earlier and a later

entry, the record of rights of later entry shall prevail, he has

submitted. He has then placed reliance on a Division Bench

decision in case of Khiru Gope and Ors. v. Land Reforms Deputy

Collector, Jamui and Ors. (AIR 1983 PAT 121) to contend that

the authorities cannot go behind the settlement made by the ex-

landlord in favour of the father of the petitioners and that the

revenue authorities do not have the jurisdiction to cancel

jamabandi and remove the name of the tenants from the tenant

register, having the effect of cancelling the settlement made by the

ex-intermediaries. Relying on a Division Bench decision in case of

State of Bihar and Ors. v. Harendra Nath Tiwary, he has Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

submitted that it is now impermissible for the respondents to

cancel jamabandi which was originally created in 1945. Reliance

has also been placed on coordinate Bench decision reported in

2017 (1) PLJR 818 (Vijay Kumar Prasad v. The State of Bihar

and Ors.). He has placed reliance on another decision rendered on

22.06.2015 in C.W.J.C. No. 4325 of 1993 (Dinanath Singh and

Ors. v. The State of Bihar and Ors.) (authored by me) in support

of his contention that jamabandi cannot be cancelled at this stage.

11. Mr. Sajid Salim Khan, learned SC 25 appearing on

behalf of the State of Bihar has taken a preliminary objection over

maintainability of the writ application mainly on the ground that as

it involves the disputed questions of fact in relation to title over

land, this Court exercising power of judicial review under Article

226 of the Constitution of India should not entertain the

petitioners' claim. He has submitted that the genuineness of the

documents on which the petitioners are placing reliance in support

of their claim of title in respect of the land itself is under cloud

and, therefore, the claim of the petitioners' cannot be entertained

on the basis of the statements on affidavits and copies of the

documents annexed with the writ application and other affidavits.

According to him, in order to establish their title, the petitioners

need to establish their case by adducing evidence before a Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

competent Civil Court. He has relied on a Division Bench decision

of this Court rendered on 15.12.2015 in L.P.A. No. 34 of 2015

(State of Bihar and Ors. v. Chandrabanshi Singh and another

analogous case) wherein it has been laid down that proceeding

under Article 226 of the Constitution of India is not an appropriate

proceeding for adjudication of disputes relating to title. He has

further contended that the acquisition proceeding for acquisition of

land for the purpose of construction of road had begun in 2013.

The petitioners' land was apparently not notified for acquisition

under Section 4 of the Old Act, for the apparent reason that the

land was treated to be Government land from the very beginning.

The petitioners did not raise any objection at that stage claiming

acquisition or payment of compensation for acquisition of the land

in question. He has placed reliance on a Supreme Court's decision

in case of A.P. Industrial Infrastructure Corpn. Ltd. v.

Chinthamaneni Narasimha Rao & Ors. dated 15.09.2011

rendered in Civil Appeal Nos. 304-305 of 2005 in support of his

contention.

12. On the basis of the pleadings on record and

submissions advanced on behalf of the petitioners, it is apparent

that their claim is founded on a Hukumnama said to have been

executed by ex-landlord and subsequent mutation in favour of Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

their father Bhatu Mahto in Mutation Case No. 58/7 (27) 1965-66.

Copy of the said Hukumnama has been brought on record by way

of Annexure P/18 to the second supplementary affidavit filed on

behalf of the petitioners in this case. A photo-stat copy of the

certified copy of the order sheet of Mutation Case No. 58/7 (27)

1965-66 has been brought on record by way of Annexure P/2 to

the writ application. In the present writ proceeding under Article

226 of the Constitution of India, this Court did not have the

occasion to duly appreciate and discern the contents of the said

Hukumnama, considering the language used therein. Further, the

respondents have seriously doubted the correctness of the

document in their pleadings.

13. On perusal of the order sheet of Mutation Case No.

58/7 (27) 1965-66, I notice that the first order is of 15.12.1966

which required issuance of notice to the general public for filing

objection by a pre-date i.e. '12.01.1966', which was certainly an

impossibility. I would have treated mentioning a pre-date in the

order sheet to be a clerical error. But even the next date mentioned

in the order sheet i.e. '14.02.1966' on which final order was passed

makes genuineness of the document suspicious.

14. Further, in the said order dated 14.02.1966, it has

been mentioned that the land in question was in the name of father Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

and mother of the applicant for mutation. In the absence of any

objection, the Circle Officer is said to have allowed the application

for mutation. It is peculiar to note that, on the one hand, the

petitioners have stated in the writ petition that the Zamindar had

executed Hukumnama in favour of petitioners' father Bhatu Mahto

and according to them, Zamindar had filed his return and declared

father of said Bhatu Mahto viz. Bulak Mahto as one of the Raiyat

under him and it was Bulak Mahto who was recognized as settled

Raiyat and the rent receipts were issued in his favour and his

successors-in-interest.

15. Be that as it may, the dates mentioned in the order

sheet of Mutation Case No. 58/7 (27) 1965-66, as noted above,

makes the whole document doubtful. The very basis of the

petitioners' claim that the mutation was created under order of the

Circle Officer in the name of petitioners' father has become

suspicious inasmuch as the first order is of 15.12.1956 whereas the

subsequent orders are of 14.02.1966 and 16.02.1966. This is one

aspect of the matter.

16. Further, from the rival pleadings of the parties which

have been noted hereinabove, it can be easily discerned that the

respondent State of Bihar has seriously disputed the petitioners'

claim of title over the land. I have no hesitation, thus, in reaching a Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

definite conclusion that this writ application involves disputed

questions of fact as regards title.

17. Mr. Sajid Salim Khan has rightly placed reliance on

Division Bench decision in case of Chandrabanshi Singh (supra)

wherein it has been clearly laid down in paragraph 27 that a

proceeding under Article 226 of the Constitution of India is not an

appropriate proceeding for adjudication of disputes relating to title.

Whether the petitioner has title and possession over the land in

question is a question of fact, on which, great deal of dispute has

been raised.

18. In case of State of Rajasthan v. Bhawani Singh and

Ors. reported in (1993) Supp. (1) SCC 306 the Supreme Court has

specifically laid down in paragraph 7 as under:-

"7. Having heard the counsel for the parties, we are of the opinion, that the writ petition was misconceived insofar as it asked for, in effect, a declaration of writ petitioner's title to the said plot. It is evident from the facts stated hereinabove that the title of the writ petitioner is very much in dispute. Disputed question relating to title cannot be satisfactorily gone into or adjudicated in a writ petition."

Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

19. In case of M/s Real Estate Agencies v. State of Goa

and Ors. reported in (2012) 12 SCC 170 the Supreme Court has

held in paragraph 16 as under:-

"16. .............. The writ court exercising jurisdiction under Article 226 of the Constitution is fully empowered to interdict the State or its instrumentalities from embarking upon a course of action to the detriment of the rights of the citizens, though, in the exercise of jurisdiction in the domain of public law such a restraint order may not be issued against a private individual. This, of course, is not due to any inherent lack of jurisdiction but on the basis that the public law remedy should not be readily extended to settlement of private disputes between individuals. Even where such an order is sought against a public body the writ court may refuse to interfere, if in the process of determination disputed questions of fact or title would require to be adjudicated."

(Underlined for emphasis)

20. Similar view has been taken in case of D.L.F.

Housing Construction (P) Ltd. v. Delhi Municipal Corporation

and Ors. (AIR 1976 SC 386).

21. In case of Suraj Bhan and Ors. v. Financial

Commissioner and Ors. reported in (2007) 6 SCC 186 the

Supreme Court has categorically laid down in paragraph 9; Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

".............So far as title to the property is concerned, it can only

be decided by a competent Civil Court.........."

22. In case of Municipal Corporation Aurangabad v.

State of Maharashtra reported in (2015) 16 SCC 689, the

Supreme Court has laid down in paragraph 14 as under:-

"14. In the present case, we find that a disputed question of fact was raised by the parties with regard to the title over the land in question. The appellant-Corporation on the one hand based its claim of title on payment of amount by depositing it in the court and possession of the land taken pursuant to the agreement reached between the appellant-

Corporation and the father of the respondent no.2. On the other hand, the case of the second respondent is that the amount was not deposited by the appellant-Corporation with regard to the land in question. In view of the fact that there is a disputed question of fact, we are of the view that it was not a fit case for the High Court to decide the question of mutation doubting the title in a petition under Article 226 of the Constitution and thereby reversing the concurrent finding of fact by the competent authorities."

(Underlined for emphasis) Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

23. For the aforesaid reasons, this writ application as it

seeks declaration of title on the basis of facts which are disputed

deserves to be dismissed on this ground alone.

24. Further, as has been noted above, the petitioners'

claim for this Court to hold title in their favour is based on the

entries in the revenue records, particularly creation of jamabandi

in their favour. It has been consistent view of the Supreme Court

that entries in the revenue records do not confer a title. Such

entries serve only fiscal purpose i.e. payment of land revenue. No

ownership is conferred on the basis of such entries. The title can

only be decided by a competent Civil Court. Illustratively,

reference in this regard may be made to the Supreme Court's

decision in case of Smt. Sawarni v. Smt. Inder Kaur and Ors.

reported in (1996) 6 SCC 223 which had arisen out of a title suit.

Setting aside the decision of the first Appellate Court and that of

the Second Appeal the Supreme Court has observed that the first

Appellate Court was swayed away by the so-called mutation in the

revenue record and has held that mutation of a property in the

revenue record does not create or extinguish title nor has it any

presumptive value on title. It only enables the person in whose

favour the mutation is ordered, to pay the land revenue in question. Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

The Supreme Court reversed the findings of the first Appellate

Court and the High Court in the Second Appeal for having not

examined the oral evidence adduced in that case at the trial. It is

easily culled out from the said decision in case of Smt. Sawarni

(supra) that mutation in the revenue record cannot be conclusive

evidence to determine title of a person nor the mutation can have

presumptive value on title, even in a suit.

25. In case of Suraj Bhan (supra) also the Supreme

Court has clearly laid down that an entry in revenue records does

not confer title on a person whose name appears in record of

rights. The Supreme Court reiterated its view, which was

expressed in case of Suraj Bhan (supra) subsequently in case of

Rajinder Singh v. State of Jammu & Kashmir reported in (2008)

9 SCC 368 to the effect that entries in the revenue records are

relevant only for fiscal purpose and title and ownership of

contesting claimants can be decided by a competent Civil Court in

appropriate proceedings. In case of Municipal Corporation

Aurangabad (supra) the Supreme Court has again reiterated the

legal position that mutation does not confer any right and title in

favour of anyone or other nor cancellation of mutation

extinguishes the right and title of the rightful owner. Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

26. In case of Smt. Bhimabai Mahadeo Kambekar (D)

Th. LR v. Arthur Import and Export Company and Ors. reported

in (2019) 3 SCC 191, the Supreme Court again reiterated its

earlier view that mutation of a land in revenue records does not

create or extinguish the title over such land nor has it any

presumptive value on the title. It merely enables the person in

whose favour mutation is ordered, to pay the land revenue in

question. The aforesaid view has been reiterated in a recent

Supreme Court's decision in case of Jitendra Singh v. State of

Madhya Pradesh (2021 SCC OnLine SC 802), wherein the

Supreme Court taking note of previous decisions has emphasized

that entries in the revenue records or jamabandi have only "fiscal

purpose", i.e., payment of land revenue, and no ownership is

conferred on the basis of such entries. The Court has further laid

down that so far as title of the property is concerned, it can only be

decided by a competent Civil Court.

27. In view of the aforesaid discussions, claim of the

petitioners raised before this Court to declare them owners in

respect of the land in question on the basis of mutation/jamabandi

cannot be sustained.

28. Reliance placed by Mr. Mrigank Mauli on the

decision of this Court in case of Maya Devi (supra) is of no help in Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

view of series of decisions of Supreme Court including the latest

one in case of Jitendra Singh (supra). Further, this case is

distinguishable on facts also as genuineness of the order sheet, a

copy of which has been brought on record by way of Annexure P/2

of the writ petition, albeit prima facie, appears to be doubtful,

considering the mentioning of dates of different orders purported

to have been passed, as mentioned therein. This goes to the root of

the matter as regards petitioners' claim of long standing mutation

and jamabandi. The decision rendered in case of Dinanath Singh

(supra) on which reliance has been placed by Mr. Mrigank Mauli

was entirely in different context. Further, the order which was

under challenge in the said proceeding was passed before

enactment of the Bihar Land Mutation Act, 2011, which now

contains provision for cancellation of a jamabandi wrongly

created.

29. I am not inclined to entertain any challenge to the

proposed action for cancellation of jamabandi in question at this

stage. It goes without saying that the petitioners shall be at liberty

to raise their plea before appropriate forum in accordance with

law, if any action is taken or has been initiated.

30. The decisions rendered by this Court dated

23.03.2010 in S.A. No. 330 of 1995 (Most. Kusum Bala Devi and Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

Ors. V. Sita Ram Yadav and Ors), 06.02.2014 rendered in S.A.

No. 392 of 2009 in case of Byasdeo Mandal and Ors. v. Smt.

Longi Devi and 16.11.1951 in A.F.A.D. No. 1342 of 1948 (Shaikh

Banka v. Shaikh Bartul and Ors.) reliance on which has been

placed by Mr. Mrigank Mauli, have no application in the present

proceeding under Article 226 of the Constitution of India as all

those proceedings arose out of suits presented before a Civil Court

of competent jurisdiction. This writ petition involves disputed

questions of facts as regards the petitioners' claim of title over the

land in question which primarily rests on Hukumnama, mutation

and jamabandi. Further, this case is distinguishable from the cases,

on which, the petitioners are placing reliance for the reason that

they themselves assert that the land is in possession of the State of

Bihar and that the State respondents have taken possession without

duly acquiring the petitioners' land. The question of jamabandi for

the purpose of title as on date has lost its significance. The

question, as to whether the petitioners derived title on the basis of

Hukumnama executed by the ex-zamindar in favour of their father

is a question of fact which can be decided by a Civil Court in a

duly framed suit. Mutation or jamabandi cannot confer title even if

their case of existence of such mutation/jamabandi is accepted for

the sake of argument.

Patna High Court CWJC No.6222 of 2017 dt. 27-10-2021

31. For the reasons aforesaid, I do not find any merit in

this application, which is accordingly dismissed.

32. It goes without saying the parties shall be at liberty

to seek declaration of title before a competent Court of civil

jurisdiction. On the point of cancellation of jamabandi, if any

proceeding is initiated, the petitioners shall be at liberty to raise all

such plea which, are available to them in accordance with law at

appropriate stage.

33. There shall be no order as to costs.

(Chakradhari Sharan Singh, J) AKASH/-

AFR/NAFR               NAFR
CAV DATE               09.09.2021
Uploading Date         27.10.2021
Transmission Date      N/A