D.N.PATEL,J. - (1.) This Letters Patent Appeal has been preferred by the appellants (original respondent nos. 5 & 6) against the judgment and order delivered by the learned Single Judge in W.P.(S) No. 1230 of 2012 dated 12th September, 2013, whereby, the writ petition preferred by respondent nos. 5 to 9 (original petitioners) has been allowed and, the dispute about the title over property, in question, was directed to be referred by respondent no.3 to the competent Civil Court for adjudication with regard to apportionment of the compensation amount between the parties. This reference is to be made under Section 3(H)(4) of the National Highways Act, 1956.
(2.) It has also been held by the learned Single Judge that execution of a Will and probate thereafter, is not a conclusive proof of the title upon the property and the Court who has granted probate, has no power, jurisdiction and authority to decide the title upon the property, in question, on the basis of decisions, rendered by the Hon'ble Supreme Court. (a)(2008)4 SCC 300, (b)(2007) 11 SCC 357 (c)(1993) 2 SCC 507 (d)(2009) 2 SCC 315 (e)(2007) 2 SCC 481 Being aggrieved and feeling dissatisfied by the aforesaid decision of the learned Single Judge, the original respondent nos. 5 and 6 of the writ petition being W.P.(C) No. 1230 of 2012, have preferred this present Letters Patent Appeal.
(3.) Factual Matrix. · The land, in question, is Khata No. 49 of Village Kothar, P.O. Kaitha, District-Ramgarh, admeasuring 30.65 acres of land. · This entire land was the subject matter of execution in L. A. Case No. 01/2010-11. The land acquired was under the National Highways Act, 1956. · The land in question was originally owned by three persons, who are:- (a)Mani Ohdar, (b)Bhondu Bedia and (c) Bideshiya Bedia. This is as per revenue entries maintained by the State of Jharkhand. This document is at Annexure-A to the memo of this Letters Patent Appeal and was also before the learned Single Judge in the writ petition. Thus, the land, in question, was originally owned by the aforesaid three persons. · One of the successor-in-title of Mani Ohdar is Most. Lalo Devi, who has given entire property of Khata No. 49 admeasuring more than 30 acres of land in favour of, (a) Kishun Bedia, (b) Mankuria and (c) Maksu Bedia. All the aforesaid three persons are successor-in-title of Mani Ohdar. · Thus, it appears that the whole difficulties have been created by the Will of Lalo Devi as there were other two owners also over and above Mani Ohdar, who are:- (a) Bhondu Bedia and (b) Bedeshiya Bedia. The original petitioners in the writ petition being W.P.(C) No. 1230 of 2012 are the successor-in-title of Bideshiya Bedia. · Thus, Co-owner Lalo Devi, who is successor-in-title of Mani Ohdar, ignoring other two owners viz.(a) Bhondu Bedia and (b) Bideshiya Bedia, has executed the will for whole of the property. · On the basis of the so called Will, probate case was also filed by the beneficiaries of Will of Lalo Devi being Probate Case No. 53 of 1964 in the Court of District Judge at Hazaribagh under Section 217 of the Indian Successor Act, 1945 for getting probate, on the basis of the Will executed by Lalo Devi. · This probate case was contested by the petitioners of W.P.(C) No. 1230 of 2012 by way of objection under Section 295 of the Indian Succession Act, 1925 and hence, the probate case was converted into title suit and was numbered as Title Suit No. 9 of 1965. Rule 458 of the Civil Court Rules of the High Court of Judicature at Patna also permits conversion of probate case into title suit, whenever the probate case is being contested. · The probate case, thus was converted into Title Suit No. 9 of 1965 and was decided vide order dated 24th June, 1969 by learned 2nd Additional District Judge, Hazaribagh. It appears that the learned 2nd Additional Sessions Judge has not only decided the probate of the Will, but, has also decided the title upon the property. · Thereafter, for acquiring the land under the National Highways Act, 1956, respondent no. 3 issued a notice (which is at Annexure-4 to the memo of this Letters Patent Appeal) to Bideshiya Bedia also, because as per revenue entries maintained by the State of Jharkhand, he was one of the owners of the property, in question. In fact, the notice was issued under the National Highways Act, 1956 upon all the three owners of the property, in question, viz., (a)Mani Ohdar, (b)Bhondu Bedia and (c)Bideshiya Bedia. · Thus, it appears from the said notice that even as per the National Highways Authority, the aforesaid three persons were the owners of the property, in question, as per the revenue entries. These revenue entries are at Annexure-A to Annexure- 11 of this Letters Patent Appeal. · In the compensation proceedings the successor-in-title of Bideshiya Bedia raised an objection that they are also the owners of the property in question, but, the said authority, on the basis of the decision rendered in the probate case (Title Suit No. 9 of 1965), awarded the whole compensation in favour of the beneficiaries of the Will, executed by Lalo Devi. This order was passed by the authority under the National Highways Act, 1956 on 20th October, 2011, which is at Annexure-8 to the memo of this letters Patent Appeal. · Being aggrieved and feeling dissatisfied by this order, a writ petition being W.P.(C) No. 1230 of 2012 was preferred by the respondent nos. 5 to 9 of this Letters Patent Appeal, mainly on the ground that a Court who is deciding the probate case, has no power, jurisdiction and authority to decide title of a property and on the basis of the several decisions as stated herein above, the learned Single Judge has held that the Court who has decided the probate case had no power, jurisdiction and authority to decide a title of the property or to decide a fact that the executor of the Will was the owner of the property, especially, when the other joint owners of the property are raising a dispute. The learned Single Judge has also observed that the authority under the National Highways Act, 1956 will refer the matter to the competent Civil Court under Section 3(H) (4) of the National Highways Act, 1956. · Thus, the matter has now been referred to the competent Civil Court, in which now some evidence has also been taken by the Court below. · Being aggrieved and feeling dissatisfied by the aforesaid decision of the learned Single Judge in W.P.(C) No. 1230 of 2012 dated 12th September, 2013 the original respondent nos. 5 and 6 of the writ petition have preferred this Letters Patent Appeal. ;