Ravinandan Sahay, J.
1. By this application under Article 226 of the Constitution of India, the State of Bihar and its Officers seek review of my judgment and order dated 25-9-1995 in C.W.J.C. No. 2570 of 1995 (R) whereby and whereunder the writ application filed by M/s. Jethmull Bhojraj was allowed and consequently, a writ of mandamus was issued upon the present petitioners, who were respondents in the writ petition to enter the name of the writ petitioner in the Zamabandi records of right and opening of a demand and showing the Government of Sikkim a mortgagee in possession over the land, which was subject-matter of the writ application.
2. The writ application was disposed of at the admission stage itself after hearing the counsel for the petitioner and Government Pleader, who represented the State of Bihar. The writ application was disposed of on the basis of certain facts which could not be disputed in view of decision of the Division Bench of this Court in C.W.J.C. Nos. 434 & 435 of 1966 dated 14-10-1966 (Jethmull Bhojraj v. State of Bihar) reported in : AIR1967Pat287 , which was affirmed by Hon'ble Supreme Court in : [1972]3SCR193 .
3. The main grievance of the petitioners in this review application is that no opportunity was afforded to them to seek instruction and file counter-affidavit. It was contended by the learned Advocate-General appearing on behalf of the petitioners that had an opportunity been given to the State to file counter-affidavit, the result would have been different and the writ petitioner obtained favourable order by suppressing material fact and misleading the Court. So far as this plea is concerned, in my opinion, there is no merit. Counsel for the State did not seek adjournment for filing counter-affidavit and if any prayer was made, certainly opportunity would have been given to file counter-affidavit. The matter was capable of being disposed of on the materials produced by the writ petitioner and in view of the decision of the Division Bench of this Court (supra) finally setting at rest the controversy between the parties.
4. I have permitted the learned Advocate-General to place facts and documents in support of his plea that the judgment was obtained by committing fraud on this Court despite preliminary objection, raised by Mr. Debi Prasad, learned Counsel appearing for the respondent, that this review application is not maintainable.
5. At this stage, it would be necessary to refer to salient facts of the case in order to give my opinion on the review petition. Respondent M/s. Jethmull Bhojraj, a partnership firm having its place of business at M.G. Marg, Gangtok, Sikkim and also at Jhumritilaiya within the district of Koderma filed C.W.J.C. No. 2570 of 1995 (R) before the Ranchi Bench of Patna High Court impleading the review petitioners as respondents. The State of Sikkim was not a party in the writ petition. The State of Sikkim filed an intervention application in this review application and Counsel for the State of Sikkim was also heard.
6. The case of the petitioner in the writ petition was that in the year 1944-45 petitioner firm was invited by Raja of Tilaiya and Raja Khesmi in Chotanagpur area of State of Bihar to assist in the development of this region which was suffering from extreme poverty. The petitioner firm took raiyati settlement of about 3500 acres of land in Tilaiya and Devipur within Thana Koderma and decided to develop these lands and to give impetus to the programme of 'Grow More Food for Nation' started by the Government of India just after Independence. The writ petitioner approached the Chogyal of Sikkim who had surplus funds for investment to involve them is an ambitious project of establishing a modern mechanised agricultural and horticulture farm on these lands in the State of Bihar.
7. The petitioner mortgaged the lands at Tilaiya as security creating lien in favour of the Government of Sikkim which included the right of possession. However, title and ownership remained with the petitioner firm. It was agreed between the petitioner firm and the Government of Sikkim that if for any reason the project was dropped, the loan would then be squared up from the sale proceeds of these lands. Six years thereafter, the petitioner firm invested the amount advanced to it for the development of the land for the aforesaid project. The petitioner then gave history of 3500 acres of land at Tilaiya and Devipur.
8. In 1948 lands in question were notified under Sections 14 and 21 of the Bihar Private Forest Act, 1947. They were again notified under Section 29 of the Indian Forest Act in 1953-54. Later, the Government realised that in order to improve those lands in the adjoining Government forests it would be necessary to acquire them under the Land Acquisition Act. Consequently, they were notified for acquisition. But, after the land in question were tentatively valued, the Government though that it was not worthwhile to acquire entire area notified for acquisition. Hence it withdraw from acquisition a substantial portion of lands notified for acquisition. The writ petitioner challenged the decision of the Government to withdraw from acquisition the substantial portion of lands on the ground that when the lands in question were notified under Section 29 of the Indian Forest Act, the Forest Department unlawfully took possession of those lands and continued to be in possession of the same and therefore, when notifications under Section 6 were issued, the Government was the owner of those lands and therefore, was not competent to withdraw from acquisition any of the lands notified under Section 6.
9. The State of Bihar denied the fact that the Government took possession of the land in question in 1954. It denied the allegation that the Government became owner of the land in question and notification under Section 6 was issued. The writ petitions were disposed of by the Division Bench of this Court and this Court held that there was no sufficient evidence to hold that the Government had taken possession of the land in 1954. Thus, the stand of the petitioner in the writ petition was that the Government had taken possession of the land in question and therefore, the petitioner was entitled for compensation in the land. The stand of the Government on the other hand was that the possession was still with the petitioner. Now the stand of the respective parties is contrary to their earlier case. The writ applications filed by the respondent was dismissed.
10. The matter was taken up to the apex Court. The apex Court in M/s. Jethmutt Bhojraj v. State of Bihar : [1972]3SCR193 , affirmed the decision of the Division Bench of this Court. This controversy was again raised by the writ petitioner in this Court and filed two writ applications (C.W.J.C. Nos. 253/68 & 254/68). The writ petitions were dismissed and the writ petitioner appealed before the Hon'ble Supreme Court. The decision of the Hon'ble Supreme Court is reported in 1995 Supp (4) SCC 255 (Jethmull Bhojraj v. State of Bihar). Hon'ble Supreme Court noticed the stand taken by the State Government in the High Court. The apex Court held that there was procedure in vogue in Bihar State that there should be an order passed by the Minister directing the officer concerned to take possession of the property but there was no such order passed by the Minister. Consequently, the possession was not taken. That stand was accepted by the High Court, and in view of the concessions made by the Respondent that the possession was not taken from them, it was held that the Government was at liberty to withdraw from acquisition by a notification issued under Section 48(1) of the Act. The Supreme Court dismissed the appeal filed by the writ petitioner on the following terms:
The finding recorded by the High Court is that there is no evidence to show that the possession was taken from the appellants and the conclusion is that the possession was not taken by the Government. Hence, the Government was at liberty to withdraw, from acquisition by exercising power under Section 48(1) of the Act. Moreover, the previous decision operates as res Judicata and in the later proceedings such decision cannot be reopened on the ground that certain record was not placed before the High Court on the earlier occasion. The appeals are accordingly dismissed.
11. Thus, the Hon'ble Supreme Court gave a categorical finding on the controversy between the State of Bihar and the writ petitioner by affirming the judgment of the Division Bench of this Court. Any new ground was barred by the principle of res judicata.
12. In this review application the State of Bihar has come forward with a strange plea that the' raiyati settlement of 3500 acres of land at Tilaiya and Debipur within Thana Koderma which was subject matter of the earlier writ petition was invalid since the settler had no right title on the land. The State of Bihar has filed documents in support of its plea. The State, therefore, wants to re-open the whole controversy once again. The controversy is settled by the verdict of Hon'ble Supreme Court. According to the State, lands in dispute were accorded in the name of Forest Department and some land in the State of Bihar. This plea is based on certain report of Halka Karamchari, Anchal Amin and Anchal Supervisor (Annexure-3 to the Supplementary Affidavit). It is further pointed out that the ex-landlord Tikati Shree Dwarikanath Sahi from whom the writ petitioner-respondent claims to have taken settlement submitted report after vesting to the effect that the writ petitioner is in possession of only some lands pertaining to Khata Nos. 31, 36, 96, 8, 216 and 241. In para-3 of the Supplementary Affidavit, it is stated that the respondent-writ petitioner was claiming approximately 3,500 acres of land whereas according to the record of rights prepared under the Minor Survey, 2614.75 acres was found as aforesaid either recorded in the name of Forest Department, Gairmazurwa land of the State of Bihar and in occupation of raiyati.
13. In the second Supplementary Affidavit, it has been asserted ' ...after rigorous search made in the Record Room of Hazaribagh Registry, the records and Register of the year 1944-46 was ascertained in respect of intermediary interest the land in question and it was found that the so called settlement was totally false and fabricated.' It was submitted that the writ petitioner had played fraud by suppressing necessary facts. In para-9 of the second Supplementary Affidavit following averments have been made:
That the claim of respondent M/s. Jethmull Bhojraj is absolutely false, fictitious, baseless and fraudulent, because from the perusal of the Register 'D' pertaining to Tauji No. 28 relating to the land measuring about 2,424.80 acres of Mauja Tilaiya, Revenue Thana No. 244, P.S. Koderma shows the name of Original intermediary landlord at , the time of Survey, Mr. W.O. Macgregor as Manager for proprietor Raj Kumar Laxmi Narain Singh son of Raja Ram Narain Singh of Hazaribagh for the entire 16 annas share of the Tauzi and thereafter the name of A.M. Walter as Manager for proprietor Raj Kumar Laxmi Narain Singh son of Ram Narain Singh of Hazaribagh over the entire 16 annas share, was entered in 1918-19 by Case No. 30 of 1919 by order dated 8-9-1920 of the then D.C.
It is further submitted the name of Mr. A.M. Walter for Kumar Kamakhya Narain Singh, son of Kumar Laxmi Narain Singh of Hazaribagh as Manager for proprietor for the year 1919-20 vide Case No. 193/1938 and thereafter for the year 1937-38 the name of Babu Kamakhya Narain Singh son of Babu Laxmi Narain Singh of village Padma Thana Barhi as proprietor for Tauji No. 28 vide Case No. 85 of 1937-38.
14. In para-10 of the second supplementary affidavit, it is stated:
That it is necessary to state that for the year 1953-54 at the time of vesting of estate to the Government of the State of Bihar the name of State of Bihar through Additional Collector, Hazaribagh has been entered in Register-'D' as proprietor for all the 16 annas of Taujis vide Mutation Case No. 11 of 1953-54.
15. In para-11 of the second supplementary affidavit, it is alleged:
That with regard to another chunk of land measuring of 1000 acres of village Devipur, Revenue Thana No. 102 appertaining to Tauji No. 14, Register-'D', the Registrar of intermediary landlord duly maintained by the State of Bihar and according to the cadastral survey disclosed the entry in the name of Babu Janki Gupta Manager incumbered estate on behalf of Babu Thakur Jagat Narain Singh son of Trilok Narain Singh as proprietor of the entire 16 annas Tauji vide Mutation Case No. 20 of 1914-15, and, therefore, the name of Babu Brijo Kumar Niyogi, Manager estate on behalf of Babu Thakur Jagat Narain Singh was entered for all the 16 annas of Tauji vide mutation case No. 70 of 1920-21 as Manager.
It is further submitted the name of Thakur Jai Narain Singh, son of Jagat Narain Singh of Devipur village P.S. Koderma was entered as proprietor for the entire annas share vide mutation case No. 54 1936-37 and still thereafter, the name Thakur Tulsi Narain Singh son of Thakur Narain Singh of village Devipur, P.S. Koderma was entered as proprietor of the entire 16 annas of Tauji vide mutation case No. 80 of 1937-38 of inheritance.
It is further submitted that thereafter, the name of Meghu Sahu son of Kokil Sahu of Demchanch, P.S. Koderma, finds entry as mortgagee for the entire 16 annas of Tauji vide Mutation Case No. 81 of 1938-39, and after the aforesaid period the name of the State of Bihar through the Additional Collector, Hazaribagh has been entered in Register-'D' as proprietor for the entire 16 annas of Tauji vide Mutation Case No. 93 of 1953-54 on vesting with the estate to the Government of the State of Bihar.
16. In my opinion, these are matters which are beyond the scope of the present review petition. The controversy raised by the State of Bihar can be resolved only in Civil suit. As held earlier, these pleas are barred by principles of res judicata. If the State was in possession of these lands there was no occasion for the land acquisition proceeding.
17. Learned Advocate-General has strenuously argued that the direction issued by this Court to enter State of Sikkim as mortgagee in possession along with the writ petitioner in the record of rights is without any factual basis because the State of Bihar is the owner and proprietor of the lands in question. He submitted that Civil Suit No. 1/85 was filed before the Sikkim High Court for recovery of loan advanced to the writ petitioner firm and the decree passed in the suit is not binding on the State of Bihar since the State of Bihar was not impleaded in the Civil Suit. An appeal has already been preferred before the Hon'ble Supreme Court against the decree of the Sikkim High Court and the State of Bihar has been impleaded as respondent. It would not be proper to give any opinion as to the validity of the decree passed by the Sikkim High Court in civil suit No. 1/85 against which appeal has been preferred.
18. I would now advert to the facts and circumstances why I issued mandamus upon the review petitioners (State of Bihar and others) to enter the name of writ petitioner company in the Zamabandi record of rights by opening demand and also showing Government of Sikkim as mortgagee in possession: This direction was issued on the strength of documents annexed with the writ petition. Annexure-2 to the writ petition was the letter dated 11-11-1994 written by the Resident Commissioner, Government of Sikkim to the then Revenue Secretary, Government of Bihar as extracted hereunder:
Dear Shri Sinha,
You will kindly recall my previous letter reminding you of the matter of M/s. Jethmull Bhojraj, who have some property to be sold to liquidate the loan of the Government of Sikkim. Since the matter has been pending for a long time, I would like to request you to very kindly expedite this so that the Government of Sikkim will also be able to realise the funds from the party. It seems that the party concerned has to pay interest as per Court order and the more the matter is delayed the interest accumulates and again the party will have problem of repaying the entire amount of loan. In view of the circumstances, we would be grateful for your prompt and early disposal of the matter from your end.
With regards.
19. Annexure-3 was the latter dated 20-5-1995 by the Commissioner-cum-Secretary Finance, Government of Sikkim to the Deputy Commissioner, Koderma District informing that the State of Sikkim was the mortgagee in possession of 3500 acres of land belonging to the firm, Jethmull Bhojraj. This possession was cheated by deposit of title deeds in the year 1968 pursuant to the agreement signed between the Chogyal, Government of Sikkim and Jethmull Bhojraj on 3rd September, 1968. It was requested to place the name of State of Sikkim in the record of rights as mortgagee in possession along with Jethmull Bhojraj. A partner of the writ petitioner wrote to the Revenue Secretary, Government of Bihar for withdrawal of acquisition but the Revenue Secretary did not agree to mutate the land in the name of the firm which they ought to have been done. It was pointed out that the entire land released by the order of the Hon'ble Supreme Court is in lien with the State of Sikkim against outstanding loans. The firm wanted to dispose of these lands to repay the loan of Government of Sikkim.
20. It would be pertinent to note that by order dated 13-4-1999 in Civil Appeal No. 4212 of 1986, Devi Dayal Sukhani v. State of Sikkim, the Hon'ble Supreme Court granted permission to sell the. properties to the firm of Koderma subject to the certain conditions mentioned in the order.
21. Learned Advocate-General in the light of Annexures-9 and 10 of the Rejoinder filed on 25-6-1999 submitted that an agreement dated 3-9-1968 was executed by and between M/s. Jethmull Bhojraj and Palden Thondup Nangyal, Chogyal of Sikkim and pursuant thereof two mortgage deeds dated 14-3-1969 were executed in favour of Government of Sikkim. On perusal of the mortgage deed dated 14-3-1969, it was revealed that Jethmull Bhojraj mortgaged the residential buildings, staff quarters etc. located in the town of Koderma. The said mortgage deed does not disclose the description of land of 3,500 acres of village Tilaiya and Devipur. The other mortgage deed relates to the properties mortgaged in favour of the State of Sikkim related and located in the State of Sikkim, Darjeeling, Calcutta and other places. On the basis of the aforesaid mortgage deed, the State of Sikkim instituted Civil Suit No. 1/1985. As per term of Clause (2) of Annexure-9, it was stipulated that Jethmull Bhojraj within 21 days of the agreement deposits in the town of Calcutta with Kunzang Sherab Secretary, Finance Department, Government of Sikkim, as agent of the Government of Sikkim all the title deeds relating to all their properties situate in India with intent to create a security thereon within the meaning of Section 58(f) of the Transfer of Property Act. It is, thus, apparent from this clause of the agreement that the entire properties of the writ petitioner Jethmull Bhojraj situated any where in India is subject to mortgage. I am unable to accept the contention of the learned Advocate-General that the writ petition was disposed of on insufficient materials. The direction prayed for was issued in the light of the decision of the Division Bench of this Court as affirmed by the Hon'ble Supreme Court and the documents annexed with the writ petition as has been considered in earlier part of the judgment.
22. Sri Debi Prasad, learned Senior Counsel for the respondent-writ petitioner has submitted that in the facts and circumstances of the case, no case for review has been made out. He has placed strong reliance on State of Bihar v. Sakti Chemicals & Fertilisers Ltd. : AIR1991Pat261 . Incidentaly this case was also decided at the stage of Admission without there being any counter-affidavit filed on behalf of the State because the question raised by the writ petitioner was already decided in previous writ petition. The review application filed by the State was dismissed with following observations:
21. I would further wish to state that the submissions now being urged on behalf of the State ought to have been advanced in C.W.J.C. No. 3292 of 1983 or at any rate in C.W.J.C. No. 1179 of 1987. The insurmountable obstacle in the way of the State is that the submission is being canvassed for the first time in an application for review and even if it is held that the submission advanced represents one of the two possible views of the case (though I find it clearly less acceptable) it does not justify this Court to review or modify an earlier order passed in presence of all concerned.
22. Learned Advocate-General wants this Court to give a second thought over its earlier decision on merits which is not permissible in a review petition.
23. Sri Debi Prasad also relied on Md. Abdul Sobhan v. Kinaram Das AIR 1983 Gau. 87. In this case, one of the respondents was not heard because name of his Counsel was not printed in the cause list on the date of hearing. The Division Bench of Gauhati High Court held since there was an order just and proper and in accordance with law, no injustice was caused to the respondent and mere absence by itself was not sufficient ground for reviewing the order.
24. In Dr. Janak Raj Jai v. H.D. Deve Gowda : (1997)10SCC462 , it was held that in review application new grounds cannot be urged,
25. Learned Counsel for the respondent has rightly argued that in view of earlier litigation between the petitioner and M/s. Jethmull Bhojraj, any fresh contention of State of Bihar was barred by principle of estoppel and res judicata.
26. Sri Debi Prasad, learned Counsel for the respondent submitted that true report of the Anchal Adhikari has been filed as Annexure-E to the Supplementary Affidavit. Learned Counsel submitted that Jamabandi is already running in the name of writ petitioner Jethmull Bhojraj and for cancellation of the same, proceeding under Section 4(h) of the Act was initiated which proceeding was ultimately dropped vide Annexure-H. Sri Debi Prasad has referred to the Division Bench decision of this Court in B.K. Ganguly v. State of Bihar 1981 BLJR 54 and submitted that proceeding under Section 4(h) of the Bihar Land Reforms Act has terminated in favour of the writ petitioner and since no appeal was preferred by the State, the order become final, and the matter cannot be re-opened. It is needless to add that record of right is no evidence of title and it is always open to the party who challenges the entry to file a title suit.
27. After giving my consideration to entire facts and circumstances of the case, I have come to the conclusion that there is no material before me to justify review of my judgment even after the matter was reheard. The review application is dismissed. No costs.