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1993 Supreme(Pat) 236
PATNA HIGH COURT
S.B.Sinha and A.N.Chaturvedi JJ.
Sitaram Chaubey
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 8076 of 1991 ;
Decided On : MAY 21, 1993
An entry in the records of right does not create any title in favor of any person, and cancellation of jamabandi does not amount to cancellation of settlement.
Headnote:
LAND REFORMS - Bihar Tenancy Act, 1885 - Sec.103-B(3) - Bihar Land Reforms Act, 1950 - Sec.4(h) - Cancellation of Jamabandi - Effect - Entry in Record of Rights - Nature - Presumption of Correctness - Rebuttal - Suit or Application for Correction - Limitation - Mutation Authorities - Jurisdiction - Administrative Orders - Judicial or Quasi-Judicial Orders - Distinction - Civil Court's Jurisdiction.
Fact of the Case:
Petitioners claimed occupancy rights over the land in question, alleging settlement by the ex-tenure holder in 1944 and issuance of rent receipts. The State of Bihar's name was entered in the revisional survey settlement records in 1970. Petitioners filed an application for correction of jamabandi, which was allowed, creating a fresh jamabandi. An ex-parte order was passed cancelling the jamabandi, and the petitioners challenged this order in a writ petition.
Finding of the Court:
The court held that the entries in the survey settlement records of right had been finally published in 1970, and the petitioners did not take any steps to question the correctness of the entry within the limitation period prescribed under the Bihar Tenancy Act. The court further held that mutation authorities are normally bound by the entries made in the survey settlement records of right, and that orders of mutation are administrative orders and not judicial or quasi-judicial orders.
Issues: 1. Whether the cancellation of jamabandi amounted to cancellation of settlement, resulting in extinguishment of the settlement purportedly made in favor of the petitioners by the ex-landlord? 2. Whether an entry in the records of right creates any title in favor of any person? 3. Whether the effect of the impugned order would be creation of title in favor of the State of Bihar and extinguishment thereof so far as the petitioners are concerned?
Ratio Decidendi: 1. The court held that cancellation of jamabandi does not amount to cancellation of settlement, as payment of rent does not create title and non-payment does not extinguish it. 2. The court held that an entry in the records of right does not create any title in favor of any person. 3. The court held that the question of whether the petitioners have derived valid right title in respect of the land in question has to be adjudicated upon in a duly constituted civil suit by the Civil Court.
Final Decision: The court dismissed the writ petition, holding that it was not a case where the court should exercise its jurisdiction under Articles 226 and 227 of the Constitution of India.
S. B. Sinha, J.
1. This application is directed against an order dated 10-10-1991 passed by the Respondent No.2 as contained in Annexure-7 to the writ application whereby and whereunder the Jamabandi standing in the name of the petitioners have been directed to be cancelled.
2. Shortly put the fact of the matter is as follows :-
In the year 1944 the ex-tenure holder allegedly granted settlement of the land in question in favour of the petitioners and issued rent receints in relation thereto.
3 According to the petitioners they being occupancy raiyat of the village acquired occupancy right in relation to the land in question. After vesting of the State of the ex-tenure holder in the State of Bihar the petitioners name was entered into Register II (Annexure-1) and rent receipts had all along been issued by the State of Bihar.
4. Admittedly revisional survey settlement operation took place in the year 1970 wherein the name of the State of Bihar was entered,
5. It is also accepted that the petitioners did not file any suit under the provisions of Bihar Tenancy Act or any civil suit questioning the aforementioned entry in the revisional survey record of rights.
6. The petitioners however, filed an application for correction of jamabandi which was allowed purported to be on a consideration that the petitioners had been in possession thereof and by reason of Annexure-3 to the writ application, fresh Jamabandi was created.
7. Allegedly, however by reason of the order dated 15-4-1991 an ex-parte order was passed cancelling the aforementioned Jamabandi.
8. The petitioners filed a writ application in this court being CWJC no.3362 of 1991 and during the pendency of the said writ application the aforementioned order dated 15-4-1991 was recalled and notice was given to one of the petitioners. The said writ petition is said to be pending but according to Mr. Chaubey, the learned counsel appearing on behalf of the petitioners, the same has become infructuous. Thereafter upon hearing the parties, the impugned order dated 10-10-1991 as contained in Annexure-7 has been passed.
9. Mr. Kamal Nayan Choubey, the learned counsel appearing on behalf of the petitioners inter alia submitted that the order of cancellation of jamabandi will have the effect of cancellation of settlement which cannot be done in the absence of the proceeding under Sec.4 (h) of the Bihar land Reforms Act, 1950.
10. The learned counsel in support of his contention relied upon a decision of this Court in Harihar Singh V/s. Additional Collector and others, reported in 1978 BBCJ 323 and Khiru Gope V/s. Land Reforms Deputy Collector, namui reported in 1983 PLJR 727.
11. The learned counsel next contended that the State of Bihar, in its counter affidavit has wrongly taken the stand that the land in question having been recorded as Gair Majarua Am Land could not have been given in settlement by the ex-landlord.
12. According to the learned counsel in view of the decision of this court in Brij Bhukhan Kalwar and others V/s. S. D. O. Siwan and others, reported in AIR 1955 Patna 1, even the settlement of the Gair Majarua Am Land is permissible in law.
13. The learned counsel further submitted that the impugned order would have the effect to eject the raiyat which could only be done in terms of section 25 of the Bihar Tenancy Act.
14. It was also submitted that in any event, the entry in the record of rights cannot be considered to be a document of title. The learned counsel in this connection has relied upon a decision of this court in Nand kumar Rai and others V/s. The State of Bihar and others, reported in 1974 pljr 27.
15. Mr. D. K. Sinha, the learned standing counsel No.4 appearing on behalf of the State, on the other hand, submitted that the entries having been made in the name of the State of Bihar in the revisional survey settlement records of right the petitioners cannot be said to have been prejudiced by reason of the impugned order.
16. In view of the point involved i
