Patna High Court
Shyama DeviversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
Holding
A writ court cannot decide disputed factual questions of possession and must refer the matter to a competent forum.
Summary
Shyama Devi, an elderly widow, claimed possession of two parcels of land inherited from her father and cultivated them for her livelihood. The District Institute of Education and Training (DIET) asserted that the land formed part of its campus and had been in its possession, leading to a dispute. The writ petition sought a direction under Article 226 to prevent the institute from interfering with her peaceful possession. The Single Judge held that the matter involved a disputed question of fact and directed the appellant to approach the Collector for a summary proceeding. On appeal, the Division Bench affirmed that writ courts cannot adjudicate contested factual issues and upheld the Single Judge’s order, disposing of the intra‑court appeal.
Issues considered
- Whether a disputed question of fact relating to possession of land can be determined by a writ court under Article 226
Legislation cited
- Code of Criminal Procedure, 1973 — s. 144
- Constitution of India — s. Article 226
Subjects
- land possession
- writ jurisdiction
- Article 226
- disputed facts
- intra-court appeal
- letters patent appeal
- constitutional rights
- civil remedy
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1014 of 2023
In
Civil Writ Jurisdiction Case No.4805 of 2020
======================================================
Shyama Devi, aged about 65 years, Gender-Female, Daughter of Late Dwarka
Prasad Mandal, Wife of Jaynarayan Mandal, Resident of Village - Tikapatti,
Ward - 18, Dhusar Tikapatti, P.S. - Tikapatti, District - Purnea.
... ... Appellant
Versus
1. The State of Bihar
2. The Principal Secretary, Department of Education, Government of Bihar,
Patna.
3. The Collector-cum-District Magistrate, Katihar.
4. The Additional District Magistrate, Katihar.
5. The Deputy Collector Land Revenue, Katihar.
6. The Superintendent of Police, Katihar.
7. The Sub Divisional Magistrate, Katihar.
8. The Circle Officer, Sameli, District - Katihar.
9. The Station House Officer, Falka (Pothia), District - Katihar.
10. The Principal, District Institute of Education and Training (D.I.E.T.),
Katihar.
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Raghvendra Kumar Singh, Advocate
For the Respondents : Mr. Md. Khurshid Alam, A.A.G. 12
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)
5 28-04-2026 Heard learned counsel for the appellant and learned
counsel for the respondents.
2. The present intra court appeal has been preferred
against the judgment and order dated 20.07.2023 passed by the
learned Single Judge in C.W.J.C. No. 4805 of 2020, whereby
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the writ application filed by the appellant was disposed of.
3. The following was the relief sought for by the writ
petitioner before the learned Single Judge:
“ The present writ petition has been filed for
directing the respondent no.10 not to
interfere with the peaceful possession of the
piece of land inherited and possessed by the
petitioner and, further, for a direction upon
the State Respondents to safeguard and
protect the Constitutional Right of the
petitioner.”
4. The following was the submissions of the parties
before the learned Single Judge:
“Counsel for the petitioner submits that
the land situated in Mauja-Chandpur, Thana
No. 270, Khata No. 649, Khesra No.-4333-
4334, total area measuring 1 Acre 13
Decimal and another land of Mauja-
Chandpur, Thana No.-270, Khata No. 4331-
4332, total area measuring 1 Acre 12
Decimal were recorded in the name of
petitioner’s father who died on 23.11.1986
and after his death, they came into the
possession of the said land.
Counsel for the petitioner further submits
that respondent No. 10 is a training
institution, namely, District Institute of
Education and Training (D.I.E.T.), Tikapatti
(Katihar) in whose name, the ancestor of the
petitioner and other co-villagers have
donated 6 Acre 29 Decimal of land. Counsel
submits that the raiyatiland of the petitioner
is being disturbed continuously by
respondent No. 10. He submits that the said
land belongs to petitioner and there are
different records by which he is showing that
it is his land.
Counsel for the respondent has filed
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counter-affidavit as well as supplementary
counter-affidavit in which it has been
submitted that the land in question has been
claimed by the Training Centre, Tikapatti
and the report of the Circle Officer, Sameli,
Katihar which has been prepared upon
perusal of Register-2 as well as upon the
spot verification indicates that in the
registered column by red pen ‘training
center, Tikapatti’ for the land in question
has been written. It has also come that the
name of the petitioner is there and along
with his name by red pen the name of
training center, Tikapatti has also been
entered.”
5. The learned Single Judge after considering the
submissions of the parties had made the following observation:
“ Upon hearing the argument of both the
parties, it transpires that it is a disputed
question of facts which cannot be decided by
this Court and, therefore, petitioner is
directed to file his representation before the
Collector, Katihar who upon going through
the documents produced by both the parties
as well as after verifying the actual physical
possession and also after taking evidence in
summary proceeding shall decide this matter
within 4 months from the date of
representation filed by petitioner.”
6. The brief facts of the case are that the father of the
appellant, namely Dwarika Prasad Mandal, was recorded as a
Raiyat in the cadastral survey in respect of land admeasuring 1
Acre 13 Decimal situated at Mauja- Chandpur, Thana No. 270,
Khata No. 649, Khesra Nos. 4333-4334. He also jointly held
another parcel of land admeasuring 1 Acre 12 Decimal under
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Mauja- Chandpur, Thana No. 270, Khata No. 1121, Khesra Nos.
4331-4332 along with Bhukhal Mandal and Ugri Mandal. It is
stated that upon the death of the appellant’s father on
23.11.1986, the appellant came into possession thereof,
continuing to cultivate the land for her livelihood. It is further
submitted that adjacent to the appellant’s land, an institute in the
name of District Institute of Education and Training, Tikapatti,
Katihar is functioning over land admeasuring 6 Acre 29
Decimal under Mauja-Chandpur, Khata Nos. 1190 and 1991.
The said institute is also stated to be in possession of additional
parcels of land situated in Mauja-Dhusar Tikapatti, which were
gifted by villagers in favour of the Governor of Bihar and duly
registered in the cadastral survey in the year 1958.
7. It is alleged that the respondent no. 10 with mala
fide intentions by letter dated 08.02.2014 requested the Circle
Officer, Sameli, District Katihar (respondent no. 8), to prohibit
cultivation on land claimed to fall within the boundary of the
said institute. Subsequently, by letter dated 01.03.2014,
respondent no. 10 is stated to have requested initiation of
mutation proceedings in respect of the land alleged to be in
possession of the institute. In these circumstances, the writ
petition came to be filed seeking a direction upon the
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respondents not to interfere with the peaceful possession of the
appellant over the land inherited and possessed by her.
8. Learned counsel for the appellant submits that
upon the death of the appellant’s father, the appellant came into
possession of the land in question and has been cultivating the
same for her livelihood. It is further contended that the learned
Single Judge failed to appreciate that the writ petition had been
instituted seeking issuance of an appropriate writ directing
respondent no. 10 not to interfere with the appellant’s peaceful
possession over the land inherited and possessed by her. It is
also submitted that the appellant is seeking protection of her
constitutional rights through the said proceedings.
9. Learned counsel for the respondents submits that
the land in question has all along been in possession of the
institute concerned. However, recently the appellant and some
unscrupulous elements have starting disturbing the peaceful
possession of the institute over the land in question. It is further
submitted that none of the grounds raised by the appellant are
tenable. It is also submitted that the nature of the dispute is such
that it can only be effectively resolved at the ground level, and
therefore, the learned Single Judge has rightly directed the
appellant to approach the Collector, Katihar. Learned counsel
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for the respondents, further, referred to paragraph 7 to 12 of the
counter affidavit on behalf of respondent no. 10, which are
reproduced hereinbelow:
“7. That it is humbly stated that
the present appeal has been filed with an
ulterior motive to stall the proceeding before
the Collector, Katihar, who has been directed
to decide the proceeding after verifying the
actual physical possession and also after
taking evidence in summary proceeding.
It is pertinent to mention here that
in pursuance of the direction contained in the
impugned order, the learned court of District
Magistrate, Katihar has instituted a case
bearing Misc. Case No. 73 of 2023-24
(Shyama Devi Vs. State of Bihar & Ors) and
a notice has been issued to the answering
respondent vide memo no. 1989 dated
28.08.2023 to appear with relevant
documents.
8. That it is stated that the subject
matter of the connected writ application was
land admeasuring 1 acre 13 decimal under
Mauja-Chandpur, Thana No. 270, Khata No.
649, Khesara No. 4333-4334 and also jointly
claiming land admeasuring 1 Acre 12
Decimal under Mauza- Chandpur, Thana No.
270, Khata No. 1121, Khesra No. 4331-4332
with one Bukhai Mandal and Ugri Mandal,
which the appellant claimed to be her.
9. That it is humbly stated that the
institute in question had been established in
the year 1948 in the name of ‘Teachers
Training College’ on and over the land
donated by the villagers of village-Takapatti.
10. That it is humbly stated that
during the passage of time, several buildings
were constructed over the land in question
like Hostel, Teacher’s residence, Principal’s
residence etc.
11. That it is important to mention
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here that the land in question were and is
under the possession of the institute in
question. However, recently the appellant
and some unscrupulous elements have
starting disturbing the peaceful possession of
the institute over the land in question.
12. That in this connection, it is
further stated that the illegal activity of the
appellant and some others have disturbed the
academic atmosphere of the institute in
question particularly with respect to a lady’s
hostel constructed over the land in question,
recently. The answering respondent is facing
difficulty in maintaining the cordial
academic atmosphere in the institute in
question.”
10. The limited issue that arises for consideration in
the present intra-court appeal: Whether a disputed question of
fact relating to possession of land in question, can be
determined by the Writ Court ?
11. Upon perusal of the materials available on
record, it is apparent that the present controversy does not
merely involve a pure question of law, but is deeply entangled
with disputed questions of fact, particularly concerning the issue
of possession over the land in question. The parties have
advanced rival claims, each asserting possession over the land in
question. Such competing claims would necessarily require a
closer scrutiny of the evidence on record. The nature of the
dispute demands a thorough examination of the documents as
well as a verification of the actual physical possession. It is
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important to take note of the decision in the case of Sohan Lal
v. Union of India, reported in (1957) 1 SCC 439, wherein the
Hon’ble Supreme Court has observed the following:
“6. We do not propose to enquire into the
merits of the rival claims of title to the prop-
erty in dispute set up by the appellant and Ja-
gan Nath. If we were to do so, we would be
entering into a field of investigation which is
more appropriate for a civil court in a prop-
erly constituted suit to do rather than for a
Court exercising the prerogative of issuing
writs. There are questions of fact and law
which are in dispute requiring determination
before the respective claims of the parties to
this appeal can be decided. Before the prop-
erty in dispute can be restored to Jagan Nath
it will be necessary to declare that he had ti-
tle in that property and was entitled to re-
cover possession of it. This would in effect
amount to passing a decree in his favour. In
the circumstances to be mentioned hereafter,
it is a matter for serious consideration
whether in proceedings under Article 226 of
the Constitution such a declaration ought to
be made and restoration of the property to
Jagan Nath be ordered.”
12. Moreover, in the case of State of U.P. v. Ehsan,
reported in (2024) 14 SCC 269, the Hon’ble Supreme Court has
observed that although the existence of an alternative remedy
does not operate as an absolute bar to the exercise of writ
jurisdiction, yet where the dispute involves seriously contested
questions of fact which cannot be satisfactorily adjudicated on
the basis of affidavits and the material available on record, the
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Writ Court ought not to exercise its jurisdiction. In such
circumstances, the appropriate course is to relegate the parties to
a competent forum for proper adjudication. The relevant
paragraph is reproduced hereinbelow:
“28. We are conscious of the law
that existence of an alternative remedy is not
an absolute bar on exercise of writ
jurisdiction. More so, when a writ petition
has been entertained, parties have exchanged
their pleadings/affidavits and the matter has
remained pending for long. In such a
situation there must be a sincere effort to
decide the matter on merits and not relegate
the writ petitioner to the alternative remedy,
unless there are compelling reasons for doing
so. One such compelling reason may arise
where there is a serious dispute between the
parties on a question of fact and
materials/evidence(s) available on record are
insufficient/inconclusive to enable the Court
to come to a definite conclusion.
30. ... … And if the writ court
finds it difficult to determine such question,
either for insufficient/inconclusive
materials/evidence(s) on record or because
oral evidence would also be required to form
a definite opinion, it may relegate the writ
petitioner to a suit, if the suit is otherwise
maintainable.”
13. Similarly, in the case of Shubhas Jain v.
Rajeshwari Shivam, reported in (2021) 20 SCC 454, it has been
observed that:
“25. It is well settled that the High Court
exercising its extraordinary writ jurisdiction
under Article 226 of the Constitution of India,
does not adjudicate hotly disputed questions
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of facts……”
14. It is a well-settled principle of law that issues
involving seriously disputed questions of fact are not suited for
adjudication in writ jurisdiction under Article 226. The writ
jurisdiction, though wide in its amplitude, is not designed to
resolve factual controversies where the parties are at variance on
foundational facts. Proceedings under Article 226 are not
intended to substitute a full-fledged trial, particularly in cases
where determination of rights hinges upon contested questions
of fact requiring detailed evidence. The Writ Court, in exercise
of such jurisdiction, does not ordinarily engage in a detailed
fact-finding inquiry or attempt to conclusively determine
competing factual claims. Where the dispute turns upon
contested facts that cannot be satisfactorily resolved on the basis
of the material available on record, the Court would ordinarily
refrain from exercising its writ jurisdiction and would instead
leave the parties to seek redress before a competent forum. In
the present case, the core issue revolves around the question of
possession of the land in question, which is clearly a matter of
serious factual dispute between the parties. Each side asserts its
own claim, and the resolution of such a dispute would
necessarily require a fuller and more appropriate adjudicatory
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process. In that view of the matter, the learned Single Judge was
justified in holding that the writ petition, involving disputed
questions of fact not amenable to determination under writ
jurisdiction, ought to be pursued before an appropriate forum.
15. Further, the appellant has been unable to
substantiate the grounds of the present appeal to dislodge the
findings of the learned Single Judge. The Scope of a Letters
Patent Appeal is limited, and normally in absence of cogent
reasons, Division Bench would not differ from a finding of fact
recorded by learned Single Judge. The relevant paragraph of the
Judgment of the Hon’ble Supreme Court in Umabai v. Nilkanth
DhondibaChavan reported in (2005) 6 SCC 243, is reproduced
as under:
“52. It may be, as has been held in Asha
Devi[(1974) 2 SCC 492] that the power of
the appellate court in intra-court appeal is
not exactly the same as contained in Section
100 of the Code of Civil Procedure but it is
also well known that entertainment of a let-
ters patent appeal is discretionary and nor-
mally the Division Bench would not, unless
there exist cogent reasons, differ from a find-
ing of fact arrived at by the learned Single
Judge. Even as noticed hereinbefore, a court
of first appeal which is the final court of ap-
peal on fact may have to exercise some
amount of restraint.”
16. It is also relevant to take note of the Judgment of
the Hon’ble Supreme Court in Narendra & Co. (P) Ltd. v.
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Workmen reported in (2016) 3 SCC 340, wherein the court held
that merely on the ground that another view is possible, the
order of the Single Judge should not be interfered with. The
relevant paragraph of the said judgment is reproduced as under:
“5. …..Be that as it may, in an intra-court
appeal, on a finding of fact, unless the Appel-
late Bench reaches a conclusion that the
finding of the Single Bench is perverse, it
shall not disturb the same. Merely because
another view or a better view is possible,
there should be no interference with or dis-
turbance of the order passed by the Single
Judge, unless both sides agree for a fairer
approach on relief.”
17. In view of the discussions made above, the
approach adopted by the learned Single Judge does not warrant
any interference in the present intra-court appeal. The reasoning
proceeds on settled principles governing the exercise of writ
jurisdiction under Article 226, particularly where the matter
involves disputed questions of fact not amenable to
determination in such proceedings. We, therefore, find no
infirmity or illegality in the impugned order.
18. If so advised, the appellant may make an
appropriate application in respect of possession over the land in
question under Section 144 of the Cr.P.C., now corresponding to
Section 163 of the B.N.S.S., 2023, or before a competent
authority, with a liberty to place all the documentary evidence as
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well as ocular evidence during the proceeding. The same shall
be decided preferably within a period of nine months from the
date of making of such application.
19. With the aforesaid liberty, the present intra court
appeal stands disposed of.
20. Pending application (s), if any, shall also stand
disposed of.
(Sudhir Singh, J)
( Shailendra Singh, J)
U.K./-
B.K.S./A.F.R.
U
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