Rajendra Prasad Singh vs The State Of Bihar
2023 Latest Caselaw 4077 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.9256 of 2020
     ======================================================

1. Rajendra Prasad Singh Son of Hriday Narayan Singh Resident of Village-

Bhramarpur, P.S.- Bihpur, District- Bhagalpur.

2. Bageshwar Prasad Singh Son of Mod Narayan Singh Resident of Mohalla-

Gurunanakpura Colony, P.S.- Sabour, District- Bhagalpur.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Department of Animal Husbandry and Fisheries, Govt. of Bihar, Patna.

2. The Principal Secretary, Department of Animal Husbandry and Fisheries, Govt. of Bihar, Patna.

3. The District Magistrate-Cum- Collector, Bhagalpur.

4. The District Fisheries Officer-Cum- Chief Executive Officer, Bhagalpur.

5. The Circle Officer, Narayanpur, District- Bhagalpur.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Pramod Kumar, Adv. For the Respondent/s : Mr. Sajid Salim Khan, (SC) For the Intervenor : Mrs. M. Chatterjee, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN ORAL JUDGMENT Date : 28-08-2023

Heard learned counsel for the petitioner and

learned counsel for the State.

2. The present writ application has been filed

directing the respondent authorities, particularly, the respondent

District Fisheries Officer, Bhagalpur and respondent Circle

Officer, Narayanpur, District- Bhagalpur to execute the land of

petitioners appertaining to Mauza- Nagarpara ½, Khata No. 54,

Khesra No. 1257 which has been illegally included in the list of

Public Sairat, although the same is private Sairat of the

petitioners for which the judgment and decree has been passed Patna High Court CWJC No.9256 of 2020 dt.28-08-2023

by the Competent Court i.e. Title Suit No. 45 of 2004.

3. The further prayer has been made directing the

respondent to restrain the petitioners from acting upon and

taking any action in pursuance of letter no. 875 dated

30.07.2019 issued by the respondent Circle Officer, Narayanpur

addressed to the respondent District Fisheries Officer,

Bhagalpur and for any other remedy for relief(s).

4. Learned counsel for the respondent no. 6 and

State raised preliminary objection in this case and submits that

the petitioners have moved with the same relief(s) before this

Hon'ble Court twice. Firstly, in C.W.J.C. No. 14062 of 2014

which was disposed of vide order dated 05.09.2014 in which

there was a clear cut finding of this Hon'ble Court that:

"This Court cannot examine the issue with regard to right and title over the land, it can only be decided by the Civil Court.

The counsel for the petitioner submits that the petitioner has filed a representation dated 19th February, 2014 before the District Magistrate, Bhagalpur but the same is still pending.

Let the District Magistrate, Bhagalpur examine the case, obtain necessary report from a reasonable higher officer and take a final decision on merit within a period of six Patna High Court CWJC No.9256 of 2020 dt.28-08-2023

months from the date of receipt/ production of a copy of this order. The petitioner, if so advised, may file a separate representation annexing the relevant records in support of his case.

Accordingly, this writ petition is disposed of."

5. Subsequently, the petitioners have moved again

in another C.W.J.C. No. 13863 of 2017 which was disposed of

vide order dated 29.06.2018 in which this Hon'ble Court has

pleased to hold that:

"I am of the view that this Court cannot decide that the water shade standing on Khesra No. 538A, Khata No. 247, Area 296 decimal of Jamabandi No. 374, Tauzi No. 384 is raiyati land of the petitioners and there was no Sairat. The appropriate remedy is before the Civil Court which can decide the nature of land of the petitioners. Accordingly, I dispose of this writ petition with liberty to the petitioners to file a suit before the Civil Court for the relief(s) sought for in this writ petition.

This writ petition is accordingly disposed of.

It goes without saying that this Court has not expressed any opinion on the merit of the case."

Patna High Court CWJC No.9256 of 2020 dt.28-08-2023

6. In response of the submissions made, counsel for

the petitioners submits that he has annexed Annexure- 7 in his

reply, which is circular of the Government of Bihar dated

11.11.2014, according to Clause- 3 (chha), the petitioners

entitled their claim and submits that their claim has absolutely

covered under the said provision.

7. Upon going through the submissions made by

the parties, this Court is of the view that the plea of the present

case has been duly barred due to the provisions of constructive

res judicata as mentioned in Explanation IV., Section 11 of the

C.P.C. which states as follows:

"Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."

and further barred by Explanation VIII., Section 11 of the C.P.C.

and in this view of the matter that the petitioners have not opted

to prefer L.P.A. even after categorical decision of this Court to

avail remedy before the Civil Court, this Court has no option but

to dismiss this writ application stating that the petitioners have

remedies to avail their right by way of filing civil suits but they

have opted to move thrice before the writ Court. They shall be at

liberty to take legal recourse available to them.

Patna High Court CWJC No.9256 of 2020 dt.28-08-2023

8. With this observation, the present writ

application stands dismissed.

(Dr. Anshuman, J.) sadique/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          29.08.2023
Transmission Date       NA