The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) L.P.A No. 132 of 2023 Sumit Kumar Tirkey, aged about 30 years, S/o late Jagat Pal Oraon, resident of Jhatani Toly, PO- Sisai, PS- Sisai, District – Gumla (Jharkhand) presently residing at Shiv Shakti Bhandar, Kusum Vihar, Road No. 7-D, PO- Morabadi, PS- Bariatu, District – Ranchi- 834008(Jharkhand) Versus ... … Appellant 1. Kashi Nath Sahu, s/o late Mohan Sahu 2. Bimla Devi, w/o late Tulsi Sahu 3. Manoj Kumar Sahu, s/o late Tulsi Sahu All residents of Village – Ambera, PO & PS – Bharno, District – Gumla (Jharkhand) 4. The State of Jharkhand 5. The Deputy Commissioner, Gumla PO & PS- Gumla, District Gumla 6. The Charku Sahu, s/o late Lakshu Sahu, resident of Village – Koenjali, Lohratoli, PO & PS – Bharno, District – Gumla (Jharkhand) 7. Nand Kumar Sahu, s/o Karmu Sahu, resident of Village – Koenjali, Lohratoli, PO & PS – Bharno, District – Gumla, PIN 835207 (Jharkhand) … ... Respondents CORAM: HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE NAVNEET KUMAR For the Appellant For the State For the Respondents : Mr. Sachin Kumar, AAG-II : Mr. Sunil Kumar, Advocate : Mr. Amit Kumar Das, Advocate Per, Shree Chandrashekhar, A.C.J I.A No. 4000 of 2023 20th March 2024 This interlocutory application has been filed for condoning the delay of 77 days in preferring L.P.A No. 132 of 2023. 2. After hearing the learned counsel for the appellant and considering the facts and circumstances of this case and also after going through the cause shown in this interlocutory application seeking condonation of delay, we find sufficient grounds to condone the delay of 77 days and, accordingly, I.A No. 4000 of 2023 is allowed. L.P.A No. 132 of 2023 3. Sumit Kumar Tirkey claiming himself son of late Jagat Pal Oraon has filed this Letters Patent Appeal to challenge the order passed by the writ Court in W.P.(C) No. 722 of 2011. 2 L.P.A No. 132 of 2023 4. By an order dated 1st December 2022, the writ Court interfered with the order dated 27th October 2009 passed by the Deputy Commissioner at Gumla by virtue of which the Circle Officer made an order for correction in the revenue records in the name of the father of the appellant. 5. Briefly stated, the father of appellant made an application on 27th August 2009 for correction in the revenue records through mutation by virtue of registered sale deed dated 3rd August 2009. Upon filing of such an application, the Circle Officer directed the Halka Karamchari to submit a report. This also appears from the proceeding in Mutation Case No. 150R27 of 2009-10 that Aam Ishtehar was issued but no objection was registered against the application for mutation filed by the father of the appellant. However, a glance at the proceeding dated 28th October 2009 discloses that mutation in respect of the subject property was recorded in the revenue records in the name of Mohan Sahu son of Bal Govind Sahu. 6.
Legal Reasoning
Tulsi Sahu and Kashi Nath Sahu came to this Court in W.P.(C) No. 722 of 2011 to challenge the order for correction in the revenue records in the name of Jagat Pal Oraon, the father of the appellant. During pendency
Decision
of the writ petition, Tulsi Sahu passed away and his wife Bimla Devi and son Manoj Kumar Sahu were substituted as his legal heirs. The writ Court having found that long standing Jamabandi running in the name of the writ petitioners and their predecessors could not have been cancelled without due notice upon them, passed the following directions: “Considering the rival submissions of the parties, looking into the facts and circumstances of the case, it appears that in the State of Jharkhand, the revenue authorities are not following the procedure mentioned in the Bihar Tenants Holding (Maintenance of Record) Act 1973 and thus some confusion has cropped up before this Court. It is made clear that a long standing jamabadi running in the name of person cannot be changed without due notice to the person in whose name the jamabandi is existing. Apart from that once the civil court has decided the issue in favour of person, it is incumbent upon the revenue authority to open or continue his jamabandi over the said land without any interruption till the order of the civil court is set aside by any appellate court or revisional court. Accordingly, the instant writ petition is hereby allowed. The respondent- Deputy Commissioner, Gumla is directed to issue rent receipt by continuing the same in favour of the petitioners with respect to Khata No.37, Plot No.136, area 0.99 decimals of Village- Bisrampur, District- Sisai, District-Gumla in the name of Mohan Sao and their legal heirs within a period of three weeks from the date of production of the copy of the order. Let a copy of this order be communicated to the Deputy Commissioner, Gumla through FAX/e-mail.” 3 L.P.A No. 132 of 2023 7. Aggrieved by the aforesaid direction of the writ Court, this Letters Patent Appeal has been filed primarily on the ground that the writ Court could not have issued a direction for issuance of rent receipts in the name of Tulsi Sahu and Kashi Nath Sahu. Mr. Amit Kumar Das, the learned counsel for the appellant refers to the judgment in Title Suit No. 23 of 1990 to submit that the rights as claimed by the writ petitioners do not vest in them as discussed in the judgment rendered in the suit. The learned counsel for the appellant further submits that the registered sale deed dated 3rd August 2009 carries a presumption of validity and such a document could not have been ignored by the Circle Officer to order mutation in the name of the father of the appellant. 8. The Bihar Tenants Holdings (Maintenance of Records) Act, 1973 has been enacted with a view to maintain up-to-date records of holdings of the raiyats in the State of Bihar and the matters connected therewith. It lays down a procedure for maintaining continuous khatian, tenant’s ledger register and village maps by the Anchal Adhikaries. Under section 4, the Registering Authority is required to give notice of transfer and registration to the Circle Officer. Similarly, the Civil Courts are also required to give notice of delivery of possession to the decree holder or auction purchaser or of decree for partition or for foreclosure to the Circle Officer, under section 5. Similar provisions for giving notice to the Circle Officer by the Certificate Officer in case of delivery of possession to the auction purchaser and the Collector regarding notice of acquisition under the Land Acquisition Act, 1894 are also provided under this Act. Furthermore, this is also provided under this Act that Mukhiya, Circle Inspector or Halka Karamchari as the case may be is required to report cases of partition or intestate or acquisition by any other means to the Circle Officer. 9. Section 14 of the Tenant’s Holdings Act provides the manner of disposal of mutation cases, as under: “14. Requisition and disposal of mutation cases.—(1) On receipt of notice under. Sections 4, 5, 6, 7, 8, 9 and 10 or an application under Sections 11 and 12 or a report under Section 13, the Anchal Adhikari shall start a mutation proceedings and after entering it in the mutation case register which shall be maintained in the prescribed form, shall cause such enquiry to be made as may be deemed necessary. (2) The Anchal Adhikari shall issue a general notice and also give notice to the parties concerned to file objection, if any, within fifteen days of the issue 4 L.P.A No. 132 of 2023 of the notice. On receipt of objection, if any, the Anchal Adhikari shall give reasonable opportunity to the parties concerned to adduce evidence, if any, and of being heard and dispose of the objection and pass such orders as may be deemed necessary, (3) In cases in which no objections are received the Anchal Adhikari shall dispose them of within one month of the date of expiry of filing objection and in cases in which objections are received, the Anchal Adhikari shall dispose them of in not more than three months from the date of expiry of the period of filing objections.” 10. Section 14 of the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 provides that upon filing of an application for mutation the Circle Officer shall cause an enquiry in the matter and upon consideration of the objection, if any, pursuant to Aam Ishtehar shall pass an appropriate order. Sub-section (2) mandates that a personal notice to the person in whose favor the Jamabandi has been recorded in the revenue records. The Circle Officer in the proceeding dated 28th October 2009 has recorded that no objection was received in response to the Aam Ishtehar. However, there is no mention about the issuance and service of notice upon the writ petitioners or their legal heirs and while so the order passed by the Circle Officer became vulnerable and rightly set aside by the writ Court. No doubt a registered document shall have a presumption of validity but then the Circle Officer could not have ignored the mandatory provisions under sub-section (2) to section 14 of the Bihar Tenants Holdings (Maintenance of Records) Act. The dispute between the parties necessarily pertains to share in the joint Hindu family property and a decision in this regard can only be rendered by the Civil Court of competent jurisdiction. Just for the sake of fullness, we would indicate that the decision in Title Suit No. 23 of 1990 does not conclusively decide the right, title and interest or the parties in the present proceedings. 11. This is too well settled that the mutation proceedings are merely in the nature of fiscal inquiries and the orders passed by the revenue authorities do not decide right, title and interest in the landed property. In “Nirman Singh and others v. Lal Rudra Partab Narain Singh and others” AIR 1926 PC 100, Lord Atkinson observed that the proceedings for mutation of names are not judicial proceedings in which the title suit and the proprietary rights in the immovable property are determined. In “Nirman Singh” the Privy Council observed as under: “The perusal by their Lordships of the judgment of the Court of the Judicial Commissioner of Oudh leads their Lordships to think that it is to a great degree based on the mischievous but persistent error that the proceedings for the mutation of names are judicial proceedings in which 5 L.P.A No. 132 of 2023 the title to and the proprietary rights in immovable property are determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with the greater confidence that the revenue for it will be paid.” 12. In “State of Gujarat v. Patil Raghav Natha” (1969) 2 SCC 187 the Hon’ble Supreme Court observed that wherever there is a dispute as regards title of the occupant of the landed property the appropriate course for the revenue authority would be to refer the parties to a competent Court and not to decide the question of title himself. 13. under: In “Patil Raghav Natha” the Hon’ble Supreme Court held as “14. We are also of the opinion that the Commissioner should not have gone into the question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent court and not to decide the question of title himself against the occupant.” 14. For the foregoing reasons, this Letters Patent Appeal is dismissed with liberty to the appellant to approach the Civil Court for a declaration as to his right, title and interest in the subject property. (Shree Chandrashekhar, A.C.J.) (Navneet Kumar, J.) Jharkhand High Court, Ranchi Dated: 20th March 2024 Amit N.A.F.R