M.Y.EQBAL, J. - (1.) IN this writ application the petitioner has prayed for quashing the entire proceeding and the order dater 23 -7 -94 passed in Miscellaneous Case No. 40/ 1993 -94 whereby the respondent no. 2 Deputy Commissioner, Garhwa purported to have accorded sanction for cancellation of Jamabandi running in the name of the petitioners and their vendor on the objection raised by respondent no. 7 now deceased. A copy of the order sheet of the Miscellaneous case has been annexed as Annexure 10 to the writ application. Malindo Marandi Versus State Of Bihar
(2.) MR . N.N. Tiwary, learned senior counsel appearing for the petitioner assailed the impugned order and the entire proceeding as being wholly illegal, arbitrary, malafide and without jurisdiction. Learned counsel submitted that Jamabandi once opened in pursuance of a judicial proceeding and became final, the same cannot be cancelled in a subsequent proceeding, the entire proceeding and the impugned order is hopelessly barred by the principle of res judicata and the respondent have committed serious error of law in according sanction for cancellation of Jamabandi created in the name of the vendor of the petitioners and subsequently in the name of the petitioners. The land which are involved in the proceeding of the miscellaneous case no. 40/1993 -94 comprise within several plots of Khata no. 255 of village Nagaruntari and Khata no. 9 of Bahaiyari measuring an area of 3.16 acres. The admitted facts are that the land were recorded as Gair Mazarua Malik in the record of rights prepared in the year 1914 in the name of exlandlord Bhaiya Raj Kishore Deo. On his death the entire properties including the said land were inherited by his son Bhaiya Rudar Pratap Deo. The petitioner 'scase is that the Ex - landlord by virtue of deed of settlement dated 26 -6 -45 settled the land in favour of Ram Kewal Sahu. The settlee Ram Kewal Sahu continuously paid rent to the Ex -landlord till the date of enforcement of Bihar Land Reforms Act. It is contended that the Ex -landlord submitted his return before the competent authority in the year 1952 and in that return Ram Kewal Sahu was shown as settlee in respect of the land in question. In or about 1966 Ram Kewal Sahu made an application for mutation of his name and opening of Jamabandi and the same was allowed after full - fledged inquiry and Jamabandi was opened in the name of Ram Kewal Sahu. In the year 1968 Ram Kewal Sahu sold the land in question in favour of Madan Prasad and petitioner no. 1 and Madan Prasad in his turn sold the land of his share to the petitioners and on the application filed by the petitioners their names were entered in the Jamabandi register.
(3.) THE dispute arose in 1977 when respondent no. 7 made an application before Additional Collector, Palamau stating inter alia that the transfer of land in question which was sold to the petitioners is illegal and their names were wrongly mutated in respect of the said land. The said application was rejected by the Circle Officer on 4 -8 -77 after holding an inquiry in the matter. One Baij Nath Prasad has also filed an application for mutation of his name in respect of 31 decimals of land appertaining to plot no. 34 -37 and 24 including portion of the land in question in respect of which demand was already opened in the name of the vendor of the petitioners which application was also rejected on 20 -4 -69. The said Baij Nath Prasad preferred second appeal before the Additional Collector, Palamau which was registered as Revenue appeal no. 117/69 -70. The Additional Collector, Palamau by his order dated 4 -8 -77 passed in case no. XV/117 of 1969 -70 rejected the appeal holding that the land in question belongs to the petitioners who along with his vendor have acquired valid right, title and possession. It further appears that at the instance of respondent no. 7 the land encroachment proceeding was initiated against the petitioners in respect of the said land being case no. 1/ 1987 -88. The Collector by order dated 31 -10 -88 dropped the proceeding holding that the land was not a public land within the meaning of the said Act. It further appears that in the mutation proceeding filed by the petitioner their names were ultimately mutated on the basis of order passed in mutation appeal of 1987. The respondent no. 7 also challenged the order of mutation passed in favour of the petitioners by filing revision before the Additional Collector which was registered as mutation case no. 189/92 -93. The Additional Collector by order dated 7.8.93 dismissed the revision filed by respondent no. 7 after hearing both the parties and considering all the materials on record and the said order became final in as much as it was never challenged by respondent no. 7. The respondent no. 7 after losing all the proceedings filed an application for himself and on behalf of the villagers for cancellation of Jamabandi opened in the name of the petitioners. The said application was registered as miscellaneous case no 40/93 -94. in the caid proceeding the impugned order has been passed and the Jamabandi which was opened long back has been cancelled.;