Jitwahan Kumhar v. The State of Jharkhand

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioners For the State For Respondent No. 6 Oral Order ----- : Mr. Rajesh Kumar, Advocate : Mr. Prashant Kr. Rai, AC to SC (L&C)-I : Mr. J.J. Sanga, Advocate ----- 09 / Dated : 09.04.2024 1. The petitioners are aggrieved by the order dated 24.04.2007 passed in SAR Revision No. 80 of 2006, whereby and where under, the order of restoration in favour of respondent no. 6 in SAR Case No. 41/1994-95 has been affirmed. 2. It is not in dispute that the land in question measuring an area of 0.34 acres under Plot No. 1522, Khata No. 48 and an area of 0.50 acres of Plot No. 1521, Khata No. 165 was recorded in the name of Sadhu Munda and others and the nature of land was Bakast Bhuihari Panhai as per the entry made in the Record of Rights published in the year 1935 in revisional survey.

3. The case of the petitioners is that Sadhu Munda settled the land of Khewat No. 2 Khatiyan No. 148 of Plot No. 127 measuring an area 2.80 acres in favour of Balak Mahto (father of petitioner no. 1), Hari Mahto (since dead) and Jitwahan Kumhar (petitioner no. 2) in 1945 and put them in possession but executed Sada Hukumnama on 09.04.1953.

4. It is further case of the petitioners that Budhu Mahto, Son of Sadhu Munda by hukumnama dated 15.12.1955 settled the land of Khewat No. 02, Khata No. 148, area 1.80 acres of Plot No, 1516 in favour of Balak Kumhar (father of Petitioner no.1).

5. On the point of possession, it is submitted by learned counsel for the petitioners that it has been admitted in the pleadings by the answering respondent in the 1 SAR Case that the petitioners were in possession for almost 30 years (Annexure-2) but the SAR Case has been filed in 1994-95 after about 40 years of execution of hukumnama which cannot be accepted to be reasonable time by filing the restoration case in view of the ratio laid down by the Hon’ble Supreme Court in (2004) 8 SCC 340 (Situ Sahu & Ors. Vs. State of Jharkhand & Ors.).

6. Learned counsel for the private respondent has defended the impugned order and submitted that the nature of land was Bakast Bhuihari Panhai which is not transferable in view of Section 48 of the CNT Act. Any transfer in violation is amenable to restoration in terms of Section 71A of CNT Act. It is further argued that the possession of the petitioners was illegal and for not more than 30 years, which will be apparent from the application for restoration filed by the private respondent Budhu Munda on 24.03.1994 in which restoration was allowed and the private respondent is continuing in possession since then over the said land.

7. The appeal and revision preferred by the petitioners was rejected and the entry of the name of Budhu Munda has been made in Register-II and is paying rent to the State. It is also argued in support of the possession of the private respondent that in the land acquisition for construction of a Ring Road, notice was issued to the respondents and compensation was also paid for acquisition of land (Annexure-H to the counter affidavit).

8. After having considered the submissions advanced on behalf of both sides and the materials on record, this Court is of the view that in exercising power under Article 226 of the Constitution of India, this Court cannot enter into the contested question of facts. In the present case, the petitioners claim to be in possession on the basis of hukumnamas executed by the recorded landlord, whereas the private respondent claims that the possession was illegal and after restoration they are in continuous possession of the same for almost 30 years and have been paying rent to the State. Hukumnama is a settlement which is in the nature of agricultural lease, and can be effected only by a registered indenture. However, it has been accepted by the Full Bench of Patna High Court in Mt. Ugni v. Chowa Mahto, AIR 1968 Pat 302 at page 307 2

17. The unregistered hukumnama, though inadmissible, could be looked into to show the nature and character of possession. Oral evidence of the terms of the lease will not be admissible; but, independent of the hukumnama, the rent receipts themselves indicate the rate of rent, the area and the nature of the right of the lessee. Hence, independent of the hukumnama, the terms of the raiyati settlement were inferable from other pieces of evidence, which were rightly relied on by the lower appellate court. There is no error of law that would justify our interference in second appeal.

9. In the present case except for the unregistered hukumnama there is no other document on record to show that Petitioners came into possession after the said hukumnama. On the record of case, there is no pleading that after vesting, rent was fixed, the petitioners were accepted as tenant and rent was being accepted by the State on their behalf. In the absence of any document of possession illegal possession of the Petitioner cannot be anything more than that of a trespasser. Under Section 48 of the CNT Act there is restriction on transfer of Bhuinhari tenure in the same manner and on the same extent as an aboriginal raiyat may transfer his right in the holding under Section 46 of the C.N.T Act. So any transfer by settlement was amenable to the exercise of power of restoration under Section 71A. Under the circumstance, this Court does not find any merit in the writ Petition, which, accordingly, stands dismissed. Pending I. A., if any, stands disposed of. AKT/Satendra Uploaded (Gautam Kumar Choudhary, J.) 3