[Cites 8, Cited by 0]
Patna High Court
Vikash Kumar @ Vikash Kumar Choudhary @ ... vs The State Of Bihar on 31 January, 2026
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.881 of 2026
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1. Vikash Kumar @ Vikash Kumar Choudhary @ Bikas Kr. Choudhary S/o
Ravish Chandra Choudhary and late Lakshmi Devi.
2. Sanjay Kumar @ Sanjay Kumar Choudhary, S/o Ravish Chandra Choudhary
and late Lakshmi Devi.
3. Sadhna Kumari, D/o Ravish Chandra Choudhary and late Lakshmi Devi,
4. Ravish Chandra Choudhary, Son of Late Bhuvaneshwar Prasad Choudhary,
All are Resident of Ward No. 04 Raniganj Road, Rampur (East), P.O.
Rampur, P.S. Forbesganj, District- Araria, Bihar.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Revenue
and Land Reforms, Government of Bihar, Patna.
2. The Divisional Commissioner, Purnea Division, Purnea, Bihar.
3. The Collector, Araria District, Araria, Bihar.
4. The Additional Collector, Araria, Bihar.
5. The Deputy Collector Land Reforms (D.C.L.R.), Forbesganj, Araria, Bihar.
6. The Circle Officer, Forbesganj, Araria, Bihar.
7. The Halka Karamchari, Forbesganj, Araria, Bihar.
8. Abhas Kumar Jha, Son of Sri Arvind Jha, Resident of Village- Mow
Dhaneshpur East, P.O. and P.S. Vidyapati Nagar, District- Samastipur, Bihar,
presently residing at C/o Harendra Pd. Thakur, P.O. Dhalbajja, P.S.
Forbesganj, District Araria, Bihar.
9. Sumitra Devi, Wife of Late Mahendra Prasad Choudhary, daughter of late
Bhuvneshwar Prasad Choudhary, Resident of Sarda Sadan, Opposite
Tapasya Complex, Boring Road, P.S. Sri Krishnapuri, District- Patna-
800001.
10. Vijay Kumar @ Vijay Kumar Saurav, Son of Late Mahendra Prasad
Choudhary, Resident of Sarda Sadan Opposite Tapasya Complex, Boring
Road, P.S. Sri Krishnapuri, District- Patna- 800001.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Ankit Katriar, Advocate
For the Respondent/s : Mr. Krishna Kant Singh, Advocate
Patna High Court CWJC No.881 of 2026 dt.31-01-2026
2/12
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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 31-01-2026
Heard Mr. Ankit Katriar, learned counsel appearing
on behalf of the petitioners and Mr. Krishna Kant Singh,
learned counsel for the State.
2. Petitioners have inter alia prayed for following
reliefs in the paragraphs No.1 of the writ petition:-
"1.1 For issuance of writ in the nature of
certiorari to quash the Order dated 20/06/2023 passed by
the Additional Collector, Araria in Jamabandi Cancellation
Case No. 264/2022 wherein and whereby the application
for cancellation of jamabandi filed on behalf of Respondent
No. 08 has arbitrarily and illegally been allowed.
1.2. For issuance of a writ in the nature of
certiorari to quash the consequential Order dated
25/05/2024
passed by the Circle Officer, Forbesganj in
Mutation Case No. 5485/2023-24.
1.3. For issuance of writ in the nature of
certiorari to quash the Order dated 23/09/2025 passed by
the Collector, Araria in Jamabandi Appeal Case No.
51/2023 wherein and whereby the Petitioners' appeal has
arbitrarily, and illegally been dismissed.
1.4. For issuance of writ in the nature of
mandamus directing the Respondent Authorities to restore
Jamabandi No. 5299 in the name of the Petitioners.
1.5. For issuance of writ in the nature of
mandamus staying the operation, implementation, and
execution of the Order dated 23/09/2025 passed by the
Collector, Araria in Jamabandi Appeal Case No. 51/2023 &
Order dated 20/06/2023 passed by the Additional Collector,
Araria in Jamabandi Cancellation Case No. 264/2022
during pendency of the writ application.
1.6. For any other relief or reliefs for which
the Petitioners may be deemed entitled to in the facts and
circumstances of the case.
3. Brief facts of the case are that the property in
question bearing Khata No.1487, Khesra nos.1501, 1502,
measuring an area of 58 decimals and 26 decimals, total 84
Patna High Court CWJC No.881 of 2026 dt.31-01-2026
decimals, situated at Mauja Rampur, Anchal Forbesganj was
originally purchased on 18.06.1973 by late Bhuvneshwar Prasad
Choudhary, grandfather of petitioner Nos. 01 to 03 and father of
Petitioner No. 04, vide Sale Deed No. 3261. Subsequently, he
executed a registered Gift Deed No. 7446 dated 27.11.1995 in
favour of his eldest daughter-in-law, late Laxmi Devi (mother of
Petitioner Nos. 01 to 03 and wife of Petitioner No. 04),
conveying 42 decimals out of the total 84 decimals. On the basis
of the said Gift Deed, Jamabandi No. 5299 was opened in the
name of late Laxmi Devi. Rent was fixed by the authorities and
the petitioners have remained in peaceful possession for nearly
three decades, having constructed a residential house, shops,
and installed a mobile tower with electricity connection. Dispute
arose when Respondent No. 09 (sister of Petitioner No. 04 and
paternal aunt of Petitioner Nos. 01 to 03), along with
Respondent No. 10, began claiming an illegal share by
threatening the petitioners and thereafter filed Title Suit No.
121/2018 before the Court of Sub-Judge I, Araria, seeking
partition in the said property.
4. Learned counsel appearing on behalf of the
petitioners submitted that so far as jamabandi No.5299 which is
standing in the name of late Lakshmi Devi, mother of
Patna High Court CWJC No.881 of 2026 dt.31-01-2026
petitioners no.1, 2 and 3 and wife of petitioner no.4 is
concerned, the same was gifted by father-in-law of late Lakshmi
Devi, namely, late Bhuneshwar Prasad Choudhay, grand-father
of petitioners no.1, 2 and 3 and father of petitioner no.4, by a
registered gift deed no.7446 dated 27.11.1995, out of which title
suit no.121 of 2018 was filed by respondent no.9, namely,
Sumitra Devi D/o late Bhuneshwar Prasad Choudhay and sister-
in-law of late Lakshmi Devi, seeking partition. However, the
application filed for cancellation of jamabandi before the
Additional Collector was filed by an outsider, namely Abahsh
Kumar Jha, allegedly on the ground that he is caretaker of said
Sumitra Devi/respondent no.9. Learned counsel further
submitted that the aforesaid title suit was later on withdrawn on
19.08.2023, which finds reference in the order of the Circle
officer dated 25.05.2024. Learned counsel further submitted
that the order dated 20.06.2023 passed by the Additional
Collector, Araria in Jamabandi Cancellation Case No.264/2022
on the basis of application made by a person, Abhas Kumar Jha,
claiming himself to be the caretaker of the property of
respondent no.9 is not in accordance with law. He has relied
upon a judgment of the Apex Court in case of Himalaya
Vintrade Private Limited Versus Mohd. Zahid and another
Patna High Court CWJC No.881 of 2026 dt.31-01-2026
reported in (2022) 13 SCC 649.
5. On the above facts, learned counsel submitted that
the orders passed by the Additional Collector and the Collector
are required to be interfered with on the ground that though
there is no interference with Jamabandi no.5019 standing in the
name of late Bhuneshwar Prasad Choudhay but without
considering the above fact, the jamabandi no.5299 standing in
the name of late Laxmi Devi, mother of petitioners no.1, 2 and 3
is also not required to be cancelled and to that extent, the
Additional Collector and the Collector have committed error of
record. Learned counsel further submitted that in light of the
sub-section(12) of Section 6 of Mutation Act, the Circle Officer
or other revenue authorities were not competent or having
jurisdiction to create jamabandi, once title Suit No.121/2018
filed by respondent no.9 was pending.
6. Per contra, Mr. Krishana Kant Singh, learned
counsel appearing on behalf of the State submitted that any
person has right to file application before the appropriate
authorities, if it comes to his knowledge that on the basis of
illegal information, jamabandi has been created and therefore,
the same requires cancellation as per Section 9 of the Bihar
Mutation Act, 2011. Referring to Section 9, he submitted that
Patna High Court CWJC No.881 of 2026 dt.31-01-2026
the Additional Collector don't have jurisdiction to verify the
person, whether he is actual owner or does he have any concern
or interest in the said property and as such, the Additional
Collector and the Collector have not committed any mistake
either error of record or error of law insofar as upholding the
jamabandi no.5019 which stands in the name of late
Bhuneshwar Prasad Choudhay. However, the petitioners who
are seeking their right from the said jamabandi to be the legal
heirs of late Bhuneshwar Prasad Choudhay have challenged the
said order which is without merit. So far as jamabandi no.5299
is concerned, it is admitted position that in respect of the land in
question mentioned in the said jamabandi, title suit no.121 of
2018 was filed before the learned District Court, Araria by
respondent no.9/Sumitra Devi and said Sumitra Devi has
obtained favourable order from the office of the Circle Officer
in mutation case no.5485 of 2023-24. Mr. Singh emphatically
submitted that the order dated 25.05.2024 passed by the Circle
Officer which affects the right of the petitioners, has been
challenged straight away in the present writ petition and the
petitioners have not availed the remedy before the appropriate
authority and as such, the writ petition is totally misconceived
and is not fit to be entertained by this Court.
Patna High Court CWJC No.881 of 2026 dt.31-01-2026
7. Heard the parties.
8. The question regarding entertaining application
filed by a caretaker who has no interest in the property on the
basis of any possession in respect of the said property has been
settled by the Apex Court in case of Himalaya Vintrade Private
Limited Versus Mohd. Zahid and another reported in (2022) 13
SCC 649, which is reproduced hereinafter:
"2. The facts on record are not in dispute. The appellant-
defendant initially entered into an agreement to sell of
the subject property in question on 23-2-2018 and after a
formal deed of conveyance finally a sale deed was
executed on 30-9-2019 and his right of ownership over
the subject property in question became absolute.
3. Respondent 1 plaintiff filed a suit with the following
prayer:
(a) For a declaration that the plaintiff is a lawful
occupier as caretaker/servant of the sole owner of
the Schedule A property and occupier and adverse
possessor of the Schedule B property.
(b) For the permanent injunction restraining
defendant to disturb or evict the peaceful possession
of the plaintiff otherwise than by the due course of
law.
Schedule A of property
All that an area of land admeasuring 16 kh. 3 ch. 4
sq ft be the same and a little more or less with three
storeyed residential building have each floor are
5000 sq ft more or less and some vacant possession
lying and situated at Premises No. 217, Lower
Circular Road and now known as 217 A.J.C. Bose
Road, Kolkata-700 017 PS Beniapukur, Dist-South
24 Parganas.
Schedule B property
All that three rooms and one godown along with
some vacant land at premises No. 217, Lower
Circular Road and now known as 217 A.J.C. Bose
Road, Kolkata-700 017 P.S. Beniapukur.
4. It was a specific case of Respondent 1 plaintiff that he
Patna High Court CWJC No.881 of 2026 dt.31-01-2026
was in possession of the subject property as a
caretaker/servant. Paras 2, 4 and 6 of the plaint are
reproduced hereunder:
"2. That the plaintiff is a servant/caretaker of the
"A" schedule property appointed by Mirza
Habibullah Khaleeli and the said sole owners of the
said property allow the plaintiff for use and residing
all that three rooms and one godown along with
some vacant land which is more fully and
particularly described in the "B" schedule below
lying and situated at premises No. 217, Lower
Circular Road and now known as 217 A.J.C. Bose
Road, Kolkata-700 017 P.S. Beniapukur is the
subject-matter of the suit within the jurisdiction of
this learned Court.
***
4. That on all of a sudden the defendants and their
men and agents with other anti-social elements
trying to take or enter into the plaintiff's rooms i.e.
Schedule B property with an ulterior motive they
trying to dispossess the plaintiff from his lawful
occupation as servant/caretaker with a view to grab
the occupation/residence but the defendant is not
success to fulfil their ill desired, for the intervention
of the local people and their strong support the
defendants could not succeed there to oust and
dispossess the plaintiff.
***
6. That the right title interested possession of the
plaintiff in the suit property as well as lawful right
of servant and caretaker and claiming as adverse
possessor of the Schedule B property even thus been
clouded for unlawful act of the defendants so the
plaintiff is compelled instituted the instant suit
against the defendant for declaration
that the defendant be not ousted from the Schedule B
property i.e. suit property other than due process of
law and for permanent injunction against the
defendant not to disturb the peaceful possession of
the suit property and also not disturb or the egress
and ingress of the suit property."
5. After the notice was served the application under
Order 7 Rule 11CPC came to be filed at the behest
of the present appellant-defendant with an objection
that the suit proceedings at the instance of
Respondent 1 plaintiff who had pleaded himself to
be a caretaker/servant, acquires no interest in the
subject property irrespective of his long possession,
is not maintainable under the law and as regards the
Patna High Court CWJC No.881 of 2026 dt.31-01-2026
plea of adverse possession is concerned, it lacks
material particulars.
6. The trial Judge dismissed the application on the
premise that these are the subject-matter of disputes
which can be examined only after the written
statement being filed at the behest of the present
appellant-defendant and is not within the scope of
Order 7 Rule 11CPC and the order of trial Judge
came to be confirmed by the High Court by the
impugned order [Himalaya Vintrade (P) Ltd. v.
Mohd. Zahid, 2021 SCC OnLine Cal 2621] assailed
in the present proceedings.
7. After we heard the counsel for the parties and
taking into consideration the material on record, in
our considered view, the trial court has committed a
manifest error in appreciating the pleadings on
record from the plaint filed at the instance of
Respondent 1 plaintiff who as a caretaker/servant
can never acquire interest in the property
irrespective of his long possession and the
caretaker/servant has to give possession forthwith
on demand and so far as the plea of adverse
possession is concerned as it lacks material
particulars and the plaint does not disclose the
cause of action for institution of the suit.
8. In our considered view, the order of the learned
trial Judge which has been confirmed by the High
Court impugned in the instant proceeding is not
sustainable on the first principles of law.
9. Consequently, the appeal succeeds and is
allowed. The order [Himalaya Vintrade (P) Ltd. v.
Mohd. Zahid, 2021 SCC OnLine Cal 2621] of the
High Court is, hereby, quashed and set aside. The
plaint No. T.S. 150/2019, on the file of learned 2nd
Civil Judge (Jr. Div) at Sealdah is, accordingly,
rejected.
10. Since we have rejected the plaint in reference to
the proceeding initiated, we direct Respondent 1
plaintiff to hand over, vacant and peaceful
possession of the subject property in question free
from all encumbrances within three months.
11. If Respondent 1 plaintiff fails to hand over
possession, the appellant-defendant will be at
liberty to take the recourse as known to the law."
9. Record reveals that Respondent No. 09, through
Patna High Court CWJC No.881 of 2026 dt.31-01-2026
her caretaker, Abhas Kumar Jha/Respondent No. 08, filed
Jamabandi Cancellation Case No. 264/2022 without disclosing
the pendency of Title Suit No. 121/2018, claiming that the land
belonged to Sumitra Devi and obtained an ex parte order dated
20.06.2023 from the Additional Collector, Araria, who cancelled
the petitioners' jamabandi on the basis of an unregistered deed
of relinquishment and alleged absence of revenue records. The
Additional Collector further directed the termination of
Jamabandi No. 5299, with restoration to the previous Jamabandi
No. 5019. Aggrieved by the said order of the Additional
Collector, the petitioners filed an appeal before the Collector,
Araria, bearing Mutation Appeal Case No.51/2023, however, the
appeal was also rejected vide order dated 23.09.2025. In the
meantime, respondent no.9 applied for mutation of the land in
question which was finally allowed vide order dated 25.05.2024
by the Circle Officer, Forbesganj in Mutation Case
No.5485/2023-24 in view of the aforesaid order dated
20.06.2023 of the Additional Collector. Meanwhile, Respondent
No. 09 withdrew Title Suit No. 121/2018 after securing the
adverse revenue order.
10. In the facts of the case, I find that judgment or
decree obtained by fraud is to be treated as a nullity, non-
Patna High Court CWJC No.881 of 2026 dt.31-01-2026
disclosure of the relevant and material documents with a view to
obtain an undue advantage would amount to fraud.
11. Recently the Apex court taking into
consideration its earlier judgments has held in paragraph no.21
in case of Ram Kumar vs. State of Uttar Pradesh and Ors.
reported in 2022 Livelaw (SC) 806, which is inter alia as under:
"21. This Court, in the case of S.P.
Chengalvaraya Naidu (Dead) By LRs. Vs.
Jagannath (Dead) by LRs and others has held that
non-disclosure of the relevant and material
documents with a view to obtain an undue
advantage would amount to fraud. It has been held
that the judgment or decree obtained by fraud is to
be treated as a nullity. We find that respondent No.9
has not only suppressed a material fact but has also
tried to mislead the High Court. On this ground
also, the present appeal deserves to be allowed."
.
12. I have perused the order passed by the
Additional Collector, Araria in Jamabandi Cancellation Case
No.264 of 2022 and I find that the Additional Collector has not
committed any mistake in upholding the jamabandi no.5019
which was upheld by the Collector, Araria vide order dated
23.09.2025 passed in Jambandi Appeal Case No.51 of 2023. I
don't find that the petitioners are in any way affected by the said
order. However, so far as order dated 25.05.2024 passed by the
Circle Officer in Mutation Case No.5485/2023-24 is concerned,
the petitioners have liberty to avail appropriate remedy, also in
the background that Sumitra Devi / respondent no.9 after having
Patna High Court CWJC No.881 of 2026 dt.31-01-2026
filed Title Suit No.121 of 2018 has withdrawn the same after the
order by which the Circle Officer in a misconceived manner has
passed the order. The Circle officer could not have entertained
the application or would have allowed the same when
admittedly he has recorded that Title Suit No.121 of 2018 was
withdrawn before passing of the order dated 25.05.2024 in view
of the bar contained in sub-section(12) of Section 6 of Bihar
Mutation Act. Accordingly, the order dated 25.05.2024 passed
by the Circle Officer is hereby quashed and set aside.
13. The parties, if so advised, may avail
appropriate remedy before the competent civil court having
jurisdiction for declaration of their title in accordance with law
as disputed question of title cannot be decided by this Court
under Article 226 of the Constitution of India.
14. The writ petition is, accordingly, disposed of.
(Purnendu Singh, J)
Sanjay/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 06.02.2026
Transmission Date NA
