SHAKTI NATH JHA Vs. STATE

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India has been preferred against the order dated 27.6.1998 as contained in Annexure -3 passed by the Sub Divisional Magistrate, Saharsa in Misc. Case No. 149/1998 and also the order dated 20.1.2000 (Annexure -4) passed by the 3rd Additional Sessions Judge, Saharsa in Cr. Revision No. 534 of 1998. The grievance of the petitioner is that the whole matter is in seisin of the civil court. There is no jurisdiction of the Executive Court to enter into any dispute regarding the measurement of the plot of land. Admittedly the petitioner alongwith others had filed Title Suit No. 35/1990 in the court of Munsif, Saharsa with a relief for declaration of their title over Plot No. 7369 measuring 1 Katha 10 Dhoors. The defendant of the suit contested and asserted that the disputed plot does not measure 1 Katha 10 Dhoors rather it measured 1 Katha 14 Dhoors. A pleader commissioner was appointed during the course of trial of the suit and on the basis of such Advocate Commissioners report and also by considering the case of both the parties the suit was decreed. Then an appeal was preferred by the defendant in Title Appeal No. 2 of 1996. The District Judge after hearing the appeal inter parties confirmed the judgment and decree passed by the Munsif. Then decree was put in execution being Execution Case No. 1 of 1996. While the execution process was going on for delivery of possession then the opposite party no. 2 filed a petition before the S.D.O. for demarcating the disputed plot no. 7369. The S.D.O. by the order passed at Annexure -3 allowed the prayer of the Opposite party No. 2 and asked for demarcating the plot. The petitioner raised objection that the S.D.O. had no authority to enter into the matter as the execution was there in the seisin of the civil court and after considering the cases of the parties the suit has been decreed and such decree has been maintained in the appeal also and then the execution process is continued. But the objection of the party had been turned up (sic). Then petitioner moved before the Sessions Judge in Cr. Rev. No. 534. of 1998 but by the order as contained in Annexure -4 the order of the S.D.O. had been upheld. Hence this petition under Article 227 of the Constitution of India. The contention of the petitioner is that the whole orders passed by the S.D.O. had been confirmed by the Sessions Judge are without jurisdiction. Practically this petition is in the form of a second revision which is barred under the Cr.P.C. but such sort of petition under Article 227 of the Constitution of India can be entertained if it could be shown that the courts below had acted without jurisdiction and that the order is perverse causing miscarriage of justice.

(2.) THE jurisdictional point was raised before the Courts below. The sessions Judge held that under the Revenue Laws prevailing in the State of Bihar the S.D.O. has got every power to entertain petition for demarcation and, as such, the S.D.O.s order cannot be said to be without jurisdiction. It is true that under the Revenue laws the S.D.O. has got jurisdiction for demarcation but here already a civil suit has been decided on the issue of demarcation itself as was raised from the side of the defendant in the suit. The land was surveyed by Advocate Commissioner appointed by the court and on the face of report of the Advocate Commissioner being accepted the suit was decreed. On appeal being preferred the same has also been dismissed. In that way the order of the Civil court remained final. In such sort of position even if the S.D.O. had got the authority under the Revenue laws for demarcation but he should have restrained himself from doing so when it had been brought to the notice that already the matter had been in seisin of the civil court. The order of the Civil Court and the decree passed therein is paramount and the same cannot be dislodged in any ground whatsoever by the revenue authorities rather the revenue authorities are bound by the decree of the civil court. In that way the orders passed by the courts below are definitely without jurisdiction on the face of it. In this case when notice was issued to the Opposite party No. 2 he did not appear for the reason best known to him. As per discussion above, the orders passed in Annexures -3 and 4 are hereby quashed.