Disposed of the writ application for lack of maintainability following the death of respondent no. 4, holding the dispute academic and the impugned order inoperative.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4984 of 1983
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... ... Petitioner/s
Versus
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Anand Kr.Verma, Advocate For the Respondent/s : Mr.Rajendra Pd, SC-1
====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH CAV JUDGMENT Date : 17-10-2019
An order dated 22.09.1983, passed by the Joint Director of
Consolidation in Case No. 461 of 1979 under Section 35 of
Patna High Court CWJC No.4984 of 1983 dt. 17-10-2019 2/8
Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as ‘the Act) is under challenge in the present writ application.
“Learned counsel for the Appellant has brought to the notice of this Court that the aforesaid judgment of this Court in the case of R.S.Pathak (supra) has been over-ruled by a Division Bench of this Court in the case of Junaid Khan Versus The State of Bihar and others reported in 1995(2) PLJR, 301, wherein it has been held that the provisions of the Indian Evidence Act are not strictly to be followed in the matter of consolidation proceedings.
This fact has also been accepted by the learned counsel for the Respondent. In this background, the impugned judgment dated 23rd August, 1994, passed by learned Single Judge in C.W.J.C. No. 4984 of 1983 is set aside.
Patna High Court CWJC No.4984 of 1983 dt. 17-10-2019 3/8
The matter is remitted back to the learned Single Judge to decide the matter on merits.
This Letters Patent Appeal is, accordingly, allowed.”
Patna High Court CWJC No.4984 of 1983 dt. 17-10-2019 4/8
Indrasan Kuer (the deceased petitioner). Phusbaso Kuer died in 1958. She, as asserted on behalf of the petitioner, had executed two deeds of gift in her favour and in favour of one of her sons Ramendra Kishore Singh, jointly in respect of two villages. Phulbaso Kuer died in 1958 and Nathuni Singh also died subsequent thereto. It is the case of the substituted petitioners that Indrasan Kuer was thus the nearest heir to succeed the properties of her father, mother and brother.
Patna High Court CWJC No.4984 of 1983 dt. 17-10-2019 5/8
(original respondent no. 4, who died during pendency of this application and her name has been expunged in the absence of any heir/ legal representative to represent her state) filed an application before the consolidation officer in the year 1978-79 leading to Registration Case No. 111 of 1978-79 claiming her share, being widow of Ramendra Kishore Singh. The consolidation officer had rejected her application by an order dated 06.01.1979 but had made an observation that she would be at liberty to approach the appropriate authority under Section 35 of the Act, if she wanted any correction in the entry made in the register. Subsequent to passing of the said order dated 06.01.1979, the Consolidation Officer passed yet another order dated 29.01.1979 directing recording of the name of the original petitioner Indrasan Kuer as well as original respondent no. 4 (Jagrano Devi) by correcting the khatiyan. The subsequent order dated 29.01.1979 was challenged by the petitioner before the Deputy Director of Consolidation, who, by his order dated 28.03.1979, allowed the appeal and set aside the order as contained in Annexure-2. While setting aside the order, the Deputy Director, Consolidation held that after the consolidation scheme having already been confirmed in respect of the villages concerned, the Consolidation Officer had no jurisdiction to make
Patna High Court CWJC No.4984 of 1983 dt. 17-10-2019 6/8
any correction. He observed that respondent no. 4 shall be at liberty to make an application under Section 35 of the Act. It is in this background that respondent no. 4 filed an application before the Joint Director, Consolidation under Section 35 of the Act which has been allowed by the impugned order holding that names of the petitioner and respondent no. 4 be recorded in the register with half and half each of the land and Chakpanji be recorded accordingly.
Patna High Court CWJC No.4984 of 1983 dt. 17-10-2019 7/8
Ratan Singh.
“12. From consideration of the facts stated above, it is clear that respondent no. 1 has not at all taken into consideration the provision of the Indian Evidence Act as observed earlier. He neither examined any witness for determining the issues in question nor the document relied upon by the parties are legally brought on record. In such view of the matter there cannot be any doubt that in passing the impugned order respondent no. 1 has committed an illegality by not following any procedure required under the Act and the Rules and as such the order impugned cannot be sustained in law and as such liable to be set aside.
13. In the result, this writ application is allowed and the order dated 22.09.1983 as contained in Annexure-4 is set aside. There will be no order as to costs.”
the correctness of the judgment and order dated 23.08.1994 passed in the present case, taking note of a Full Bench decision in case of Junaid Khan vs. The State of Bihar and others reported in 1995 (2) PLJR 301 held that provisions of the Indian Evidence Act were not to be strictly followed in the matters of
Patna High Court CWJC No.4984 of 1983 dt. 17-10-2019 8/8
consolidation proceedings. On this reasoning, the order earlier, passed in the present case allowing the writ application, was set aside and the matter was remanded back.
“2. That it is humbly stated that Deceased Respondent No. 4-Jagrano Devi died on 13.06.2018 during pendency of the present case. Her husband pre-deceased her. There is no surviving heir to the aforesaid deceased Respondent No. 4 to the knowledge of the deponent.”
Rajesh/-
(Chakradhari Sharan Singh, J)
| AFR/NAFR | NAFR |
|---|---|
| CAV DATE | 19.07.2019 |
| Uploading Date | 17.10.2019 |
| Transmission Date | NA |
3 issues framed by the court
Whether the writ application filed by the petitioner is maintainable after the death of respondent no. 4.
Whether the death of respondent no. 4 renders the dispute academic and the earlier order of the Joint Director of Consolidation inoperative.
Whether the Joint Director of Consolidation exceeded jurisdiction by recording names under Section 35 of the Act after the scheme was confirmed.
Colour shows how this judgement treated each authority
5 provisions across 5 enactments
Most Nirmala Devi and others
The Joint Director of Consolidation, Muzaffarpur
The Deputy Director of Consolidation, Bhojpur
The Consolidation officer, Dumraon
Jagrano Devi
Chakradhari Sharan Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
