GOVIND YADAV Vs. DEOKI DEVI
LAWS(PAT)-1979-4-1
HIGH COURT OF PATNA
Decided on April 03,1979

GOVIND YADAV Appellant
VERSUS
DEOKI DEVI Respondents


Referred Judgements :-

FIRE INSURANCE CO. V. KAVANAGH [REFERRED TO]
MT. NANHA V. MT. KHUBSURAT [REFERRED TO]
NIRANJAN AGRAWALLA V. UNION OF INDIA [REFERRED TO]
MIR MOHAMMAD SIDDIQUE V. KESHWAR SINGH [REFERRED TO]
KHUB LAL UPADHYA V. JAGDISH PRASAD SINGH [REFERRED TO]
YESHWANT DEORAO VS. WALCHAND RAMCHAND [REFERRED TO]
MANEKA GANDHI VS. UNION OF INDIA [REFERRED TO]
AWADH BIHAR PRASAD VS. RAMJI MAHTON [REFERRED TO]
RAJU ROY VS. KASINATH ROY [REFERRED TO]
SRIBHAGWAN SINGH VS. RAMBASI KUER [REFERRED TO]
KUTHALI MOOTHAVAR VS. PERINGATI KUNHARANKUTTY [REFERRED TO]



Cited Judgements :-

SHABBIR SHERIFF VS. PASHA BEGUM [LAWS(APH)-2008-9-126] [REFERRED TO]
G K PALANI GOUNDER ALIAS MANI VS. KANAKAMBAL [LAWS(MAD)-2008-8-135] [REFERRED TO]
DANDAPANI NAIK VS. STATE OF ORISSA [LAWS(ORI)-1986-7-17] [REFERRED TO]
RAJKISHORE SATPATHY VS. HAREKRUSHNA SATPATHY [LAWS(ORI)-1995-8-21] [REFERRED TO]
KALYAN SAHAY VS. MADAN LAL [LAWS(RAJ)-1985-4-25] [REFERRED TO]
VIJAY BHAWAR AND ORS. VS. AJAIB SINGH [LAWS(P&H)-2014-12-191] [REFERRED TO]
NARASINGHA SATAPATHY VS. STATE OF ORISSA AND ANOTHER [LAWS(ORI)-2017-8-61] [REFERRED TO]


JUDGEMENT

Shivanugrah Narain, J. - (1.)This appeal by defendants 1 and 2 arises out of a judgment and decree of the 4th Additional District Judge, Monghyr by which the learned Additional District Judge has reversed the judgment and decree of the trial Court and decreed the suit brought by the respondents in this Court for declaration of title to, and recovery of possession over 7.5 acres equal to 8 bighas, 11 kathas 17 dhurs of land comprised in survey Plot No. 491 of Khata No. 676 of village Hathband in the District of Monghyr fully described in Schedule III to the plaint of the suit out of which this appeal arises.
(2.)The aforesaid Survey Plot No. 491 is a very large plot of land and admittedly 20 bighas, 17 khatas 19 dhurs specified in Schedule II to the plaint out of the aforesaid Survey Plot No. 491 was sold to the original plaintiff No. 1 Keshav Yadav under a registered sale deed dated 30-5-1940 executed by one Gopi Nath Bose who had purchased Khata No. 676 at an auction sale in execution of a decree for arrears of rent obtained against the recorded tenants. Keshav Yadav was mutated in the landlord's 'sherista' and admittedly was in possession of the aforesaid 20 bighas 17 khatas and 19 dhurs of land till 1936 in which year the Court of Wards which was incharge of the Bahadurpur Estate, within which the holding of Keshav Yadav was comprised, got the entire holding of Keshav Yadav detailed in Schedule II of the plaint auction sold in execution of a certificate obtained against Keshav Yadav for arrears of rent of those lands. Keshav Yadav, thereupon filed a petition before the Collector for restoration of the holding aforesaid. This application was filed under Section 3 (1) of the Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act, 1938 (hereinafter referred to as the 'Act'). Section 3 (1) of the Act provides :
"A raiyat, whose holding or a portion of whose holding was sold at any time between the first day of Jan., 1929, and the 31st day of Dec., 1937, in execution of a decree for arrears of rent and was purchased by the landlord of such holding and is in the possession or under the control of the said landlord, may make an application to the Collector for the restoration to him of such holding or portion."
The landlord, i.e. the Court of Wards representing the Bahadurpur Estate, objected to the application on the ground that the aforesaid holding was no longer in possession of the landlord but was in possession of the defendants with whom it had settled the lands by 'Hukumnama' (Ext. A) dated 17-6-1938. No notice of the proceeding before the Collector appears to have been given to the defendants or the members of the family in whose name the 'Hukumnama' had been granted. The learned Collector under the Act by his order dated 21-6-1940 (Ext, '7') rejected the objection raised by the landlord on the ground that the settlement in favour of third party was made after the 22nd day of Mar., 1938.
(3.)I should state at this stage that Section 6 of the Act specifies the grounds on which the landlord may object to the application for restoration of the raiyat under Section 3 (1) of the Act, The relevant ground is contained in Section 6 (1) (d) of the Act which runs as follows:--
"That the holding mentioned in the application or any portion thereof is in the possession of a third person, and that such third person is in possession of the holding or such portion on his own behalf or on behalf of some person other than the landlord under a settlement which, in the case of a holding or portion of a holding sold before the first day of Jan., 1937, was made in good faith by such landlord before the 22nd day of March, 1938, or which, in the case of a holding or portion of a holding sold between the first day of Jan., 1937, and the 31st day of Dec., 1937, was made in good faith by such landlord before the 19th day of April, 1938."
Section 6 (2) provides that upon the filing of an objection the Collector shall make such enquiry as he thinks fit and empowers the Collector to reject the application for restoration if he decides that the facts specified in either of the four clauses to Sub-section (2) of Section 6, namely, Clauses (a) to (d) exist. Clause (d) of Sub-section (2) of Section 6 provides that if the Collector finds.
"(d) that such third person is to possession on his own behalf or on behalf of some person other than the landlord under a settlement mentioned in Clause (d) of Sub-section (1) -- (i) of the entire holding or portion sold, he shall dismiss the application? (ii) of a part of such holding or portion, he shall reject the application in so far as it relates to such part, and order that the application shall proceed with respect to the remaining part of the holding or portion; Provided that no order under this clause shall be made unless the Collector has given notice of the application to such third person."
The Collector, as I have already stated, rejected the objection filed by the land- lord on the ground that the settlement of the third person had been made subsequent to the 22nd day of March 1938. He, however, was of the opinion that regard being had to the facts of the case, the raiyat was entitled to be restored only to a portion of the holding sold, and acting under the provisions of Section 9 (2) of the Act which empowers the Collector to restore possession of part of the holding if the area of the holding was more than 6 acres directed by his order dated 21-6-40 (Ext. '7') that the raiyat shall be entitled to be restored to the possession of 7.5 acres of land from the South, Thereafter it appears that Keshav Yadav applied for a writ of delivery of possession and, according to the service report of the peon, possession was delivered to Keshav Yadav on 28-12-1940. Later, there were proceedings under Section 144, Cr. P. C, and ultimately a proceeding under Section 145, Cr. P. C. between one of the plaintiffs and the defendant first party in respect of the aforesaid lands which are described in Schedule III to the plaint and the learned Magistrate by his order dated 15-9-1965 declared the possession of the defendant first party over the said lands, Thereafter, on 1-8-1966, the present suit was instituted by the respondents-plaintiffs,


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