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2005 Supreme(Pat) 278

PATNA HIGH COURT
Mridula Mishra, J.
Sabitri Devi
Versus
Rangnath Tiwary
Civil Writ Jurisdiction Case No. 15655 of 2001 ;
Decided On : MARCH 10, 2005

Headnote:Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 - Section 35 - Revisional jurisdiction Scope of - On comparison of revisional jurisdiction under Section 32 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act. under Section 35 of the present Act and under Section 397 of the Code of Criminal Procedure, wide scope of Section 35 can be understood well - Section 35 of the Consolidation Act does not employ the other well known limitation in the revisional jurisdiction which are with regard to only the legality or propriety of the order passed by the Court below - The Consolidation Act is welfare legislation and directly an application can be filed before the Director, Consolidation under Section 35 of the Act if any injustice has been done - so far the jurisdiction of the Director. Consolidation, under Section 35 is concerned, prima facie no matter is deemed to be beyond the jurisdiction of superior court unless it is - expressly shown to be so, while nothing is within the jurisdiction of the inferior court unless it is expressly shown on the face of the proceedings that particular matter is within the cognizance of the particular court -Considering the wide jurisdiction u/s 35 there is no jurisdictional illegality while entertaining the revision application filed without preferring the appeal.(Paras 9 - 10)

       Bihar Consolidation of Holding and Prevention of Fragmentation Act; 1956 Section 35 -Order passed in revision during pendency of a first appeal in the High Court - No stay granted in favour of the appellant - petitioner in the first appeal - mere filing of an appeal does not suspend the decree of the trial court - In such circumstances, Director, Consolidation has no reason for refusing to exercise his jurisdiction u/s 35 and no error committed by him while passing the impugned order. (Para 12)

       Bihar Consolidation of Holding and Prevention of Fragmentation Act, 1956 Section 35 -Revision application filed beyond the period of limitation - After hearing the consolidation cases, the Consolidation Officer keeping the. order reserved for one year and passing the antedated order without any notice - Respondents coming to know about the order in a subsequent proceeding and by that time, the office of the Consolidation Officer as well as the Deputy Director, Consolidation stopped functioning on account of the notification under Section 3 being cancelled for the area - Besides, no limitation has been provided under Section 35 as it is a original jurisdiction - Revision application was entertained by the Director considering all the facts. (Para 14)

       Constitution of India - Article 226 Applicability of principle of res judicata in maintainability of writ application - Three revision applications filed by the respondent which were decided by common order Present writ petition filed only against one revision application while against other two revision applications no writ application has been filed - The decision in other two writ petitions has reached finality and will operate as res judicata - Impugned order dues not suffer from any illegality as well as the writ application is barred by res judicata and dismissed. (Para 15)

       

Judgment

Mridula Mishra, J.

1. This application has been filed by the petitioner for quashing the order dated 29-6-2000/30-6-2000 passed by the Director, Consolidation, Patna in Revision case Nos. 368/95, 369/95 and 370/ 95 as three revision applications were allowed by the Director, Consolidation, by a common order (Annexure-7).

2. The order has been challenged by the petitioner on the ground that

(i) the revision application preferred by respondent Nos. 1 and 2 should not have been entertained by the Director, Consolidation, as the revision applications were preferred by them against the order passed by the Consolidation Officer without preferring any appeal. As such, the order is without jurisdiction.

(ii) the revisional order is without jurisdiction as it has been passed with respect to the property which is the subject-matter of First Appeal No. 504 of 1985 which is pending but on a wrong presumption that First Appeal No. 504 of 1985 is dismissed the revisional order has been passed.

(iii) the revisional authority failed to consider that the revisional applications were hopelessly time barred and without condoning the delay the revision applications were entertained.

3. The facts of the case have not been much pressed by the learned counsel for the petitioners as well as learned counsel for the respondents. Submissions have been advanced by the parties only on the point of law as well as on the point of jurisdiction even then relevant facts of the case are being mentioned. The petitioner is the substituted legal heir of Chandra Jyoti Devi and the subject-matter of the present application are the properties which were the properties described under Schedule-I, II & III in title suit No, 23 of 1972. The Title Partition suit No. 23/72 was filed in the Court of Sub-Judge-II, Chapra, by respondent No. 1 claiming for partition of his 1/4th share out of the properties detailed under Schedule-I, II, III of the plaint. Chandrajyoti Devi inherited these properties after the death of her husband Jagannath and his first wife Shyama Devi. Chandrajyoti Devi sold 1/4th share out of the properties Scheduled as I, II, III to the plaintiff for Rs. 4000.00 and both came in joint possession of the property according to their respective shares. During the pendency of the suit chandrajyoti Devi died and the petitioner was substituted in her place as defendant. The defendant in her written statement stated that the plaintiff did not acquire any right, title and possession over the disputed land on the basis of the sale deed as it was forged. Chandrajyoti Devi had never executed any sale deed or received any consideration money. She was a Pardanashin lady and her advocate Sheo Kumar Dwivedi took her signature by fraud and converted it into a sale deed in the name of his relative Raghunath Tiwary. Plaintiff did not acquire right, title and possession over the disputed land on the basis of this sale deed, as such, he is not entitled to get any relief. Some of the properties described under the Schedule of the plaint are situated in Deoria in Uttar Pradesh and some are situated in Bihar. Consolidation proceedings were initiated in the area where some of the suit properties are situated, as such, with respect to those properties the suit abated under Sec. 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act). For rest of the properties the suit proceeded and it was decreed in favour of the plaintiff holding that he is entitled to get 1/4th share in Schedule-II property. The plaintiff (respondent No. 1) filed an application u/s. 10(4) of the Act before the Consolidation Officer. Bijayapur, which were registered as Consolidation Case No. 735/1988, 108/1988 and 110/1988. The Consolidation Officer by a common order dated 15-4-1992 rejected the prayer of the applicant (respondent) holding that on the basis of sale deed no title has passed to the applicants and their claim of being in pos























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