Raheemduddin Vs. State of Bihar & Ors.
EmailAppeal: Civil Appeal No.649 of 1994
(Arising out of S.L.P. (C) No.7068 of 1990)
(Arising out of S.L.P. (C) No.7068 of 1990)
Petitioner: Raheemduddin
Respondent: State of Bihar & Ors.
Apeal: Civil Appeal No.649 of 1994
(Arising out of S.L.P. (C) No.7068 of 1990)
(Arising out of S.L.P. (C) No.7068 of 1990)
Judges: K. RAMASWAMY & B.L. HANSARIA, JJ.
Date of Judgment: Jan 17, 1994
Head Note:
LAND AND TENANCY LAWS
Bihar Privileged Persons Homestead Tenancy Act, 1947 :
Bihar Privileged Persons Homestead Tenancy Act, 1947 :
Sections 2(i) and 18 – Appellant, a privileged tenant – Collector by order dated June 14, 1983, granted parcha to the appellant as a privileged tenant – Respondent purchased the property along with other lands on August 23, 1984 and thereafter filed the suit but allowed the suit to be dismissed for non-prosecution on February 23, 1989 – Held that having allowed the dismissal of the suit to become final, it was not open to him to approach the authorities to have the same order set aside – Appeal allowed.
JUDGEMENT:
O R D E R
1. Leave granted.
2. Heard counsel for the parties. Admittedly, the appellant made an application for grant of parcha in respect of 14 decimals of land in Khata No.401. Khasra No.366 situated in Village Hussain Ganj, District Siwan in the State of Bihar. After making an enquiry Ilaka Karamchari in his report dated March 7, 1983 stated that the appellant has no other residential house in that village; he is landless person and he is in possession and enjoyment of the house for over 8 to 10 years. He has also stated that the ryot died issueless. On the basis thereof, a further enquiry was made by the Tehsil Officer and by report dated June 14, 1983, he stated that he made personal local inspection and found that the appellant is in possession of the house and he is not in possession of any other house, he is landless person though he is in occupation of 14 decimals of land, but under the rules he is entitled only to 12 decimals of land as homestead. On the basis thereof, the Collector by order dated June 14, 1983, granted parcha to the appellant as a privileged tenant. The contesting respondent purchased this property along with other lands on August 23, 1984 and thereafter he filed T.S.No.72 of 1985 on the file of the Ist Munsiff, Siwan. He allowed the suit to be dismissed for non-prosecution on February 23, 1989. He pursued with the lower authorities and by order dated June 21, 1988, the Circle Office cancelled the parcha granted to the appellant. When he challenged in the writ petition, the High Court of Patna dismissed the same in the impugned order of September 29, 1989 in C.W.J.C. No.4704 of 1989. Thus this appeal by special leave.
3. From the facts it is clear that the appellant is a privileged tenant under section 2(i).
4. Section 18 of the Bihar Privileged Persons Homestead Tenancy Act, 1947 provides thus:
“All orders passed by the Collector in any proceedings under the Act shall be final and no suit shall lie in any civil court to vary or set aside any such order except on the ground of fraud or want of jurisdiction.”
5. One Sk.Jakarian was the original owner through whom the appellant had come into possession of the land for homestead. Admittedly, Sk. Jakarian died. Shakila Khatun is said to be the non-resident grand daughter of Sk. Jakarian from whom the contesting respondent purchased the lands belonging to Sk. Jakarian including the land in question. In the suit, it was alleged that the appellant suppressed that Sk. Jakarian left behind him his legal representative by playing fraud and obtained parcha (patta). Having allowed the dismissal of the suit to become final, it is not open to him to approach the authorities to have the same order set aside. The authorities did not keep this aspect in mind in passing the order. The High Court, therefore, has committed manifest error of law in not looking into this aspect of the matter and deciding on merits in this behalf.
6. The appeal is accordingly allowed. The impugned order of the Circle Office is set aside and the order of the Collector dated June 14, 1983 is restored. But in the circumstances, the parties are directed to bear their own costs.
1. Leave granted.
2. Heard counsel for the parties. Admittedly, the appellant made an application for grant of parcha in respect of 14 decimals of land in Khata No.401. Khasra No.366 situated in Village Hussain Ganj, District Siwan in the State of Bihar. After making an enquiry Ilaka Karamchari in his report dated March 7, 1983 stated that the appellant has no other residential house in that village; he is landless person and he is in possession and enjoyment of the house for over 8 to 10 years. He has also stated that the ryot died issueless. On the basis thereof, a further enquiry was made by the Tehsil Officer and by report dated June 14, 1983, he stated that he made personal local inspection and found that the appellant is in possession of the house and he is not in possession of any other house, he is landless person though he is in occupation of 14 decimals of land, but under the rules he is entitled only to 12 decimals of land as homestead. On the basis thereof, the Collector by order dated June 14, 1983, granted parcha to the appellant as a privileged tenant. The contesting respondent purchased this property along with other lands on August 23, 1984 and thereafter he filed T.S.No.72 of 1985 on the file of the Ist Munsiff, Siwan. He allowed the suit to be dismissed for non-prosecution on February 23, 1989. He pursued with the lower authorities and by order dated June 21, 1988, the Circle Office cancelled the parcha granted to the appellant. When he challenged in the writ petition, the High Court of Patna dismissed the same in the impugned order of September 29, 1989 in C.W.J.C. No.4704 of 1989. Thus this appeal by special leave.
3. From the facts it is clear that the appellant is a privileged tenant under section 2(i).
4. Section 18 of the Bihar Privileged Persons Homestead Tenancy Act, 1947 provides thus:
“All orders passed by the Collector in any proceedings under the Act shall be final and no suit shall lie in any civil court to vary or set aside any such order except on the ground of fraud or want of jurisdiction.”
5. One Sk.Jakarian was the original owner through whom the appellant had come into possession of the land for homestead. Admittedly, Sk. Jakarian died. Shakila Khatun is said to be the non-resident grand daughter of Sk. Jakarian from whom the contesting respondent purchased the lands belonging to Sk. Jakarian including the land in question. In the suit, it was alleged that the appellant suppressed that Sk. Jakarian left behind him his legal representative by playing fraud and obtained parcha (patta). Having allowed the dismissal of the suit to become final, it is not open to him to approach the authorities to have the same order set aside. The authorities did not keep this aspect in mind in passing the order. The High Court, therefore, has committed manifest error of law in not looking into this aspect of the matter and deciding on merits in this behalf.
6. The appeal is accordingly allowed. The impugned order of the Circle Office is set aside and the order of the Collector dated June 14, 1983 is restored. But in the circumstances, the parties are directed to bear their own costs.
