Patna High Court
Prem Kumar vs The State Of Bihar on 17 January, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No. 15565 of 2023
======================================================
1. Prem Kumar Son of Late Phunu Ram, Resident of Village- Chakand Station,
Panchayat- Naugarh, P.S.- Chakand, District- Gaya.
2. Niraj Kumar, Son of Late Mahesh Ram, Resident of Village- Chakand
Station, Panchayat- Naugarh, P.S.- Chakand, District- Gaya.
3. Pawan Kumar, Son of Late Lakhan Ram, Resident of Village- Chakand
Station, Panchayat- Naugarh, P.S.- Chakand, District- Gaya.
4. Yogendra Ram @ Yogendra Kumar, Son of Late Daroga Ram, Resident of
Village- Chakand Station, Panchayat- Naugarh, P.S.- Chakand, Dist.- Gaya.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Revenue
and Land Reforms, Patna
2. The Collector-cum-District Magistrate, Gaya.
3. The Circle Officer, Gaya Town, Gaya.
4. Onkar Kumar, Son of Ram Sarup Saw, Resident of Village- Chakand
Station, Panchayat- Chakand, District- Gaya.
5. Bhajan Yadav, Son of Late Gopalji Yadav, Resident of Village- Chakand
Station, Panchayat- Chakand, District- Gaya.
6. Mukesh, Son of Ram Chandra Yadav, Resident of Village- Chakand Station,
Panchayat- Chakand, District- Gaya.
7. Rajendra Prasad, Son of Late Ganesh Yadav, Resident of Village- Chakand
Station, Panchayat- Chakand, District- Gaya.
8. Sanjay Kumar, Son of Ganesh Saw, Resident of Village- Chakand Station,
Panchayat- Chakand, District- Gaya.
9. Dahu Mistri, Son of Late Keshwar Mistri, Resident of Tahi Bigha, P.S.
Chakand, District- Gaya.
10. Umesh Pd. Verma, Son of Late Bhola Prasad, Resident of Village- Chakand
Station, Panchayat- Chakand, District- Gaya.
11. Naresh Yadav, Son of Balgovind Yadav, Resident of Village- Salehpur, P.S.-
Salehpur, District- Gaya.
12. Manoj Yadav, Son of Virendra Yadav, Resident of Village- Chakand Station,
Panchayat- Chakand, District- Gaya.
... ... Respondent/s
======================================================
Appearance:
For the Petitioner/s : Mr. Basant Kumar Chaudhary, Sr. Advocate
Mr. Arvind Kumar, Advocate
For the State : Mr. Sajid Salim Khan, SC-25
Patna High Court CWJC No.15565 of 2023 dt.17-01-2025
2/9
Ms. Prakritita Sharma, AC to SC-25
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
CAV JUDGMENT
Date: 17-01-2025
The present writ petition has been filed for quashing the
order dt. 07.08.2023, passed by the Circle Officer, Gaya Town,
in connection with Encroachment Case No.11 of 2016-17
whereby 14 persons, including the petitioners have been
declared to be encroachers of public land. The petitioners have
also prayed for quashing the order dated 14.09.2023, passed in
Encroachment Appeal Case No.14 of 2023, by the District
Magistrate, Gaya, whereby and whereunder the appeal filed by
the petitioners against the order dated 07.08.2023, passed by the
Circle Officer, Gaya Town, in Encroachment Case No.11 of
2016-17, has been rejected and the Circle Officer, Gaya Town
has been directed to remove the encroachment in question.
2. The brief facts of the case, according to the petitioners are
that the petitioners are in possession of a piece of land
appertaining to Khata No.127, Plot No.266 (admeasuring 1232
sq. feet), Plot No.267 (admeasuring 4620 sq. feet), Plot No.267
(admeasuring 2750 sq. feet) and Plot No.302 (admeasuring 639
sq. feet), situated at village-Nawgarh, P.S.-Chakand, District-
Gaya. It is submitted that the ancestors of the petitioners used to
Patna High Court CWJC No.15565 of 2023 dt.17-01-2025
3/9
pay rent to Captain Maharaj Kumar Gopal Sharan Narayan
Singh Saheb Bahadur, who, by way of assignment through
registered deed of assignment dated 15.09.1940 became owner
of the land in question. It is also stated that the revisional survey
authorities had committed some errors, leading to the plot in
question being recorded as Anabad Bihar Sarkar.
3. The learned senior counsel for the petitioners has, at the
outset, submitted that the petitioners along with two other
persons have filed a title suit, bearing Title Suit No.129 of 2017,
which is pending adjudication before the learned Court of
Principal Sub-Judge-1st, Gaya for declaration of right, title and
possession of the petitioners over the land in question, in which
the petitioners have also filed a petition for grant of injunction,
thus, it is submitted that the petitioners should not be disturbed
of their possession over the land in question, till the final
outcome of the aforesaid title suit, filed by the petitioners.
Reference in this connection has been made to a judgment
rendered by a co-ordinate Bench of this Court in the case of
Nagendra Mistry vs. State of Bihar & Ors., reported in 2000
(1) PLJR 209, as also upon the one rendered by a co-ordinate
Bench of this Court in the case of Md. Jamalluddin & Ors.
vs. the State of Bihar & Ors. reported in 2010 (2) PLJR 518.
Patna High Court CWJC No.15565 of 2023 dt.17-01-2025
4/9
4. Per contra, the learned counsel for the respondent-State
has submitted, by referring to the counter affidavit filed in the
present case, that in the Revisional Survey record of rights, the
aforesaid land in question stands recorded as 'Anabad Sarb
Sadharan" and in the said records, neither the name of the
petitioners nor their ancestors are recorded, showing them to be
in possession of the land in question. It is further submitted that
on the basis of the report submitted by the Anchal Amin,
encroachment proceedings were initiated by the Circle Officer,
Gaya Town, Gaya, vide Encroachment Case No.11 of 2016-17,
whereafter notices under Section 3(1) of the Bihar Public Land
Encroachment Act, 1956 (hereinafter referred to as the 'Act,
1956') were issued to the petitioners and others whereupon spot
inspection was made by the Circle Officer, Gaya Town along
with Halka Karmchari and Anchal Amin, as also the encroachers
were directed to produce documents, if any, to show their right,
title and interest over the land in question, by filing their show-
cause. However, the petitioners, instead filed a copy of the
plaint of the aforesaid Title Suit No.129 of 2017, pending before
the learned Court of Sub-Judge-I, Gaya, but did not produce any
order of injunction, hence the Circle Officer, Gaya Town had
passed the final order under Section 6(1) of the Act, 1956 on
Patna High Court CWJC No.15565 of 2023 dt.17-01-2025
5/9
07.08.2023
, whereafter notices were issued to the encroachers
including the petitioners under Section 6(2) of the Act, 1956, but
in the meantime, the encroachers had challenged the said order
dated 07.08.2023 by filing an appeal, however, the said appeal
bearing Encroachment Appeal Case No.14 of 2023 has been
dismissed by the District Magistrate, Gaya by an order dated
14.09.2023, whereafter a date had been fixed for removal of the
encroachment in question. It is contended that as far as
Jamabandi No.04/3, running in the name of one Santoshi Devi,
with regard to land appertaining to Khata No.127, Plot No.266
(admeasuring 1.26 acres) is concerned, recommendation has
been made for cancellation of the same.
5. I have heard the learned senior counsel for the petitioners
as also the learned counsel for the respondents and this Court
finds that the petitioners have prima facie failed to show any
document from the records to satisfy this Court with regard to
their right, title and interest over the land in question and have
merely stated that they have filed a tile suit bearing Title Suit
No.129 of 2017, which is pending adjudication before the
learned Court of Principal Sub-Judge-I, Gaya. In fact, the
petitioners have also failed to show that their names/their
ancestors’ names stand recorded in the record of rights against
Patna High Court CWJC No.15565 of 2023 dt.17-01-2025
6/9
the entry made of the aforesaid plots in question. As far as
reliance on rent receipt is concerned, it is a well settled law that
mere issuance of rent receipts cannot create title to the land and
can neither prove title nor possession with respect to the land in
question. In this regard, reference be had to a judgment dated
15.12.2015, passed by the learned Division Bench of this Court
in LPA No. 34 of 2015 (State of Bihar & Ors. vs.
Chandrabanshi Singh) as also to a judgment dated 5.10.2005,
rendered by a co-ordinate Bench of this Court, in the case of
Tripathy Kiran Nath Sharma vs. State of Bi har, reported in
(2005) 4 PLJR 670. It would be gainful to refer to a recent
judgment dt. 10.05.2024, rendered by the Ld. Division Bench of
this Court, in the case of S. M. Ehteshamul Hasan Rehmani vs.
The State of Bihar & Ors. (LPA No. 1106 of 2023 & analogous
case), paragraph no.19 whereof is reproduced herein below:-
“19. It is well settled that acceptance of rent by the State
Government or issuing rent receipt does not create a title
over the land. Thus, the claim of the appellants based on
rent receipts does not make the case of the appellants
better. Moreover, there is no estoppel against law. The
State is not bound by the acts of its officers, if the same
has been done by them outside their authority or power of
the public authority to make it. Any action done
unauthorizedly and without jurisdiction does not bind the
Patna High Court CWJC No.15565 of 2023 dt.17-01-2025
7/9State Government, is well settled law.”
6. It is equally a well settled law that entry made in the
khatiyan neither creates any right nor extinguishes any title.
Reference in this connection be had to a judgment rendered by
the learned Division Bench of this Court in the case of
Ahmadulah Zafar Hasan vs. State of Bihar & Ors., reported in
2021 (2) PLJR 206, paragraph no.6 whereof is reproduced
herein below:-
“6. It is settled proposition of law that entry made in
Khatiyan neither creates any title nor extinguishes any
title, as such, the learned Single Judge has rightly
observed appellant to take recourse to Civil Court of
competent jurisdiction for declaration of his right, title
and possession over the land in dispute.”
7. Another aspect of the matter is that the petitioners cannot
be permitted to pursue two parallel remedies in respect of the
same matter at the same time. Reference in this connection be
had to the following judgments rendered by the Hon’ble Apex
Court :-
(i) Judgment rendered by the Hon’ble Apex Court in the
case of Jai Singh vs. Union of India & Ors., reported in
(1977) 1 SCC1;
(ii) Judgment rendered by the Hon’ble Apex Court in the
Patna High Court CWJC No.15565 of 2023 dt.17-01-2025
8/9case of Delhi Gate Auto Service Station and Ors. vs.
Bharat Petroleum Corporation Limited, Agra & Ors.,
reported in (2009) 16 SCC 766; and
(iii) Judgment rendered by the Hon’ble Apex Court in the
case of Satya Pal Anand vs. State of Madhya Pradesh &
Ors., reported in (2016) 10 SCC 767.
8. Now coming back to the present case, admittedly the
petitioners have filed a title suit before the learned Trial Court
with regard to declaration of their right, title and possession
over the land in question, in relation to which the petitioners
have been held to be encroachers by the Circle Officer, Gaya
Town, by an order dated 07.08.2023 passed in Encroachment
Case No.11 of 2016-17, which has also been upheld by the
District Magistrate, Gaya, by an order dated 14.09.2023, passed
in Encroachment Appeal Case No.14 of 2023, hence the issue
raised in the present writ petition ought to have been raised in
the aforesaid suit, thus the present writ petition is wholly
misconceived.
9. Now adverting to the judgments referred to by the learned
senior counsel for the petitioners, rendered in the cases of
Nagendra Mistry (supra) and Md. Jamalluddin (supra), this
Court finds that the same are not applicable in the facts and
Patna High Court CWJC No.15565 of 2023 dt.17-01-2025
9/9
circumstances of the present case, inasmuch as the petitioners
have already approached the learned Civil Court of competent
jurisdiction by filing a title suit and secondly, the petitioners
have not produced any document much less any cogent proof to
prove their right, title and interest over the land in question.
10. Having regard to the facts and circumstances of the case
and for the foregoing reasons, I do not find any merit in the
present writ petition, hence the same stands dismissed, however,
with a caveat that such petitioners, in whose favor Jamabandi is
existing shall not be disturbed of their possession over the land
in question, till the time Jamabandi is cancelled. Nonetheless,
this Court directs that status quo, existing as on today, qua the
land/houses of the petitioners in question, shall be maintained
for a period of six weeks from today, in order to enable the
petitioners to obtain an order granting injunction, from the Ld.
Trial Court, in the aforesaid pending suit.
(Mohit Kumar Shah, J)
kanchan/-
AFR/NAFR AFR CAV DATE 12.11.2024 Uploading Date 17.01.2025 Transmission Date NA
[ad_1]
Source link