Hari Charan Chaudhary and Another vs Amrika Chaudhary and Others

Mungeshwar Sahoo, J.—The defendants-respondents-appellants have filed this Second Appeal against the judgment and decree dated 30.01.1996 passed by the learned 7th Additional District Judge, Nalanda at Biharsharif in Title Appeal No. 49 of 1992 whereby the learned Lower Appellate Court allowed the appeal and thereby reversed the judgment and decree of the trial court dated 11.06.1992 passed by the learned Sub Judge II, Hilsa, Nalanda in Title Suit No. 95 of 1986. The plaintiffs-respondents herein filed the aforesaid title suit for declaration of title and confirmation of possession and in the alternative, for recovery of possession over the suit property on allegation that the land measuring 20 decimals was Gairmajarua Malik Parti land which was settled by the zamindar and a Hukumnama dated 15 Magh 1345 Fasli was granted in favour of the plaintiffs. The possession was also delivered. Thereafter, the plaintiff was regularly paying the rent to the ex-landlord. She constructed two rooms in the suit property. When zamindari vested, the ex-landlord submitted return in the name of the plaintiff and thereafter, the jamabandi was opened in the name of the plaintiffs and the plaintiff was paying the rent to the State of Bihar regularly against the grant of rent receipts. In new survey, purcha was issued in the name of the plaintiffs showing 3 new sub-plots. However, with respect to 6 decimals land, it was recorded wrongly in the name of Shyam Mali. The plaintiffs thereafter filed objection. When the consolidation operation started, the defendants got their names entered in the Certificate with respect to 10 decimals of land out of the plaintiffs land measuring 20 decimals. According to the plaintiffs, the Consolidation Officer namely Fagu Ram was son-in-law of the defendant, Hari Charan Chaudhary, therefore, the defendants got their names entered.

The defendants filed contesting written statement. They claimed also settlement from the ex-landlord in the year 1341 Fasli. According to the defendants, they after settlement, came in possession of the property and after vesting, they are coming in possession of the property. The settlement officer finding the defendants in possession of the property recorded their names and Certificate has been granted which is final. The plaintiffs never filed any appeal against the said order passed by the Consolidation Officer. In 145 Cr.P.C. proceeding, the defendant''s possession has been declared. The other allegations were denied.

The trial court dismissed the plaintiff''s suit relying on the Hukumnama produced by the defendants and the order passed by the Consolidation Officer, Exhibit D/1. The plaintiffs thereafter filed the title appeal before the Lower Appellate Court. The Lower Appellate Court held that the Hukumnama and the rent receipts produced by the defendants are created documents and no reliance can be placed. The rent receipts have been obtained during the pendency of the suit. The Lower Appellate Court also held that the Consolidation Officer is the son-in-law of Hari Charan Chaudhary and, therefore, he has passed the order in favour of his father-in-law. Accordingly, the Lower Appellate Court set aside the judgment and decree of the trial court and allowed the appeal.

On the date of admission of this appeal on 28.03.2000, the following substantial question of law was formulated:

Whether certificate of transfer granted u/s 15 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act is the conclusive proof of title which can be ignored by the authority concerned?

The learned counsel, Mr. Ram Suhawan Singh appearing on behalf of the appellants submitted that Civil Court has no jurisdiction to decide the question of title when the said matter has already been decided by the Consolidation Authority and the Certificate has been issued u/s 15 of the Consolidation of Holdings and Prevention of Fragmentation Act because Section 15 of the Act states that the Certificate shall be conclusive proof of the title of such Raiyat to such holding and he shall be liable for payment of such rent as may be specified in the Certificate. However, the Lower Appellate Court without considering this provision i.e. Section 15 of the Consolidation Act has decreed the plaintiffs suit thereby nullifying Certificate granted by the Consolidation Officer. According to the learned counsel, the Full Bench decision of Patna High Court in the case of Ramkrit Singh and Others Vs. The State of Bihar and Others, held that the Civil Court should pass the decree in terms of the order passed by the Consolidation Officer according to the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. Secondly, the learned counsel submitted that so far the order passed by the Consolidation Officer in favour of the appellants is concerned, it was never objected by the plaintiffs nor any appeal or revision was filed against the said order according to the provision contained in the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, therefore, that order become final. The learned counsel further submitted that the Lower Appellate Court without properly appreciating the evidences produced by the defendants and without meeting the reasonings of the trial court has reversed the finding of the trial court. The learned counsel submitted that the appellants are still in possession of the property in dispute.

On the other hand, the learned senior counsel, Mr. P.N. Shahi submitted that this question which has been formulated at the time of admission has already been answered by the another Full Bench decision of the Patna High Court in the case of Seikh Haidar Zan Vs. Md. Yusuf Ansari and Another, wherein the Full Bench decision has considered the decision relied upon by the learned counsel appearing on behalf of the appellants. According to the learned counsel, in view of this Full Bench decision, the Civil Court has got the jurisdiction to investigate the title even if the Certificate u/s 15 is granted in favour of a particular person because the Consolidation Officer under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act exercises a limited jurisdiction. Secondly, the learned counsel relying on the decision of the Hon''ble Supreme Court in the case of R. Viswanathan Vs. Rukn-Ul-Mulk Syed Abdul Wajid, submitted that since the son-in-law of the appellant, Hari Charan Chaudhary was the Consolidation Officer, he passed the order for granting Certificate in favour of the father-in-law, Hari Charan Chaudhary because Hari Charan Chaudhary has no son. Therefore, in fact, the Consolidation Officer has passed the order in his own favour. Therefore, the order passed by the Consolidation Officer is a nullity. The learned counsel further submitted that the other questions raised by the learned counsel for the appellants are not at all substantial question of law because the Lower Appellate Court while reversing the judgment of the trial court has considered the reasonings assigned by the trial court and thereafter has reversed the finding. Moreover, if the order passed by the Consolidation Officer itself is nullity, then there is no question of further investigation arises. According to the learned counsel, the Consolidation Officer who passed order was vitally interested in the subject matter of the suit and, therefore, he has passed the order in his favour. In such circumstances, it cannot be said that the Certificate granted u/s 15 of the Consolidation Act is final.

From perusal of the judgment of the Lower Appellate Court, it appears that Lower Appellate Court considered the fact that the trial court relied upon the Hukumnama produced by the appellants on the ground that the document is 30 years old. Thereafter, the Lower Appellate Court has assigned its own reasons for discarding the evidences produced by the defendants-appellants and then recorded the finding that the case of the plaintiffs has been proved on the basis of the oral as well as documentary evidences produced by the plaintiff i.e. Hukumnama, Exhibit 2, the rent receipts, Exhibit 1 series granted by the State of Bihar and the Chaukidari tax then recorded the finding that the plaintiffs have been able to prove that the land was settled by the ex-landlord in favour of the plaintiff and after vesting, the Jamabandi has been opened in the name of the plaintiffs and accordingly, rent receipts have been granted by the State of Bihar. Therefore, so far this question as to whether the land was settled by the ex-landlord in favour of the plaintiffs or in favour of the defendants is concerned, it is pure finding of fact.

So far the substantial question of law formulated is concerned, the Full Bench decision of the Patna High Court in the case of Seikh Haidar Zan vs. Md. Yusuf Ansari & anr. (supra) at paragraph 36 and 42 has held as follows:

Adverting back to section 15 of the Act, I have already pointed out above that the certificate thereunder is granted on the basis of register of lands prepared by the consolidation authorities on the basis of record of rights under the concerned tenancy law. Such register of land being "deemed record of rights" as laid down u/s 15, and the consolidation authorities being "deemed courts" of limited jurisdiction, I have grave doubts if the ''certificate'' can be said to be conclusive proof of title in the strict sense of the term.

It is obvious that the right to property is not creature of the Consolidation Act, or, for that matter, any Act. It is the common law right, which is enforceable under the ordinary or general law of the land. The Consolidation Act merely provides a machinery for consolidation of lands and determination of the rights for limited purpose. As stated above, subject to the ouster clause which a statute may contain-expressly or impliedly-suits of civil nature of all kinds are maintainable in the civil courts. In these premises, I am inclined to hold that the suits based on title challenging the correctness of the entry in the register of lands under the Consolidation Act are not barred in the civil courts. Thus, I am inclined to endorse the conclusions of the Division Bench in Hari Narayan Singh vs. State of Bihar (supra) on this point.

It may be mentioned here that this Full Bench decision has taken note of the Full Bench decision relied upon by the learned counsel for the appellants. In my opinion, therefore, the substantial question of law formulated in the Second Appeal has already been answered by a Full Bench decision i.e. a binding precedent. Therefore, it needs no further answer to the substantial question of law and this Full Bench decision clearly applied in the present case.

It is admitted fact that the Consolidation Officer who has passed the order in favour of the appellants is the son-in-law of the appellants.

In the case of R. Viswanathan Vs. Rukn-Ul-Mulk Syed Abdul Wajid, , the Hon''ble Supreme Court held that the rule of law about judicial conduct is as strict, as it is old. No Judge can be considered to be competent to hear a case in which he is directly or indirectly interested. A proved interest in a Judge not only disqualifies him but renders his judgment a nullity. In the present case at our hand, as has been stated above, the Consolidation Officer is directly interested in the subject matter of the suit. It is admitted fact that he is son-in-law of the appellant and that the appellant has no male issue. Therefore, the property will go to the son-in-law. In other words, the Consolidation Officer has passed the order in his own favour. The appellant is insisting to rely upon this order passed by the Consolidation Officer in his favour. Can the court of law will rely on this order on the basis of which the Certificate has been granted in favour of the appellant?

So far the other points raised by the learned counsel at the time of hearing of this Second Appeal are concerned, those are not substantial questions of law involved in this Second Appeal for hearing.

In view of my above discussion, the substantial question of law formulated at the time of admission is answered against the appellants and in favour of the respondents. In the result, this Second Appeal is dismissed with cost of Rs. 10,000 to be paid by the defendants-appellants to the plaintiffs-respondents within two months from today failing which the plaintiffs-respondents are at liberty to realize the same through the process of the court.