Judgment:
D.N. Patel, J.
1. The present petition has been preferred under Article 227 of the Constitution of India against an order, passed by the Deputy Commissioner, Hazaribagh, dated 8th November, 2008 in Mutation Revision No. 1 of 2008, whereby, an order, passed by the Deputy Collector, Land Reforms, Hazaribagh, dated 12th December, 2007 in Mutation Appeal No. 26 of 2006 has been quashed and set aside and the order, passed by the Circle Officer, Katkamsandi, Hazaribagh, 11th July, 2006 in Mutation Case No. 736 of 2006-07 has been confirmed. Thus, the petitioners have preferred this writ petition, basically against both the orders of Circle Officer, Katkamsandi, Hazaribagh, as well as Deputy Commissioner, Hazaribagh.
2. It is vehemently submitted by the learned Counsel for the petitioners that the land, in question, is Khata No. 1, Plot No. 9, ad-measuring 0.49 Acres, situated at VillageJalima, P.S. Katkamsandi, District, Hazaribagh. Petitioners' father as well as the father of respondent Nos. 6 and 7 were the joint owners of the property, in question. There is no partition of the Joint Hindu Family. Despite this fact, the legal heirs of one of the joint owners, namely, late Ram Tahal Mahto have sold away the property to respondent No. 5. Thus, the predecessor-in-title of respondent No. 5 are respondent Nos. 6 and 7, who are the sons of one of the joint owners of the property, in question i.e. Ram Tahal Mahto. Without mutating the names of respondent Nos. 6 and 7, the Circle Officer has mutated the name of respondent No. 5 in the revenue entries. This is an error No. 1 in the order, passed by the Circle Officer. Likewise, second error has also been committed by the Circle Officer to the effect that he has presumed the partition of the Joint Hindu Family. The Circle Officer, being a revenue officer, cannot decide partition between the co-parceners. There is also a third error, as narrated by the learned Counsel for the petitioners, to the effect that the Circle Officer has also presumed the sharers of the co-parceners. This is also de-hors the power and jurisdiction of an officer, working as a revenue officer under the revenue laws, as it is the matter to be decided by the Civil Court under Section 9 of the Code of Civil Procedure. Civil dispute is involved in the matter and the petitioner deny the so-called oral partition and hence, the order, passed by the Circle Officer dated 11th July, 2006 (Annexure 1 to the memo of petition) deserves to be quashed and set aside. Thereafter, the petitioners preferred an appeal being Mutation Appeal No. 26 of 2006 and the appellate authority, namely, Deputy Collector, Land Reforms, Hazaribagh, has appreciated the aforesaid arguments of the petitioners and has observed that partition of the property is in dispute and ultimately, the order passed by the Circle Officer was quashed and set aside and it has also been directed correctly by the appellate authority that the parties must take shelter of a civil court. This order was carried in revision, by the private respondents, where the simple proposition, which has been appreciated by the Deputy Collector, Land Reforms, Hazaribagh, has not been properly appreciated by the Deputy Commissioner, Hazaribagh, and again the same error has been committed by the Deputy Commissioner, Hazaribagh, which has been committed by the Circle Officer. Partition between the coparceners has been presumed; shares of the co-parceners have also been presumed and the order, passed by the Deputy Collector, Land Reforms, Hazaribagh, has been quashed and set aside. In fact, neither the Circle Officer nor the Deputy Commissioner has properly appreciated the aforesaid contentions that the officers working under the revenue laws cannot presume the partition, cannot presume the shares of the co-parceners and, therefore, the parties ought to have been relegated to the civil court, as has been relegated by the lower appellate court and, therefore, this Court may quash and set aside the order, passed by the Deputy Commissioner, Hazaribagh, and the Deputy Commissioner, Hazaribagh, may be directed to decide the revision afresh, in accordance with law, within the stipulated time, as given by this Court.
3. I have heard learned Counsel appearing on behalf of respondent Nos. 5, 6 and 7, who are the main contesting parties. Learned Counsel for respondent Nos. 5, 6 and 7 vehemently submitted that there is already a partition between the co-parceners of the property, in question, on the basis of Partition Suit No. 53 of 1945, which was finally decided, upon appointment of an arbitrator, but, it is fairly submitted by the learned Counsel for these contesting respondents that it is a fact that there was no partition between the father of the petitioners and the father of respondent Nos. 6 and 7. The land, in question, was running in the joint name of both the aforesaid persons, namely, Ugan Mahto and Ram Tahal Mahto. It is also fairly submitted by the learned Counsel for respondent Nos. 5, 6 and 7 that the names of respondent Nos. 6 and 7 were never inserted in the revenue entries and they have sold away the property to respodnent No. 5 by registered sale deed dated 12th September, 2005 and respondent No. 5 thereafter, applied for mutation of his name in the revenue entries and his case was registered as Mutation Case No. 736 of 2006-07, which was allowed by the Circle Officer. It is further submitted by the learned Counsel for the respondents that no error has been committed by the Circle Officer in mutating the name of respondent No. 5, because respondent Nos. 6 and 7n have sold away the property through registered sale deed in favour of respondent No. 5 and the father of respondent Nos. 6 and 7 was already one of the owners of the property, in question. This fact has also been properly appreciated by the revisional authority, while quashing and setting aside the appellate order, passed by the Deputy Collector, Land Reforms, Hazaribagh and, therefore, this writ petition deserves to be dismissed and the order, passed by the Circle Officer, Katkamsandi, Hazaribagh as well as the order, passed by the revisional authority i.e. Deputy Commissioner, Hazaribagh are absolutely in consonence with the facts and law.
4. Having heard learned Counsel for both the parties and looking to the facts and circumstances of the case, I hereby quash and set aside the order, passed by the Deputy Commissioner, Hazaribagh, dated 8th November, 2008 in Mutation Revision No. 1 of 2008 (Annexure 5 to the memo of petition), mainly for the following facts and reasons:
(i) It appears from the facts of the case that the land, in question, is Khata No. 1 Plot No. 9, ad-measuring 0.49 Acres, situated at Village Jalima, Katkamsandi, DistrictHazaribagh. This land was running in the names of two persons, namely, Ugan Mahto and Ram Tahal Mahto. Petitioners are the sons of Ugan Mahto and respondent Nos. 6 and 7 are the sons of Ram Tahal Mahto. There was no partition between Ugan Mahto and Ram Tahal Mahto. Nothing is on the record about the partition in the revenue entries.
(ii) Now it appears from the facts that respondent Nos. 6 and 7 have sold away the property, in question, to respondent No. 5 through a registered sale deed dated 12th September, 2005 and, thereafter, respondent No. 5 applied for mutation of his name in the revenue entries and a case was registered as Mutation Case No. 736 of 2006-07 before the Circle Officer, Katkamsandi, Hazaribagh.
(iii) It appears that the Circle Officer, while allowing the mutation in favour of respondent No. 5, has gone to the extent that there was an oral partition between Ugan Mahto and Ram Tahal Mahto in 1969. This is on the basis of purely an allegation, levelled by respondent Nos. 6 and 7. There is no evidence, worth the name, of this oral partition. This fact has been denied by the petitioners. Despite this dispute about the oral partition, the Circle Officer presumed oral partition and also presumed the shares between the co-parceners. Likewise, orally the land was also transferred to respondent Nos. 6 and 7 and thereafter, the name of respondent No. 5 was inserted, but, without inserting the names of respondent Nos. 6 and 7 in the revenue entries, directly the name of respondent No. 5 was mutated in the revenue entires, while passing an order by the Circle Officer.
(iv) It ought to be kept in mind by the officers, working under the revenues laws, that whenever there is any dispute between the parties about the right, title and interest, the parties must be relegated to the civil court and the revenue officers should not decide the right, title and interest of the parties, like a civil judge. Oral partition is in dispute between the parties. Without appreciating this fact, an order has been passed by the Circle Officer in favour of respondent No. 5 and, therefore, the order, passed by the Circle Officer, Katkamsandi, Hazaribagh, dated 11th July, 2006, which is at Annexure 1 to the memo of petition, deserves to be quashed and set aside.
(v) It appears that an appeal was preferred by the present petitioners being Mutation Appeal No. 26 of 2006 before the Deputy Collector, Land Reforms, Hazaribagh, who has allowed the appeal, while passing the order dated 12th December, 2007 (Annexure 4 to the memo of petition) and rightly it has been observed by the lower appellate authority that party should go to the civil court for apportionment of their respective share in the property, in question. It has also rightly been observed by the lower appellate court that possession of the property was also in dispute and, thus, keeping in mind several civil disputes between the parties, rightly the lower appellate court i.e. Deputy Collector, Land Reforms, Hazaribagh has quashed and set aside the order, passed by the Circle Officer, Katkamsandi, Hazaribagh and relegated the parties to approach the civil court.
(vi) Against this order i.e. the appellate order, respondent Nos. 5, 6 and 7 preferred revision application being Mutation Revision No. 1 of 2008 before the Deputy Commissioner, Hazaribagh, who also, without appreciating the fact that the oral partition is in dispute and the possession of the property is in dispute, while affirming the order, passed by the Circle Officer, Katkamsandi, Hazaribagh, quashed and set aside the order, passed by the lower appellate court and, thus, the revisional authority has committed a grave error in the facts and law, as the revenue officers should not decide the civil disputes between the parties, especially of a partition, share in the partitioned property, possession etc.
Learned Counsel for the petitioners has placed reliance upon a decision, rendered by this Court in the case of Munshi Sao and Ors. v. The State of Jharkhand and Ors. as reported in 2008 (2) J.L.J.R. 455, wherein, at paragraph No. 5, it has been held as under:
5. I have heard learned Counsel for the parties and perused the records. From the order of the Circle Officer, it is evident that he has determined the share of the parties and has allowed mutation on the basis of determination of respective share of the parties. The determination of the share or declaration of title is outside the jurisdiction of the revenue authority. As such, the order passed by the Circle Officer is without jurisdiction. The appellate and the revisional authorities have rightly held that the Circle Officer has no jurisdiction to go into the question of title and determination of the share of the parties. The orders of the appellate and revisional authorities are well discussed and thoroughly considered. There is no infirmity or illegality in the impugned order.It has also been held by this Court in the case of Moti Chand Khanna v. State of Bihar and Ors. as reported in 2002 (3) J.L.J.R. 413, especially in paragraph No. 5, as under:
5. Admittedly in partition suit No. 7/1955 a final decree was prepared and the land in question was allotted to the petitioner in the said partition suit and the present respondent Nos. 4 to 6 or their purchaser in interest were defendants being defendant No. 9, defendant No. 20-D and defendant No. 22-H. The said final decree was executed and delivery of possession of the land was effected in respect of the aforesaid land. On the basis of the aforesaid decree and order passed by the Civil Court, Zamabandi was opened in the name of the petitioner in 1979. In my opinion, therefore, the Additional Collector was not justified in cancelling the said Zamabandi after 12 years that too mainly on the ground of pendency of one partition suit filed at the instance of one Baren Pandey claiming his share. Even assuming that Baren Pandey was a co-sharer and without impleading him in the partition suit a decree was passed, a partition decree may be set aside, modified or reviewed but so long as the final decree passed in the earlier partition suit stands, the Additional Collector could not have cancelled the opening of the Zamabandi ignoring the final decree followed by delivery of possession. Besides the above fact it is well-settled that a Zamabandi opened after holding inquiry and which continued to run for a petty long time, it should not be cancelled at the instance of interested person without obtaining a decree or order from Civil Court of competent jurisdiction. In the case of Dilip Kumar Mahto Petitioner v. State of Bihar and Ors. Respondents 2001 (1) J.L.J.R. 75 this question was considered by a Bench of this Court. It was held and observed:
It has not been disputed by the respondents that mutation was effected in favour of the petitioner in the year 1978 and for the last 20 years the petitioner's name was running in revenue record and he has been paying rent and taxes to the State of Bihar. In such circumstances, the revisional authority was not justified in passing impugned order for cancellation of Zamabandi running in the name of the petitioner. At best, revisional authority could have asked the respondents to go to the Civil Court for adjudication of their title and possession. It is well settled that Zamabandi running in the name of particular person for several years cannot be cancelled at the instance of the claimant in summary proceeding. The proper course for the claimant is to move to civil court of competent jurisdiction for proper relief. In this connection reliance may be placed of two Division Bench Judgments in the case of 'Harihar Singh v. Addl. Collector 1978 BBCJ 323 and in the case 'Jamaluddin Ahmad v. S.D.O. Khagaria and Ors. 1979 BBCJ 605.
(Emphasis supplied)
Thus, in view of the aforesaid decisions also, the order, passed by the Deputy Commissioner, Hazaribagh, dated 8th November, 2008 (Annexure 5 to the memo of petition) deserves to be quashed and set aside.
(vii) It is submitted by the learned Counsel for respondent Nos. 5, 6 and 7 that there was an oral partition somewhere in the year, 1969. When this Court raised a query that is there any evidence with respondent Nos. 5, 6 and 7 for this submission, the answer is that they do not have any evidence for this oral partition. Thus, such a highly disputed question of fact has been accepted by the Circle Officer as well as by the Deputy Commissioner, Hazaribagh. Even today, learned Counsel for respondent Nos. 5, 6 and 7 is unable to point out anything to this Court about the so-called oral partition, which has taken place in the year, 1969 between Ugan Mahto and Ram Tahal Mahto, who are the joint owners of the property, in question, as per the revenue entries of the property, in question.
5. As a cumulative effect of the aforesaid facts and reasons, I hereby quash and set aside the order, passed by the Deputy Commissioner, Hazaribagh, dated 8th November, 2008 in Mutation Revision No. 1 of 2008 (Annexure 5 to the memo of petition) and I hereby direct the Deputy Commissioner, Hazaribagh, to decide the said revision application afresh, in accordance with law, as earlier as possible and practicable, preferably within a period of sixteen weeks from the date of receipt of a copy of the order of this Court.
6. This writ petition is, accordingly, allowed and disposed of, but without any order as to costs.