RAM SIGASHAN PATHAK Vs. K P SINHA

JUDGEMENT

(1.) As a common question of fact and law arise for consideration in these writ applications, they were heard together and are being disposed of by this common judgment.

(2.) These writ applications involve a question as to whether the provisions of the Evidence Act apply in relation to a proceeding initiated under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to for the sake of brevity as 'the Act')?

(3.) For the purpose of deciding the question involved in these writ applications it is not necessary to state the facts in details. However, for a better appreciation of the point involved, the facts of the case as stated in the writ petition in C.W.J.C. No. 3226 of 1987 may be taken into consideration. It is admitted that the petitioner and respondent 4 are descendants of their common ancestors. The genealogy of the family is as follows :- According to the petitioner, he belongs to the branch of Ram Narain Pathak whereas respondent 4 belongs to the branch of Jai Mangal Pathak. After the death of their fathers, the petitioner and respondent No. 4 have been coming in cultivating possession of the lands in question having half share each, although they have been living separately. According to the petitioner, although no deed of partition was executed, there had been a partition by means of Khangi batwara in respect of the properties in question as a result whereof the petitioner and the respondent No. 4 had been cultivating the lands allotted to their respective shares to the extent of half and half. The petitioner has asserted that during the course of Revisional Survey operation, by mistake, the name of Mst. Bigna Kuer, who was merely a maintenance holder, was also recorded in the khatian in respect of the lands of two villages Tendua and Kurari along with the name of the petitioner and the respondent No. 4. According to the petitioner, however, no such entry was made relating to the lands situated in village Dhaw Pokhar. The petitioner has asserted that, in the year 1972 itself, a notification under S.3 of the said Act was published in the Anchal covering the villages in question. The petitioner has further alleged that the respondent No. 4 with a motive to grab the property which was in the share of the petitioner obtained a fraudulent and illegal deed of gift executed by Mt. Bigna Kuer in his favour on the 30th June, 1973, when the Revisional Survey operation was at its final stage. The petitioner has challenged the aforementioned deed of gift executed by Mt. Bigna Kuer on the 30th June, 1973, inter alia on the ground that the said deed was obtained by practising a fraud upon her and also on the ground that the same was void as it was executed after the issuance of the notification under S.3 of the Act without the permission from the competent authority and, as such, the same was void. According to the petitioner, even the lands in question which are the subject-matter of the aforementioned purported deed of gift have not been mutated in the name of the respondent 4.