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Judgment
Heard Mr. Anil Kumar, Senior counsel assisted by Ms. Chandana Kumari, counsel appearing for the petitioner.
Heard Mr. A. K. Sahani, counsel assisted by Mr. Ajit Kumar, counsel appearing on behalf of the respondent nos.5 & 6.
Heard Mr. Kumar Rahul Kamlesh, counsel appearing on behalf of the respondent nos.1 to 4.
This writ petition has been filed for the following reliefs: “For quashing the order dated 20.07.2007, passed by respondent no.3 in Mutation
Appeal No.2 of 2006-07 as also the order dated 07.12.2007, passed by respondent no.2 in M.R.N. 5 of 2007, whereby and whereunder, the mutation
order, passed by respondent no.4 in favour of the petitioner, has been set aside and the same has been directed to be made in favour of the private
respondents, which according to the petitioner is illegal and perverse.â€
Counsel for the petitioner submits that the instant case relates to Khata No.155, 156 and 157 of village- Dumraon, Police Station- Ichak, District-
Hazaribagh between petitioner namely Anil Prasad Mehta (legal heir of late Laxaman Mahto) and Bengali Mahto & Shivnath Mahto (legal heirs of
late Lilo Mahto) who are respondent nos. 5 and 6 in this case. It is submitted that in the year, 1920 a partition suit was filed which was decided on
10.05.1921. The preliminary decree was prepared on the basis of the compromise between the parties. According to the compromise, 9 Annas share
came to Laxaman Mahto i.e. ancestors of Anil Prasad Mehta and 7 Annas share came to Lilo Mahto i.e. ancestors of respondent nos.5 and 6
herein.Â
Thereafter, in the year, 1931 Lilo Mahto filed a petition deviating himself from the compromise. Thereupon, the learned Munsif passed an order
dated 07.04.1931 of equal share each i.e. 8 Annas share each to Laxaman Mahto and Lilo Mahto. Against this order of learned Munsif, an appeal
being Miscellaneous Appeal No.25 of 1931 was filed by Laxaman Mahto which was allowed on 15.08.1932 by setting-aside the order of Munsif dated
07.04.1931. This order dated 15.08.1932 became final and thereafter, the final decree was prepared by the learned Munsif on 09.09.1932 according to
which separate Takhtas were allotted to the parties.Â
Counsel for the petitioner submits that the final decree which was prepared in the case is at Annexure-3 of the writ petition . However, in the
operative portion of the final decree it has been recorded that “ it is ordered that the suit be decreed finally in terms of the partition deed and final
decree be prepared accordinglyâ€, although this document itself is the final decree. Counsel for the petitioner submits that as the parties were
already in possession of the property as per the partition deed, there was no requirement of filing any execution case and accordingly, no execution
case was filed.Â
It is submitted that the respective shares of the properties were in possession of the respective parties and the respective parties also sold some
of the portions of the property which was allotted to them. However, the petitioner filed a petition before Circle Officer, Ichak for issuance of rent
receipts with respect to the lands of Khata Nos.155, 156 and 157. The Halka Karmachari in his report mentioned that in survey Khatiyan of village
Dumraon, lands of Khata Nos.155, 156 and 157 are in the name of Laxaman Mahto and Lilo Mahto. Considering the facts and circumstances of
this case the Circle Officer, Ichak vide order dated 15.05.2006 allowed the application filed by the applicant and directed for issuance of rent receipts
separately with respect to 9 Annas share to the successor of Laxaman Mahto in each plot of land and 7 Annas share in each plot of land in favour of
successors of Lilo Mahto. Against the said order   dated 15.05.2006, petition was filed by Bengali Mahto successor of Lilo Mahto which was
numbered as Mutation Appeal No.2 of 2006-07 and the order passed by Circle Officer, Ichak was setaside by Land Reforms Deputy Collector,
Hazaribagh vide order dated 20.07.2007.Â
Further, Against the said appellate order dated 20.07.2007, petitioner filed a revision case being Mutation Revision No.05 of 2007 before the
Additional Collector, Hazaribagh and the Additional Collector, Hazaribagh vide order dated 07.12.2007 confirmed the order passed by the appellate
authority. Thereafter, another revision case was filed against the order of the Additional Collector, Hazaribagh before the Commissioner, North
Chhotanagpur Division who again rejected the 2nd Revision by order dated 19.02.2008 as not maintainable.Â
Counsel for the petitioner submits that the order passed by the Commissioner, North Chhotanagpur Division, Hazaribagh, whereby the 2nd
Revision was rejected as not maintainable is correct and he is not assailing that order. However, he submits that order of the appellate
authority     dated 20.07.2007 as well as the order of the revisional authority dated 07.12.2007 are under challenge in this writ proceeding.Â
Counsel for the petitioner further argued that in the order passed by the appellate authority in Miscellaneous Appeal No.25 of 1931 dated
15.08.1932, it has been recorded as under: “In my opinion the appeal must succeed on the ground that the partition of 1921 was affected by a
perfectly lawful agreement. The fact that one of the so called arbitrators has not put his thumb impression on the award is immaterial. These
arbitrators are described in the award itself as mere witnesses. The matter indeed appears to have been settled in the presence of a sort of cast
panchait. I can see no good reason why the whole partition should be reopened after the lapse of 10 years.â€
Counsel for the petitioner submits that thereafter, a direction was issued for preparation of final decree. He further submits that it is apparent from
the appellate order itself that the partition was duly affected and thereafter the final decree was prepared and accordingly, the parties were already in
possession of the respective shares. There was no occasion for the petitioner or his predecessors to file any execution case and therefore, the
execution case was not filed. He refers to the provision of Section 5 of Bihar Tenant’s Holdings (Maintenance of Records) Act, 1973 and
submits that it is the duty of the civil court to inform the Circle Officer regarding delivery of possession inter alia in the matter of partition. Section 5Â
of Bihar Tenant’s Holdings (Maintenance of Records) Act, 1973 reads as under:Â
 “5. Civil Courts to give notice of delivery of possession to the decree-holder or auction purchaser or of decree for partition or for foreclosure to
the Anchal Adhikari- When under the Code of Civil Procedure, 1908 (Act 5 of 1908) possession of a holding or part thereof has been delivered in
execution of a decree to the decree-holder or to a purchaser at Court auction sale or when a final decree for partition or for foreclosure of a mortgage
has been passed the Court executing the decree or the Court passing the final decree for partition or foreclosure, as the case may be, shall give
notice of the fact in the prescribed form to the Anchal Adhikari of the area in whose jurisdiction the land is situatedâ€
Counsel for the petitioner submits that once a final decree was prepared and there was no occasion for filing any execution case as the parties
were already in possession of their respective shares, the final decree ought to have been communicated by the Civil Court to the Circle Officer for
the purposes of mutation, but, in the instant case, for one reason or the other which is not known to the petitioner, the final decree was not
communicated to the Circle Officer and accordingly, after a lapse of time the application was filed by the petitioner before the Circle Officer for the
purposes of mutation. He submits that the appellate authority has passed the impugned order dated 20.07.2007 and has allowed the appeal on the
ground that the steps for mutation was taken by the petitioner after lapse of 75 years and this reason which has been given by the appellate authority
has been confirmed by the revisional authority as well.Â
Counsel for the private respondents, on the other hand submits that the genealogy of the entire family has been given in paragraph no.10 of the
writ petition and the petitioner namely, Anil Prasad Mehta is not representing all the legal heirs of late Laxaman Mahto and accordingly, the property
of 9 Annas cannot be mutated entirely in the name of the petitioner and he also submits that the share at best can be allotted as per the final decree.Â
The counsel for the respondent submits that there was inordinate delay on the part of the petitioner or his predecessor to move the Circle Officer
for the purposes of mutation and he submits that the petitioner having moved the Circle Officer after lapse of 75 years, the impugned order has been
rightly passed by the authorities. However, the counsel for the respondent could not dispute the findings which have been recorded by the appellate
authority in the judgment dated 15.08.1932 passed in Miscellaneous Appeal No.25 of 1931 that the parties had already acted upon the partition
which was entered into between the parties.Â
After hearing the counsel for the parties and after going through the materials on record, this Court is inclined to allow the writ petition to the
extent that the final decree which was prepared by the competent Court as back as on 09.09.1932 has to be given effect to by the Circle Officer by
mutating the land in terms of the final decree. From the records of the case it appears that it is an admitted fact that the judgment dated 15.08.1932
wherein the share and possession of the parties to the extent of 9 Annas and 7 Annas as per the partition arrived at between the parties was duly
recorded and there was a direction for issuance of final decree in terms of the appellate order. Thereafter, the final decree was prepared and it
appears that as parties were already in possession of their respective shares, there was no occasion for the petitioner or his predecessors to file any
execution case. Therefore, the shares which was mentioned in the final decree was already in possession of the concerned parties and accordingly,
the learned Civil Court ought to have forwarded the final decree to the Circle Officer for the purposes of mutation. But this was not done for the
reasons which are not on records of the case. However, the fact remains that the final decree and the possession which was already there between
the parties was not communicated to the Circle Officer and accordingly, the mutation was not carried out pursuant to the final decree inspite of
specific provision under Section 5 of Bihar Tenant’s Holdings (Maintenance of Records) Act, 1973. Therefore, it cannot be said that there
was any fault on the part of the petitioner or his predecessor for not having moved the Circle Officer for 75 years. Rather, as per the provisions of
Section 5 of Bihar Tenant’s Holdings (Maintenance of Records) Act, 1973, the mutation ought to have been done automatically in terms of the
final decree as the possession was already there with the respective parties and there was no occasion to file any execution case.
Considering the submission which has been made by the respondent that the petitioner cannot represent the entire share of Late Laxaman Mahto,
this Court is of the view that certainly entire property of 9 Annas cannot be mutated in favour of the petitioner and therefore, the Circle Officer will
first carry out the mutation in terms of the final decree which has been prepared as back as on 09.09.1932 and thereafter, the consequences shall
follow.Â
Considering the facts and circumstances of this case, the writ petition is allowed with a direction to the Circle Officer, Ichak to carry out the
final mutation in terms of the final decree which has been prepared as back as on 09.09.1932 and is contained in Annexure-3 to this writ petition
within a period of three months from the date of receipt of a copy of this order. 19. The impugned orders dated 20.07.2007 passed by the appellate
Authority and dated 07.12.2007 passed by the Revisional authority are accordingly set-aside.
20. The writ petition is allowed with the aforesaid observations and directions.  Â
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