Dismissed

Shiv Awtar Yadav and Ors. v. State of Bihar and Ors.

Patna HC14 May 2013L.P.A/327/1996

Case brief

AI extract

What is this about?

This appeal challenges a judgment allowing a writ petition against the cancellation of Jamabandi. The two-judge bench held that Jamabandi cannot be cancelled by administrative order and a civil suit is the remedy, dismissing the appeal.

What did the court decide?

Appeal dismissed. Minority decision of the Division Bench allowing the writ petition against Jamabandi cancellation is affirmed.

Shiv Awtar Yadav and Ors. Vs State of Bihar and Ors. — Property and Title | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Letters Patent Appeal No.326 of 1996 IN

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Civil Writ Jurisdiction Case No. 1606 of 1994

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=========================================================== 1. Ramayan Yadav, son of Sita Yadav, resident of village Baluan, P.S. Bhatni, District Deoria, Uttar Pradesh.

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1. Raj Mangal Yadav 2(A) Komal Yadav 3. Shiv Awatar Yadav, Nos. 2, 2(A) and 3 sons of Ram Nandan Yadav, residents of village- Belwan Bhatwan, P.O. Bajodih Mahuawan, P.S. Vijaipur, District- Gopalganj.

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1. Sita Chaudhary, son of Haru Chaudhary, resident of Village Bhalwi Tola Sallahpur, P.O. Sallahpur, P.S. Bhatni, District Deoria, Uttar Pradesh.

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1. Gulab Pandey, son of Ram Naresh Pandey. 6. Manorath Pandey, son of Ram Naresh Pandey. 7. Ganesh Pandey, son of Ram Nakchhatra Pandey. 8. Awadhesh Pandey, son of Ram Nakchhatra Pandey. Nos. 5 to 8 are residents of village Banjaria, P.S. Banjaria, P.O. Bajodih Mahuawan, District Gopalganj. .... .... Appellants

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Versus

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1. The State of Bihar. 2. The Collector, Gopalganj, District Gopalganj. 3. The Deputy Collector, Land Reforms, Gopalganj, District- Gopalganj. 4. The Circle Officer, Vijaipur, District Gopalganj. .... .... Respondents…. Respondents 1^st Set.

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1. Nathuni Prasad, son of Bhikhu Kumhar. 6(i) Ram Daras Prasad 6(ii) Ram Baran Prasad 6(iii) Bajilal Prasad All sons of Mahabir Prasad, resident of village- Belwan Bhatwan, P.O. Bajodih Mahuawan, District Gopalgaj.

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1. Sheo Narayan Prasad, son of Late Bisarjan Kumar 8. Ramesh Prasad, son of Late Harhangi Prasad 9. Vinod Prajapati, son of Late Amir Prasad 10. Ram Chandra Pandey, son of Kanhaiya Pandey 11. Hari Kishun Pandey, son of Kanhaiya Pandey 12. Hari Kishun Pandey, son of Kanhaiya Pandey, Respondent nos.5 to 12 being, residents of village Belawa Bhathawa, P.O. Bajudih Mahuawa, P.S. Vijaypur, District-Gopalganj.

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Rajeshwar Prasad son of Late Banshi Prasad, resident of village Kotian, P.O. Ahiyapur, P.S. Vijaipur, District-Gopalganj.

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Indrasan Prasad, son of Late Banbari Prasad, resident of village Longia Dih, P.S. Baghauch, District Deoria, Uttar Pradesh, presently resident of village Bhatwan, P.O. Rajodih Mahuawan, P.S. Vijaipur, District Gopalganj.

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Patna High Court LPA No.326 of 1996 dt.14-05-2013

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… Petitioner…. Respondent 2^nd Set… Respondents.

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With

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Letters Patent Appeal No. 327 of 1996 IN

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Civil Writ Jurisdiction Case No. 4905 of 1994

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=========================================================== 1. Shiv Awatar Yadav, 2. Raj Mangal Yadav 2(A) Komal Yadav Nos.1, 2, and 2(A) are sons of Ram Nandan Yadav, residents of villageBelwan Bhatwan, P.O. Bajodih Mahuawan, P.S. Vijaipur, DistrictGopalganj.

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3.Ramayan Yadav, son of Sita Yadav, resident of village Baluan, P.S. Bhatni, District Deoria, Uttar Pradesh.

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1. Sita Chaudhary, son of Haru Chaudhary, resident of Village Bhalwi Tola Sallahpur, P.O. Sallahpur, P.S. Bhatni, District- Deoria, Uttar Pradesh.

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5 Gulab Pandey, son of Ram Naresh Pandey. 6. Manorath Pandey, son of Ram Naresh Pandey. 7. Ganesh Pandey, son of Ram Nakchhatra Pandey. 8. Awadhesh Pandey, son of Ram Nakchhatra Pandey. Nos. 5 to 8 are residents of village Banjaria, P.S. Banjaria, P.O. Bajodih Mahuawan, District Gopalganj. .... .... Appellants

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Versus

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1. The State of Bihar. 2. The Collector, Gopalganj, District Gopalganj. 3. The Deputy Collector, Land Reforms, Gopalganj, District- Gopalganj. 4. The Circle Officer, Vijaipur, District Gopalganj. .... .... Respondents…. Respondents 1^st Set.

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1. Manager Prasad son of Late Jhiguni Prasad 6. Most. Laungi Devi wife of Late Ram Awadhesh Prasad, resident of villageBelwan Bhatwan, P.O. Bajodih Mahuawan, District Gopalgaj.

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1. Indraman Prasad, son of Late Chaudhary Prasad 8. Sheo Narayan Prasad, son of Late Bisharajan Kumhar. 9. Ramesh Prasad, son of Late Harangi Prasad. 10. Suresh Prasad, son of Late Sheodhari Prasad 11. Bhikhu Prasad, son of Late Gharbharan Prasad. Respondent nos.5 to 11 being, residents of village Belawa Bhathawa, P.O. Bajodih Mahuawa, P.S. Vijaypur, District-Gopalganj. … Petitioner…. Respondent 2^nd Set… Respondents.

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=========================================================== Appearance : (In both the appeals) For the Appellants : Mr. Nitya Nand Mishra, Advocate Mr. Balmeeki Pandey Bhaskar, Advocate

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For the Respondents : Mr. Shashi Shekhar Dvivedi, Senior Advocate with Mr. Ranjan Kumar Dubey, Advocate Mrs. Sangeeta Sharma, Advocate

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Patna High Court LPA No.326 of 1996 dt.14-05-2013

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=========================================================== CORAM: HONOURABLE MR. JUSTICE S.N. HUSSAIN and HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH

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ORAL JUDGMENT

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(Per: HONOURABLE MR. JUSTICE S.N. HUSSAIN)

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14.05.2013

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Heard learned counsel for the appellants, learned counsel for the State of Bihar and its authorities as well as learned counsel for the private respondents.

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This case has a chequered history as initially CWJC No.4905 of 1994, CWJC No.5014 of 1994 and CWJC No.1606 of 1995 were filed by three different sets of persons against the respondents, who were common in all the three writ petitions. In all the aforesaid three writ petitions, the subject matter of challenge was the order of Circle Officer, Bijayipur, District Gopalganj dated 30.12.1992 cancelling Jamabandi in favour of the petitioners and creating Jamabandi in favour of private respondents and also the order of the Collector Gopalganj dated 08.03.1994 giving directions with respect to the aforesaid order of the Circle Officer. All the said writ petitions were contested by the respondents and were finally allowed by the learned Single Judge vide order dated 01.02.1996 and the impugned orders under challenge were quashed on the grounds (i) that no notice was given to the writ petitioners before cancellation of their Jamabandi; (ii) that Jamabandi cannot be cancelled by the said authority, rather civil suit is the only remedy; and (iii) that since the title suit with respect to the same subject matter is pending disposal before the competent civil court which fact was neither controverted by the private respondents

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Patna High Court LPA No.326 of 1996 dt.14-05-2013

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in their counter affidavit nor it was denied by the counsel appearing on behalf of the private respondents in course of argument.

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Against the order of the learned Single Judge dated 01.02.1996 passed in CWJC No.4905 of 1994 and CWJC No.1606 of 1995, the private respondents of the writ petitions filed L.P.A. No.327 of 1996 and L.P.A. No.326 of 1996 respectively. It is very important to note that against the similar order dated 01.02.1996 passed in CWJC No.5014 of 1994, no L.P.A. was filed by the same respondents of the writ petition who were also respondents in the other two writ petitions and they had filed L.P.A.s with respect to the order passed in the other writ petitions. Hence, order passed by the learned Single Judge dated 01.02.1996 passed in CWJC No.5014 of 1994 has attained finality.

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L.P.A. No.326 of 1996 and L.P.A. No.327 of 1996 were heard together and were dismissed by separate orders of the same date, i.e. 02.11.2006, after considering the claims of both the parties in detail. Against the aforesaid order in their two L.P.A.s dated 02.11.2006, appellants filed Civil Review No.212 of 2006 and Civil Review No.213 of 2006 which were heard together and were allowed by different orders both dated 20.03.2013 recalling order dated 02.11.2006 passed in the two L.P.As which were restored to their original files and numbers. Thereafter both the aforesaid L.P.A.s have been listed before this Court for consideration.

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From a bare perusal of the orders passed in the two review cases it transpires that it had been passed on the grounds that the Division Bench while disposing of the two letters patent appeals was swayed away by the fact that the civil suit was pending before the authorities, whereas

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Patna High Court LPA No.326 of 1996 dt.14-05-2013

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according to learned counsel for the review petitioners the suit was not pending on the date, L.P.As were disposed of and this fact was not brought to the notice of the Court.

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It further transpires that the review court in its order dated 20.03.2013 had taken notice only of the point with respect to the pendency of the suit at the time of order passed in the appeal, but the other two aspects of the matter, namely absence of notice to the writ petitioners before cancellation of their Jamabandi and cancellation of Jamabandi by the authority having no jurisdiction had not been considered at all.

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Learned counsel for the appellants was given full opportunity to show that notices were given to the writ petitioners before cancellation of their Jamabandi, but apart from one statement on affidavit, there is no material to show that the Jamabandi of the writ petitioners were cancelled by the impugned orders after giving notice to the writ petitioners. Even that statement is contradicted by the respondents of these appeals.

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So far the other point is concerned, it is settled principle of law that the Jambandi cannot be cancelled by the said authority, rather a civil suit is the only remedy. On this point, a plethora of decisions are available including a decision of the Division Bench of this Court in case of Khiru Gope and two others Versus The Land Reforms, Deputy Collector, Jamui and three others, reported in A.I.R. 1983 Patna 121. Learned counsel for the appellants completely failed to controvert this issue.

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It is quite apparent that in the name of predecessors of the writ petitioners Jamabandi was created in Jamabandi cases of 1977-78 which were decided in 1983 and only after a decade approximately the said Jamabandi had been cancelled by the Circle Officer and Jamabandi had

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Patna High Court LPA No.326 of 1996 dt.14-05-2013

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been created in favour of the private respondents without giving any notice or information about the said case to the writ petitioners. Furthermore, creation of Jamabandi cannot legally depend merely on fixation of rent, rather it is the other way round and hence if the authorities have taken such an action it is absolutely illegal, arbitrary and perverse and the learned Single Judge who had passed the order was quite justified in allowing the claim of the writ petitioners.

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Furthermore, pendency of the title suit is not very important because if title suit is pending the issue of cancellation of Jamabandi can be decided in the said title suit and if the title suit is not pending, the aggrieved party has to file a title suit for cancellation of Jamabandi, hence the said plea of the petitioner does not cut much ice. In any view of the matter it is only the title suit in which such matter can be legally decided.

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In the said circumstances, this Court does not find any illegality in the impugned orders of the learned Single Judge passed in the aforesaid two writ petitions and accordingly, both these Letters Patent Appeals are dismissed.

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(S.N. Hussain, J)

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(Ahsanuddin Amanullah, J)

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Sunil/-

Shiv Awtar Yadav and Ors. v. State of Bihar and Ors.

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Shiv Awtar Yadav and Ors. v. State of Bihar and Ors.

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