Sushil Kr.Mishra And Ors vs The Stat Of Bihar
2023 Latest Caselaw 2580 Patna

        IN THE HIGH COURT OF JUDICATURE AT PATNA
                         SECOND APPEAL No.368 of 1989

1. Baidyanath Mishra (Deceased)
1.1. Sushil Kumar Mishra @ Sushil Mishra s/o deceased Baidyanat Mishra
1.2. Prabhash Kumar Mishra @ Prabhash Mishra s/o deceased Baidyanat Mishra
1.3. Punam Kumari d/o deceased Baidyanat Mishra
1.4. Premwala Devi w/o deceased Baidyanat Mishra
1.5. Suchita Kumari d/o deceased Baidyanat Mishra
2. Mahendra Mishra s/o Jainarain Mishra
3. Rajendra Mishra s/o Jainarain Mishra
4. Govind Mishra s/o Jainarain Mishra
5. Markandey Mishra (Expunge) s/o Jainarain Mishra
6. Uma Kant Mishra s/o Markandey Mishra
7. Nageshwar @ Nagendra Mishra s/o Markandey Mishra
8. Suresh @ Surendra Mishra s/o Markandey Mishra
9. Sitaram Mishra (Expunge) s/o Janardan Mishra
10. Hirakant Mishra s/o Sitaram Mishra
11. Mithilesh Mishra s/o Sitaram Mishra
12. Shyam Sunder Mishra (Deceased) s/o Janardan Mishra
12.1 Phool Devi w/o deceased Shyam Sunder Mishra r/o Village Chandail P.S.
    Supaul at present r/o Village Bakour, P.S. Supaul Pargana ,Malharigopal
    Distt. Saharsa.
13. Mohan Mishra s/o Shyam Sunder Mishra
14. Shambhunath Mishra s/o Shyam Sunder Mishra
15. Narain @ Jitendra Mishra s/o Shyam Sunder Mishra
16. Lal Mishra s/o Shyam Sunder Mishra
17. Shib Shankar Mishra (expung) s/o Madhusudan Mishra
18. Kameshwar Mishra s/o Shivshankar Mishra
19. Nilamber Mishra s/o Shiv Shankar Mishra
20. Digambar Mishra s/o Shiv Shankar Mishra
21. Biswanath Mishra s/o Madhusudan Mishra
22. Pitamber Mishra s/o Biswanath Mishra
                                                               ... ... Appellants

                                      Versus

 1. The State of Bihar
 2. The Collector, Saharsa
 Patna High Court SA No.368 of 1989 dt.20-06-2023
                                            2/22




    3. The D.R.D.O. Dupaul, P.S. Supaul, District- Saharsa
    4. The Anchal Adhikari Supaul, Supaul Block, P.S. Supaul, District-Saharsa
                                                               ... ... Respondents
      ======================================================

Appearance :

       For the Appellants        :        Mr. Shashi Shekar Dwivedi, Sr. Advocate
                                 :        Mr. Parth Gaurav, Advocate
                                 :        Mr. Ashutosh Kr. Pandey, Advocate
                                 :        Ms. Ritu Raj Shukla, Advocate
       For the Respondents       :        Mr. Khurshid Alam, AAG-12
                                 :        Mr. Shailendra Kumar Dwivedi, AC to AAG-12

====================================================== CORAM: HONOURABLE MR. JUSTICE KHATIM REZA CAV JUDGMENT Date : 20-06-2023

This Second Appeal has been filed by the plaintiffs

against the judgment and decree dated 31.05.1989 passed by

Second Additional District Judge, Saharasa in Title Appeal no.

01 of 1977 dismissing the appeal and confirming the judgment

and decree dated 29.11.1976 passed by Subordinate Judge,

Saharsa in Title Suit no. 34 of 1973.

2. On 21.11.1989, following substantial questions of

law were formulated while admitting this Appeal:-

(I) Whether the findings of the court below

that the entire area of Plot Nos. 1281, 1282 and

1158 has vested in the State of Bihar by virtue of

the proceeding under Section 4(h) of the Bihar

Land Reforms Act is sustainable even if the entire

order passed in the proceeding under Section 4(h)

of the B.L.R. Act is accepted to be correct?

Patna High Court SA No.368 of 1989 dt.20-06-2023

(II) Whether the courts below has

misdirected itself in holding that even though the

plaitinffs were not a party to the proceeding u/s

4(h) of the B.L.R. Act the same is still binding upon

them?

(III) Whether the findings of the court below

is based on the errors of record and non-

consideration of the material evidence both oral and

documentary?

(IV) Whether the finding of the court below

that the entire land of Plot Nos. 1281, 1282 and

1158 has vested in the State of Bihar is sustainable

and admittedly the major portion of the aforesaid

plots are horticulture or cultivable land being in

possession of the landlord ever since vested and has

remained in possession all through of the plaintiffs

since 1958?

(V) Whether the courts below should have

drawn adverse inference for non-production of

material documents which was in exclusive

possession of the defendants and had a direct Patna High Court SA No.368 of 1989 dt.20-06-2023

bearing in the case and on that count the finding of

the courts below is erroneous, perverse and illegal?

3. The plaintiff/appellants filed the aforesaid suit

praying for declaration of title and possession of the plaintiffs

over the suit land measuring 6 Bigha 7 Katha 19 Dhur, and

further prayed for confirmation of possession and declaration

that they are the occupancy Raiyats of these lands and the State

of Bihar be directed to fix fare rent for the same, and further the

State of Bihar is sought to be restrained permanently from the

disturbing the possession of the plaintiffs.

4. Plaintiffs' case is that they are the original resident

of village Chandail, P.S. Supaul, District Saharasa, but they

shifted to village Bakaur where the suit lands are situated. It is

further claimed that there was a Kosi river devastation at village

Chandail in July-August 1954, and on account of Kosi

devastation, the ancestral land and residential house of the

plaintiffs at village Chandail had washed away, damaged and

submerged under the flood water, as a result of which, the

plaintiffs shifted to village Bakaur in September, 1954, which

was east to the original place of residence. They have

rehabilitated themselves temporarily by constructing thatched

house and sheds on Plot Nos. 1281 and 1282 appertaining to Patna High Court SA No.368 of 1989 dt.20-06-2023

Khata no. 149. They set up their orchard, cattle-shed in those

plots and also on Plot no. 1158 of the same Khata.

Subsequently, the plaintiffs constructed their pucca building

with tiled roofs in place of thatched house and sheds.

5. In the beginning paragraphs of the plaint, the

plaintiffs claimed to have settled Gairmajarua Malik lands

without any permission from anybody. In the subsequent

paragraphs, it is stated that those lands along with Bakasht lands

bearing Plot Nos. 1152, 1153, 1154, 1155, 1156, 1157 and 1159

of Khata no. 1 were settled with one Sri Harbansh Narain Singh

orally as early as 14.09.1944 as Raiyat by Sri Chetmani Singh,

ex-landlord. It is said that the landlord submitted his Return

under Jamabandi no. 249 with regard to the said plots in the

name of Sri Harbansh Narain Singh. It is claimed by the

plaintiffs that the plaintiffs began to cultivate the Bakasht Land

and also portion of Gairmajarua land bearing Plot Nos. 1281,

1282 and 1158, and they were in possession over the total area

of 6 Bigha 7 Katha and 10 Dhur by constructing residential

house and by cultivating the remaining land since September

1954 to December 1954. The plaintiffs took settlement of all

these plots except the portion of Plot Nos. 1281 and 1282

measuring 1 Bigha and 10 Dhur on which Hat was being held Patna High Court SA No.368 of 1989 dt.20-06-2023

from the said Harbansh Narain Singh. Thus, they claimed to be

the settlees of 5 Bigha and one Dhur land in Gairmajarua Khata

no. 159 and 1 Bigha 9 Katha and 7 and ½ Dhur in Bakasht

Khata no. 1 in spite of fact that the plaintiffs got settlement from

Harbansh Narain Singh. It is stated that subsequently plaintiff

no. 1 to 18 purchased 4 Bigha 18 Katha 2 and ½ Dhur by virtue

of sale deeds dated 31.07.1958 and one sale deed dated

20.12.1965 on payment of consideration money to avoid any

future litigation and to secure their possession as Raiyats.

Plaintiffs no. 19 to 24 also purchased 1 Bigha 9 Katha 7½ Dhur

by virtue of sale deed dated 31.07.1958 for valuable

consideration. In this way, the plaintiffs at first claim their right

on the basis of occupancy Raiyat then by settlement through

Harbansh Narain Singh (who himself is said to be a settlee from

the ex-land lord Sri Chetmani Singh) and also subsequently has

purchased through the above mentioned four sale deeds.

6. Further case of the plaintiffs is that the State of

Bihar has been settling the portion of Plot no. 1281 and 1282

which covers the Hat, but the rest portion of these plots and Plot

no. 1158 remained in peaceful possession of the plaintiffs, who

had constructed their house and were enjoying the usufruct of

the old mango orchard and were cultivating the culturable lands. Patna High Court SA No.368 of 1989 dt.20-06-2023

The Cause of action to the plaintiffs arose when they applied for

fixing fare rent in the year 1968, but the revenue authorities

refused to fix the fair rent on the ground that the alleged

settlement by the ex-landlord, namely, Chetmani Singh to Sri

Harbansh Narain Singh was annulled under Section 4(h) of the

Bihar Land Reforms Act, 1950. The annulment order was

confirmed by the State Government. It is submitted that the

order was wrong as the plaintiffs were in possession over the

lands as Raiyats and also because they were not made parties to

that proceeding. Further circumstances giving rise to the cause

of action is the settlement of usufructs of the disputed land by

the State of Bihar with one Sri Shilakant Jha in spite of the

protest made by the plaintiffs. The plaintiffs filed revision

against the order of authorities refusing their prayer for fixing

for rent but this was rejected on the same ground that the

settlement made by ex-landlord in favour of Sri Harbansh

Narain Singh has been annulled. Against the said order, the

plaintiffs moved the Hon'ble High Court, but it was withdrawn

on 19.02.1973 and then they have instituted the suit for the

aforementioned reliefs after serving notice under Section 80 of

the Civil Procedure Code.

Patna High Court SA No.368 of 1989 dt.20-06-2023

7. On the other hand, the defendants, State of Bihar

contested the suit by filing written statement. The defendants

have not challenged the claim of the plaintiffs with regard to

plots appertaining to the Bakasht Khata no. 1 as it had not

vested in the State of Bihar and the ex-landlord was at liberty to

transfer it to anybody. The dispute is only regarding the

settlement of Plot Nos. 1281, 1282 and 1158 which appertains to

Gairmajarua Khata no. 159. The defendant further denied the

claim of the plaintiffs with regard to oral settlement on

14.09.1944 by ex-landlord Chetmani Singh to Harbansh Narain

Singh. It has been further pleaded that the said Harbansh Narain

Singh, the father-in-law of Sri Chetmani Singh, later made some

Farzi and Benami settlement in the name of his father-in-law

after the estate vested in State of Bihar on 26.01.1955 to defeat

the provisions of Bihar Land Reforms Act. It is also submitted

that it did not only affect the real interest of the State but it

affected also the general public as the lands were covered also

by grave-yard and Mahadev Asthan. The State of Bihar under

the provisions of Section 4(h) of the Bihar Land Reforms Act

initiated a proceeding against Sri Chetmani Singh (settler ex-

landlord) and Sri Harbansh Narain Singh (Settlee) for annulment

of Farzi settlement in respect of Plot Nos. 1281, 1282, 1158, 850 Patna High Court SA No.368 of 1989 dt.20-06-2023

which was after notice annulled by the Additional Collector and

confirmed by the State Government only to aforesaid settlement

in favour of Harbansh Narain Singh. About the claim of

possession over the Gairmajarua disputed lands, it is said that

the plaintiffs made some illegal encroachment over some portion

of these lands in the year 1958, and defendants were taking legal

steps for removing the encroachment when the plaintiffs filed a

writ case and subsequently the present suit. Further case of the

defendants is that during pendency of the proceeding under

Section 4(h) of the Bihar Land Reforms Act, the said Harbansh

Narain Singh executed sale deeds in favour of plaintiffs. The

said Harbansh Narain Singh executed sale deeds after annulment

order under Section 4(h) of the Bihar Land Reforms Act. The

claim of the plaintiffs with regard to peaceful possession of the

plaintiffs of the aforesaid land has been denied by the defendants

and it is said that encroachment over those portion of the

Gairmajarua lands were seriously objected by the State of Bihar

and a proceeding under Section 107 and 144 of the Criminal

Procedure Code were started. The enquiry under the provisions

of the Bihar Lands Reform Act was initiated in the year 1958

and finally decided in the year 1967. The Anchal Adhikari took Patna High Court SA No.368 of 1989 dt.20-06-2023

possession in the year 1969 and settled the mango fruits for the

year 1970-71.

8. Learned appellate court after scrutinizing the

pleadings and evidence as well as judgment of the trial court

found that proceeding for annulment of the alleged settlement

under Section 4(h) of the Bihar Land reforms Act was already

started and after the notice to the ex-landlord, as well as settlee,

the settlement of Plot Nos. 1281, 1282, 1283 and 850 of Khata

no. 159 has already been annulled. The order of annulment has

been marked as Exhibit-G. It will appear from the order

(Exhibit-G) that due enquiry was made and it was found that the

alleged settlement dated 04.09.1944 was found malafide and

Benami and Jamabani no. 249 in favour of Harbansh Narayan

Singh, who was the father-in-law of the ex-landlord, namely,

Chintamani Singh, was created fraudulently after 26.01.1955,

only with a view to defeat the provisions of Bihar Land Reforms

Act. So far notice to the appellants is concerned, the said

annulment proceeding was initiated by the State Government

against ex-landlord and settlee Harbansh Narayan Singh and the

said settlement was not in respect of the appellants. The question

of being noticed to the appellants does not arise. The order of

annulment by Additional Collector was confirmed by the State Patna High Court SA No.368 of 1989 dt.20-06-2023

Government vide letter no. 8698 dated 18.11.1967. It is further

held that the said settlement by ex-landlord in favour of his

father-in-law in respect of Gairmajarua land is fraudulent and

Benami with view to defeat the provision of Bihar Land

Reforms Act. The order of annulment after being confirmed by

the State Government became final and the said settlement in

respect of the said land becomes illegal and, as such, the

appellants are bound by the said order. Learned appellate court

further held that admittedly there are Hat, Kabristan and

Mahabir Sthan situated over the said lands and Hat is also being

settled by the Government every year, since 1969. The

settlement of 1944, as claimed by the plaintiffs becomes

falsified. The plaintiffs have failed to prove about the alleged

settlement made by the ex-landlord with Harbansh Narayan

Singh is valid, legal and genuine and the plaintiffs have never

been in cultivating possession over the suit land being

Gairmajarua lands in the manner as well and held that plaintiffs

have got no right, title and possession over the suit land of

Khata no. 159.

9. Learned senior counsel, Mr. Shashi Shekhar

Dwivedi, appearing on behalf of the appellants submitted that

the settlement was made with respect to 7 plots of Khata no. 1 Patna High Court SA No.368 of 1989 dt.20-06-2023

Bakasht land of Chetmani Singh and 4 plots of Khata no. 159

which was in Khas possession of the ex-landlord and was

recorded as Gairmajarua Khas containing orchards in two of the

plots and two plots were parti (out of four plots of Khata no.

159). The order as contained in Exhibit-G shows that the

Additional Collector has annulled only the settlement with

respect to Khata no. 159 and has impliedly held that the

settlement of Khata no. 1 of lands made on 14.09.1944 were

legal and had no infirmity. The settlement of lands of two Khata

made simultaneously by one proceeding by same land lord could

not have been bifurcated by the Additional Collector, and held

that half of the settlement was perfectly legal and valid, which

was settled on 14.09.1944 and the other half was invalid having

been made on 26.01.1955. The trial court as well as the appellate

court have dismissed the suit and appeal respectively and have

held that the settlement with respect to Khata no. 159 has been

annulled by the Additional Collector, therefor, it was vested with

the State of Bihar.

10. Learned senior counsel for the appellants submits

that substantial questions of law are with regard to annulment of

a settlement under Section 4(h) of Bihar Land Reforms Act, the

properties vested in the State of Bihar and whether vesting is in Patna High Court SA No.368 of 1989 dt.20-06-2023

accordance with provisions of Bihar Land Reforms Act. He also

questioned that the proceeding under Section 4(h) of the Bihar

Land Reforms Act can be initiated at any time at the will of the

authorities and what is ultimate period till when proceeding

under Section 4(h) of the Bihar Land Reforms Act can be

initiated.

11. Learned senior counsel submitted that Bihar Land

Reform Act, 1950 talks only about the vesting of the interest of

the ex-landlord namely the tenure holder or the intermediary and

no part of it relates to vesting of any land of Raiyat. Section 3 of

the B.L.R. Act provides for issuance of a notification declaring

that the estate of tenure of a proprietor of tenure holder,

specified in notification to have passed to and become vested in

the State. Section 3A talks about the power of the State

Government to declare that the intermediary interest of all

intermediaries in whole of the estate have passed to and become

vested in the State. Section 3B(3) of the Act provides that on the

publication of the proclamation of the State every intermediary

shall at any time before the expiration of the said period, make

to the Collector an application (Return) in the form set out in the

schedule to this Act, which shall be verified and signed as

provided under Section 4 along with the required documents. Patna High Court SA No.368 of 1989 dt.20-06-2023

Learned senior counsel further submits that Section 3(B)(6) is

very important which provides that when such application

(Return) has been made in accordance with the provision of

Section, the Collector shall transfer it with all the materials and

documents and accompany it to the Compensation Officer for

determination of the compensation payable to be the

intermediary or the tenure holder. If Collector is not satisfied to

any settlement/transfer made after 01.01.1946, he can initiate a

proceeding under Section 4(h) of the B.L.R. Act. It is submitted

that if an enquiry in respect of such tenure under Clause (h) of

Section 4 is pending, Compensation Officer shall not prepare

any compensation assessment roll for only the expiry of three

months from the date of receipt of such report or only the receipt

of such enquiry from the Collector, which is earlier, and if the

said period unless the tenure has been annulled under Section (h)

of the Act, the Compensation Officer shall proceed to prepare

compensation assessment roll in respect of the land. It is also

contended that on receipt of Returns from the landlord, the

Collector shall examine the Return and initiate a proceeding

under Section 4(h) of the Act with respect to any doubtful

settlement or transfer made after first date of January, 1946. The

said provision provides obligation of the Compensation Officer Patna High Court SA No.368 of 1989 dt.20-06-2023

not to prepare any compensation assessment roll until the expiry

of three months from the date of receipt of such reports. Learned

senior counsel further submits that if a proceeding under Section

4(h) of the Act has been initiated on receipt of the Return, and

before sending record to the compensation assessment officer, a

maximum period of three months has been provided for

determination of the said proceeding under Section 4(h) of the

Act and not thereafter. It is submitted that the proceeding under

Section 4(h) for determination of compensation shall be

completed prior to determination of the compensation is being

paid to the ex-landlord. Section 27 of the Act provides for an

appeal against the preliminary compensation assessment roll on

a conclusion of final publication of the compensation assessment

roll is made under Section 28 of the Act when all such

applications and appeal have been disposed of. It is submitted

that when a compensation assessment roll has been finally

published under Section 28 of the Act, the Compensation Officer

shall make a certificate stating the fact of such final publication

and the date thereof and shall date and subscribe with his name

and officer designation. Such certificate is conclusive proof of

final publication. Learned senior counsel further submits that the

aforesaid provisions clearly states that once a compensation for Patna High Court SA No.368 of 1989 dt.20-06-2023

the tenure is determined, there is no jurisdiction left in the

Collector for initiating Section 4(h) proceeding. It is further

submitted that the State Government has not provided the dates

of such final publication under Section 28 of the B.L.R. Act nor

has produced the said finally published compensation

assessment roll. For the aforesaid reason, the purported Section

4(h) for proceeding vide Case no. 10 of 1958-59 Exhibit-G is

much beyond final publication under Section 28 of the Act, and

hence it is absolutely without jurisdiction and unwarranted. The

Learned senior counsel further submitted that the entire

judgment of the trial court as well as the appellate court is based

upon Exhibit-G, which is order passed under Section 4(h) of the

B.L.R. Act and annulled the settlement in favour of a vendor of

the appellants, namely, Harbansh Narayan Singh who is claimed

to be settlee of the ex-landlord Chetmani Singh.

12. Learned senior counsel for the appellants

vehemently submitted that disputed Khata no. 159, Plot no.

1158 measuring an area of 14 Katha 13 Dhur is an orchard

containing 16 mango trees and land in possession of Malik i.e.

Chetmani Singh is recorded. Similarly, Plot no. 1281 having an

area of 16 Bigha 17 Katha 5 Dhur which is also a mango

orchard containing 100 mango trees and the possession of Malik Patna High Court SA No.368 of 1989 dt.20-06-2023

is recorded in the survey record of right Exhibit- 16A, and as

such, the character of the disputed land of these two plots 1158

and 1281 being horticulture did not vest in the State of Bihar.

Learned courts below have wrongly held that these plots being

Gairmajarua Khas land vested in the State without considering

the legal aspect of the case that horticulture land and agricultural

land which is in possession of the ex-landlord did not vest in the

State. It is submitted that the ex-landlord was holding Hat over a

portion of Plot Nos. 1282 and 1281 and for which the ex-

landlord had submitted Return and rest of portion of 1281 and

1282 was settled to Harbansh Narayan Singh. It is also admitted

case of the defendants that Hat is on the western portion of Plot

no. 1282 (Partikadim) and 1281(Mango orchard). Further the

order of Additional Collector Exhibit-G shows that the Hat

occupies an area of 1 Bigha 2 Katha 5 Dhur in Plot no. 1281 and

7 Katha 15 Dhur in Plot no. 1282 which clearly proved that the

suit land of the entire plots is not used in the Hat. Learned courts

below have wrongly held that the disputed land of Plot Nos.

1281, 1282 and 1158 vested in the State without considering the

legal aspect that even if the said plot is deemed not to be settled

with Harbansh Narayan Singh, these plots did not vest in the

State. It is further submitted that it has been admitted by the Patna High Court SA No.368 of 1989 dt.20-06-2023

defendant-State that Return of the aforesaid lands has been filed

by the landlord but the defendant has not produced the Return

which could have shown to what extent Plot Nos. 1281, 1282

had been used as Hat, Kabristan and Mahadev Sthan. It is also

submitted that non-production of the Return clearly proved that

portion of Plot Nos. 1281, 1282 and 1158 settled with Harbansh

Narayan Singh did not contain the Hat and only the portion

which is left out of the settlement in Plot Nos. 1281 and 1282

contained the Hat and the land being cultivated as Horticulture

has also been found by the learned Additional Collector during

his enquiry in 4(h) proceeding.

13. Now, coming to the merits of the case and the

provisions of Bihar Land Reforms Act, 1950, attended in the

matter. It manifests that Exhibit 16A (Khatiyan) categorically

shows the character of the lands of Plot Nos. 1158 and 1281

being horticulture and 844 (Parti Kadim an area 5 Bigha, 15

Katha, 19 Dhur) and 1282 (Parti Kadim an area 13 Katha, 10

Dhur) and that a portion of Plot Nos. 1281 & 1282 were used as

Hat and rest of Plot no. 1281 and 1282 were not being used as

Hat as is evident from the report of the Anchal Adhikari, which

is mentioned in the order of Additional Collector passed under

Section 4(h) of the Bihar Land Reforms Act (Exhibit-G). Patna High Court SA No.368 of 1989 dt.20-06-2023

However, it is evident that only a portion of Plot Nos. 1281 &

1282 was used as Hat. The Hat occupied an area of 1 Bigha, 2

Katha, 5 Dhur in Plot no. 1281 and 7 Katha 15 Dhur in Plot no.

1282. The total area admeasuring 6 Bigha 17 Katha 5 Dhur

(nature of land bagh standing over 100 mango trees) is in Plot

no. 1281 and a total area admeasuring 13 Katha 10 Dhur (nature

of land parti kadim) is in plot no. 1282. These lands were settled

to the vendors of the plaintiffs before 01.01.1946, i.e., on

17.09.1944, orally as these lands were Gairmajarua Malik. The

authority was required to give findings that the original settlor

could not have settled these lands as it would defeat the purpose

of Bihar Land Reforms Act. The authority has failed to come to

such conclusion and therefore as Plot no. 1158 (area 14 Katha

13 Dhur) is horticulture, the same cannot vest in the State and

that barring of a portion of land used as Hat on Plot Nos. 1281

& 1282, the rest being Gairmajarua Malik and the ex-landlord

were within his right to settle these lands to the settlee

(Harivansh Narain Singh) before 01.01.1946 i.e., on 17.09.1944,

who later on in the year 1958 and 1968 transferred to the

plaintiffs. It is, therefore, apparent that the transfer is legal and

valid and order passed by the authority under Section 4(h) of the

Bihar Land Reforms Act is unsustainable in law with regard to Patna High Court SA No.368 of 1989 dt.20-06-2023

portion of Plot No. 1281 and Plot no. 1158, which were used as

orchard in possession of Malik and settled in favour of vendor of

the plaintiffs-appellants. It is, therefore, clear that the portion on

which Hat is running in Plot Nos. 1281 & 1282 bearing area of 1

Bigha 2 Katha 5 Dhur and 7 Katha 15 Dhur respectively shall

remain valid in the order passed under Section 4(h) of the Bihar

Land Reforms Act. So far Kabristan and Mahadeo Asthan are

concerned whose details are mentioned in Bhujarat entries

recorded by the Additional Collector in its order dated

06.10.1959 (Ext. G), as per Ext. G, the kabristan occupies an

area of 6 Katha 15 dhur, Khata no. 159, Plot no. 1281 and

Mahadeo Asthan having an area of 10 Katha, Khata no. 159,

Plot no. 1281 and on local inspection by the Additional

Collector held on 24.09.1959, he has found the existence of

Kabristan in the north-eastern corner of Plot no. 1281. There is

no case of the appellants that ex-landlord or settlee have filed

any appeal or revision against enquiry concluded in clause (g) or

(h) of Section 4 of the BLR Act. Therefore, the area being used

as Qabristan and Mahadeo Asthan could not be claimed by

settlement. Hence, appellants are not entitled to aforesaid area of

Qabristan and Mahadeo Asthan. The area of land appertaining

to Khata no. 159, Plot no. 1158 area 14 Katha 13 Dhur the same Patna High Court SA No.368 of 1989 dt.20-06-2023

being horticulture (bagh in possession of Malik) shall not vest in

the State and the plaintiffs-appellants are entitled for right, title

and possession of the same.

14. On perusing the orders and findings of the learned

lower Courts it is apparent that the Courts have erred in holding

that the plaintiffs/appellants were not entitled to right, title and

interest of the schedule properties as they have leaned to accept

the order passed under Section 4(h) of the Bihar Land Reforms

Act, 1950 by the learned Additional Collector without analyzing

the order of Section 4(h), passed under the Act. The order under

Section 4(h) is cryptic and has not considered under Sections 3,

4 and 6 in the light of the provision of Bihar Land Reforms Act

and the learned Courts have failed to go through the provisions

and purport of Bihar Land Reforms Act. This Court on analyzing

the provisions of the Bihar Land Reforems Act find faults with

the order passed under Section 4(h) of the Act by the Additional

Collector as well as the findings of the Courts below in the light

of the observation and findings referred above.

15. As a result, the appeal is partly allowed excluding

the portion of Plot no. 1281 of Khata no. 159, admeasuring area

of 1 Bigha 2 Katha 5 Dhur and Plot no. 1282, admeasruing area

of 7 Katha 15 Dhur of Khata no. 159 (used as 'Hat') and an area Patna High Court SA No.368 of 1989 dt.20-06-2023

of 6 Katha 15 Dhur (used as Qabristan) and an area of 10 Katha

(used as Mahadeo Asthan) appertaining to Khata no. 159, Plot

no. 1281, as these portions of the aforesaid lands cannot be

settled and to that extent the appellants are not entitled to the

possessions as Raiyat. The appellants are entitled to the rest of

the lands of Plot nos. 1281, 1282 and khata no. 159 and also

area of Plot no. 1158 to the extent of which the plaintiffs-

appellants have sought reliefs.

16. In the facts and circumstances of the case, the

substantial question of law formulated is, therefore, substantially

answered in favour of the appellants. Thus, this Second Appeal

has got merit and, accordingly, it is being partly allowed and,

therefore, suit is partly decreed to the extent as observed above.

(Khatim Reza, J)

Premchand, Shanu/-

AFR/NAFR                AFR
CAV DATE                08.02.2023
Uploading Date          23.06.2023
Transmission Date       N/A