Patna High Court
Janardan Rai @ Janardan Raut And Ors vs The State Of Bihar And Ors on 8 January, 2024
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4254 of 2019
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1. Janardan Rai @ Janardan Raut, son of late Bhola Rai.
2. Srimati Bhikhain Devi, wife of Shiv Mangal Yadav.
3. Agindar Rai, son of late Jokhan Rai.
4. Kalawati Devi, wife of Rajendra Rai.
5. Nagina Prasad Yadav, Son of Late Jokhan Rai.
6. Srimati Jhalpati Devi, Wife of Late Yogindar Rai.
All are resident of Village-Khutiyarwa, Police Station-Sugauli,
District- East Champaran at Motihari.
... ... Petitioners
Versus
1. The State of Bihar.
2. The Collector-cum-District Magistrate, East Champaran at Motihari.
3. The District Fishery Officer-cum- the Chief Executive Officer, District East
Champaran at Motihari.
4. The Sub Divisional Officer, Sadar Motihari, District East Champaran at
Motihari.
5. The Circle Officer, Circle- Sugauli, District- East Champaran at Motihari.
6. Harilal Yadav, son of Rudal Yadav, resident of village- Khorha, P.S.-
Sugauli, District- East Champaran at Motihari.
... ... Respondents
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Appearance :
For the Petitioners : Mr. Dronacharya, Sr. Advocate
For the Respondents : Md. Khurshid Alam, AAG-12
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CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL JUDGMENT
Date : 08-01-2024
In this case, the petitioners are challenging the
general notice dated 25.01.2019 (Annexure-9) by which the
Circle Officer, Sugauli, District-East Champaran, has directed
for auction of settlement of a pond appertaining to thana no.14,
khata no. 87, khesra no. 85, total area of 142 decimals situated
on a Gair Mazarua Malik land, on 03.2.2019 at 11:00 A.M. in
Patna High Court CWJC No.4254 of 2019 dt.08-01-2024
2/11
his chambers/office but, the same was deferred to 08.02.2019
due to engagement of the Circle Officer, Sugauli, in the
Parliamentary Election 2019.
2. The case of the petitioners is that the ex-land
lord Mahant Ramavatar Nath was the owner of tauzi no.783,
khata no.87, plot no.85, Gair Mazarua Malik land having an
area of 1.42 acres, who settled the aforesaid land in favour of
one Onkar Nath Giri and accordingly a patta was granted to the
setlee. The settlement includes R.S. Plot nos. 84 and 85 of Khata
no.87. After vesting of Jamindari in the year 1955, return was
filed and Jamabandi was created in the Sirista of the State of
Bihar in favour of Onkar Nath Giri. There was a ditch over the
plot no.85 and after the settlement of land in favour of Onkar
Nath Giri, he cleared the ditch and used to rear the fish in the
same.
3. It is also the case of the petitioners that on
09.02.1988
said Onkar Nath Giri sold the land appertaining to
khata no. 87, plot no. 85, area 1.42 acres by four registered sale
deeds in name of petitioners and their ancestors. After which,
their names were also mutated and Jamabandi were created in
their names. Since purchasers are from one family, some of the
villagers instigated the Circle Officer, Sugauli, on wrong facts
Patna High Court CWJC No.4254 of 2019 dt.08-01-2024
and accordingly the Circle Officer, Sugauli informed the Sub-
Divisional Officer, Sadar, Motihari, who initiated the proceeding
under section 144 of Criminal Procedure Code over the plot
no.85 and thereafter the said proceeding was converted in
proceeding under section 145 of Criminal Proceeding Code and
ultimately the land was attached under section 146 of Criminal
Procedure Code on 11.4.1989.
4. According to the petitioners, they requested
the Sub Divisional Officer, Motihari to drop the proceeding but
he did not accept their request and as such, the petitioners sent
legal notice to the Collector, East Champaran as well as the
Circle Officer, Sugauli under section 80 of Civil Procedure
Code but, it also went in vein. Thereafter, the purchasers filed
Title Suit no.157 of 1989. In the said suit, the State of Bihar
through the Collector, East Champaran and the Circle Officer,
Sugauli were made defendants but, in spite of service of notice,
only the Circle Officer, Sugauli appeared before the Sub Judge,
Motihari. By order dated 12.6.1990 the Circle Officer was
directed to pay Rs.100/- as cost to accept his written statement
but, after that he left pairavi in the suit. Hence, Title Suit no.157
of 1989 was decided ex parte against the defendants vide
judgment and decree dated 19.12.1990 and 08.1.1991
Patna High Court CWJC No.4254 of 2019 dt.08-01-2024
respectively by the Sub Judge, I, Motihari. The defendants in the
Suit, filed a petition under Order IX Rule 13 of Civil Procedure
Code for setting aside ex parte decree, which was also dismissed
for default on 09.07.1998.
5. According to the petitioners, the judgement
and decree dated 19.12.1990 and 08.1.1991 respectively passed
in Title Suit no. 157 of 1989 have become final because till the
date same has not been challenged in any Court. After the said
judgement and decree in favour of plaintiffs, one of the plaintiffs
i.e. Plaintiff no.5, Janaradan Raut (petitioner no.1 herein) filed
an application before the Executive Magistrate, Sadar, Motihari,
who vide his order dated 28.6.1991 in T.R. no. 111 of 1991, has
dropped the proceeding and directed to send the information
about the same to the Circle Officer and Officer-in-Charge of
Sugauli Police Station for taking necessary action. It is the case
of the petitioners that they also sought information from District
Fishery Officer-cum- Chief Executive Officer, East Champaran,
whether the pond standing over the land in question is a
Government Jalkar, who vide letter contained in memo no.311
dated 17.8.1990 certified that this very plot has not been
transferred by the Circle officer, Sugauli as a Government
Jalkar.
Patna High Court CWJC No.4254 of 2019 dt.08-01-2024
6. It is also the case of the petitioners that after
judgement and decree passed by the Sub Judge, I, Motihari and
order dated 28.6.1991, they applied for mutation which was
allowed and Jamabandi nos. 1678 to 1681 were issued in their
favour and rent receipt were also issued till 2016-17 in their
favour. Again, on the complaint of local people against
petitioners, the Circle Officer, Sugauli called for a report from
the local revenue clerk and accordingly he submitted his report
to the Circle Officer, Sugauli disclosing that earlier the land was
of one Onkar Nath Giri, son of Mahant Ramavtar Giri but
thereafter different Jamabandi were created in favour plaintiffs
of Title Suit no. 157 of 1989 and accordingly the Circle Officer,
Sugauli informed the Officer-in-Charge, Sugauli Police Station
vide letter dated 10.2.2015. When the petitioners realized that
some antisocial elements are trying to take out the fishes from
their pond, they represented before the Sub Divisional Officer,
Sadar, Motihari vide letter no.343 dated 06.04.2016 and
requested the Circle Officer and Officer-in-Charge of Sugauli
Police Station to provide protection and take necessary action in
the matter, which was taken note by the Circle Officer, Sugauli
but, in spite of all these facts, the Circle Officer, Sugauli issued
a general notice dated 25.01.2019 for auction of settlement of
Patna High Court CWJC No.4254 of 2019 dt.08-01-2024
pond in question, which is impugned in the present petition.
During the pendency of the writ petition, one Harilal Yadav
(respondent no.6) was declared successful bidder and had
deposited an amount of Rs.3,10,200/- in the auction.
7. Learned counsel for the petitioner has relied
upon a judgement of the Hon'ble Supreme Court rendered in the
case of Deo Kuer & Another vs. Sheo Prasad Singh & Ors.
reported as AIR 1966 SC 359 and submitted that a suit for
declaration of title without a claim for possession would still be
competent and it is not necessary to ask for the relief of delivery
of possession where the defendant is not in possession and is not
able to deliver possession, which, it is not disputed.
8. In this case, the State has appeared and filed
its counter affidavit. In the counter affidavit, it has been stated
that the writ petitioners have never been in possession of the
pond situated over the Gair Majarua Malik land and the pond in
question has been in possession of the State of Bihar. Further,
argument of the State is that the land in question has been settled
to the highest bidder i.e. respondent no.6. The pond in question
never came in possession of the family of writ petitioners rather
they illegally tried to possess the pond in question and as such, a
proceeding was initiated under section 144 of Criminal
Patna High Court CWJC No.4254 of 2019 dt.08-01-2024
Procedure Code, after which the pond was attached under
section 146 of Criminal Procedure Code.
9. I have considered the submissions of learned
counsel for the parties and perused the materials on record.
Basically, the dispute between the parties and the State is with
regard to ownership of the pond in question which is claimed by
the petitioners. The claim of the petitioners has been decreed in
Title Suit No.157 of 1989 and the judgement and decree of the
Civil Court in favour of the petitioners has become final. The
contention of the State is that the petitioners were never in
possession of the pond in question and the mutation in their
favour was illegal and the Register-II was not available but, they
have not been able to deny the judgement and decree passed in
Title Suit No.157 of 1989 and the rejection of their application
for setting aside the ex parte judgement and decree. In the
opinion of this Court, the contention of the State that the
petitioners were never in possession of the pond in question
does not find favour of this Court as it is the State authorities
who have mutated the names of the petitioners and earlier the
State authorities including the Circle Officer have regularly
found the possession of the petitioners over the pond in
question.
Patna High Court CWJC No.4254 of 2019 dt.08-01-2024
10. Moreover, the Supreme Court in the case of
Deo Kuer & Another vs. Sheo Prasad Singh & Ors. (supra)
has held in paragraph nos. 3 to 6 as under:-
"3. The only point argued in this appeal was
whether in view of the attachment, the
appellants could have in their suit asked
for the relief for delivery of possession to
them. If they could not, the suit would not
be hit by the proviso to section- 42. The
parties seem not to dispute that in the case
of an attachment under section 146 of the
Code as it stood before its amendment in
1955, a suit for a simple declaration of title
without a prayer for delivery of possession
is competent. The respondents contend that
the position in the case of an attachment
under section 145 of the Code is different,
and in such a case the magistrate holds
possession for the party who is ultimately
found by him to have been in possession
when the first order under the section was
made. It was said that a suit for
declaration of title pending such an
attachment is incompetent under the
proviso to section 42 unless recovery of
possession is also asked for. It appears that
the attachment under section 145 in the
present case is still continuing and no
decision has yet been given in the
proceeding's resulting in the attachment.
4. In our view, in a suit for declaration of title
to property filed when it stands attached
Patna High Court CWJC No.4254 of 2019 dt.08-01-2024
under section 145 of the Code, it is not
necessary to ask for the further relief of
delivery of possession. The fact, if it be so,
that in the case of such an attachment, the
magistrate holds possession on behalf of
the party whom he ultimately finds to have
been in possession is, in our opinion,
irrelevant. On the question however
whether the magistrate actually does so or
not, it is unnecessary to express any
opinion in the present case.
5. The authorities clearly show that where the
defendant is not in possession that not in a
position to deliver possession to the
plaintiff it is not necessary for the plaintiff
in a suit for a declaration of title to
property to claim possession: see Sunder
Singh Mallah Singh Sanatan Dharm
High School, Trust v. Managing
Committee, Sunder Singh Mallah Singh
Rajput High School, 65 Ind App 106:
(AIR 1938 PC 73). Now it is obvious that
in the present case, the respondents were
not in possession after the attachment and
were not in a position to deliver possession
to the appellants. The magistrate was in
possession, for whomsoever, it does not
matter, and he was not of course a party to
the suit. It is pertinent to observe that in
Humayun Begam v. Shah Mohammad
Khan, AIR 1943 PC 94 it has been held
that the further relief contemplated by the
proviso to section 42 of the Specific Relief
Patna High Court CWJC No.4254 of 2019 dt.08-01-2024
Act is relief against the defendant only. We
may add that in K. Sundaresa lyer v.
Sarvajana Sowkiabil Virdhi Nidhi Ltd,
ILR (1939) Mad.986 : (AIR 1939 Mad
853) it was held that it was not necessary
to ask for possession when property was in
custodia legis. There is no doubt that
property under attachment under section
145 of the Code is in custodia legis. These
cases clearly establish that it was not
necessary for the appellants to have asked
for possession.
6. In Dukkan Ram v. Ram Nanda Singh AIR
1961 Pat 425 a contrary view appears to
have been taken. The reason given for this
view is that the declaratory decree in
favour of the plaintiff would not be binding
on the magistrate and he was free in spite
of it to find that possession at the relevant
time was with the defendant and deliver
possession to him. With great respect to the
learned Judge deciding that case, the
question is not whether a declaratory
decree would be binding on the magistrate
or not. The fact that it may not be binding
would not affect the competence of the suit.
The suit for a declaration without a claim
for the relief for possession would still be
competent in the view taken in the cases
earlier referred to, which is, that it is not
necessary to ask for the relief of delivery of
possession where the defendant is not in
possession and is not able to deliver
Patna High Court CWJC No.4254 of 2019 dt.08-01-2024
possession, which, it is not disputed, is the
case when the property is under
attachment under section 145 of the Code.
We think that Dukkan Ram's case AIR
1961 Pat. 425 had not been correctly
decided. We may add that no other case
taking that view was brought to our
notice."
11. For the afore-stated reasons and also the law
laid down by the Hon'ble Supreme in the case of Deo Kuer &
Another vs. Sheo Prasad Singh & Ors. (supra), this writ
application is allowed. Accordingly, the notice dated 25.01.2019
issued by the Circle Officer, Sugauli, District-East Champaran,
is hereby quashed and the auction of settlement of the pond in
question in favour of the respondent no.6 is held to be illegal.
The State authorities are directed to pay the auction amount of
Rs.3,10,200/-, collected from respondent no.6, to the petitioners
and they are also directed not to interfere in the possession of
the petitioners in future.
(Sandeep Kumar, J)
pawan/-
AFR/NAFR N.A.F.R.
CAV DATE N/A.
Uploading Date 10.01.2023
Transmission Date
