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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

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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