The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 5204 of 2001 With I.A. No. 4439 of 2014 Mrs. Xaverina Surin wife of Stonish Vireat Surin (deceased) Resident of village Samlong, Police Station Namkum, District Ranchi (Jharkhand) Petitioner … … Versus 1.The State of Jharkhand 2. The Commissioner Chotanagpur South Division, at Ranchi 3. The Deputy Commissioner, Ranchi 4. The Deputy Collector, Land Reforms, Ranchi 5. The Special Officer, S.A.R. Ranchi 6. (i) Most. Florence Aind wife of Franklin Aind (ii) Maclin Aind, S/o Franklin Aind resident of village Samlong, P.S. Namkum, Dist. Ranchi, Jharkhand … … Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Respondents For the Intervener --- : Mr. Rohit Roy, Advocate : Mr. Vibhor Mayank, Advocate : Ms. Apoorva Pathak, Advocate : Mr. H.K. Mahto, Advocate : Ms. Ahilya Mahto, Advocate : Mr. Neeraj Kishore, Advocate --- 18/23.01.2023 Learned counsel for the parties are present. I.A. No. 4439 of 2014 2.
Legal Reasoning
Learned counsel for the intervener Mr. Neeraj Kishore seeks permission to withdraw the interlocutory application being I.A. No. 4439 of 2014 which was filed by Mr. Sohan Kumar Aind. He submits that his full brother namely Franklin Aind is already on record and it is not in dispute that it was only Franklin Aind who has filed the application for restoration under Section 71-A of Chotanagpur Tenancy Act. Counsel for the petitioner as well as counsel appearing on behalf of Franklin Aind does not object for prayer for withdrawal of I.A. No. 4439 of 2014. The learned counsel for the intervenor submits that as of now, widow and son of Frankling Aind are contesting the case who have been substituted during the pendency of this writ petition. 3. Considering the aforesaid submission, I.A. No. 4439 of 2014 is dismissed as not pressed. W.P. (C) No. 5204 of 2001 2 4. Heard Mr. Rohit Roy, learned counsel appearing on behalf of the petitioner along with Mr. Vibhor Mayank and Ms. Apoorva Pathak, Advocates. 5. Heard Mr. H.K. Mahto, learned counsel appearing on behalf of the private respondent along with Ms. Ahilya Mahto, Advocate. 6. 7. This writ petition has been filed for the following reliefs:- Nobody appears on behalf of the State. “For quashing the orders as contained in Annexure-8, Annexure- 9 and Annexure-10 by which and under which the learned respondents nos. 2,3 and 5 have ordered to restoration of possession of an area of 0.56 Acres of land to respondent No. 6 issuing notices of show cause upon the respondents concerned as to why this Hon’ble Court may not quash the orders as contained in those annexures-8,9 and 10 and on receipt of the rule, if any your lordships after hearing the parties be pleased to quash the orders as contained in Annexure-8 and Annexue-9 and Annexure- 10 as the same is bad, illegal and without jurisdiction on the facts and circumstances of the present case.” Argument of the Petitioner. 8. Learned counsel for the petitioner submits that land of Khata No. 104, plot No. 674 and 675 measuring an area of 1.12 acres was originally recorded in the name of Ram Charan Munda, son of Bhudhu Munda, Sukhu Munda, son of Sudhu Munda and Jethua Munda, son of Bhokhro Munda and as per the case of the petitioners the recorded tenants were in separate possession and name of Sukhu Munda was recorded separately and independently of other raiyats. He submits that this case involves restoration of land measuring only 0.56 acres in favour of respondent No. 6 passed under the provisions of 71-A of Chotanagpur Tenancy Act, 1908. During the course of argument, the learned counsel has relied upon a list of dates to explain the sequence of events in connection with the property involved in the present case. a. In the year 1935, Sukhu Munda mortgaged the land in name of one Hulas Panna for a period of five years as recorded in finally published record of rights in the year 1935. b. Hulas Panna remained in possession till 1941 and thereafter vide registered sale deed No. 2013 dated 05.04.1941 (Annexure-2) , Sukhu Munda sold the land of 1.12 acres in favour of Hulas Panna and in the year 1942, the other two recorded tenants confirmed the aforesaid sale deed in favour of Hulas Panna by registered deed No. 23 of 1942 (deed not filed 3 with writ records). Consequently, Hulas Panna became a raiyat under the superior land lord. c. Deed No. 23 of 1942 has been referred to in subsequent registered deed of the year 1942 (annexure-3) whereby chhaparbandi right was created in favour of Hulas Panna by the then Zamindar at a salami of Rs. 336 and early rental of Rs. 33 and 10 anna. d. Thereafter there have been subsequent transfers in connection with the property. Hulas Panna sold the land to Nirupama Sarkar and Anupama Roy by registered deed of 1942(deed not filed with writ records). e. The purchasers partitioned the land amongst themselves and each got 0.5 acres of land. Anupama Roy sold the land to one Satyendra Nath Sarkar vide registered deed of sale being Sale deed No. 2713 of 1972(deed not filed with writ records). Satyendra Nath Sarkar became absolute owner and enjoyed the property by constructing another house over the same and he died leaving his widow Rewa Sarkar, his son Preyobrat Sarkar and daughter namely Chanda Dutta who all inherited the property. f. The heirs of Satyendra nath Sarkar sold the property to the petitioner vide three registered sale deeds executed between 1981 to 1983(deeds not filed with writ records). g. The petitioner got her name mutated and started making payment of Chhaparbandi rent for which rent receipts were also issued. The rent receipts are also not on record. The learned counsel submits that the petitioner is claiming 9. right, title, interest and possession over the property by virtue of registered documents. As per the aforesaid sequence, the earliest registered document was of the year 5.4.1941 executed by Sukhu Munda which was followed by another registered document in the year 1942 executed by the other two recorded tenants in favour of the predecessor in interest of the petitioner. 10. The learned counsel for the petitioner further submits that the cause of the action of the present case and subsequent developments are as follows:- (i) The father of the respondent No. 6 filed two cases being SAR Case No. 184 of 1976 against Anupama Roy and SAR Case No. 186 of 1976 against Nirupama Sarkar. However, in the said case the vendor of the petitioner was not made party as such they had no knowledge of the same. (ii) The vendor of the petitioner got knowledge when the respondent No. 6 took steps for delivery of possession. 4 (iii) The vendor of the petitioner filed SAR appeal No. 1979 R15/80-81 and the matter was remanded back by the Appellate Court. (iv) The learned LRDC vide order dated 16.05.1986 held that the matter involves disputed questions of title, which could be decided only by competent court of civil jurisdiction. Since LRDC had no special power under Section 71-A of the Chotanagpur Tenancy Act, the case was transferred to learned SDO who also held vide order dated 27.06.1988 that the matter was of civil nature and it could be resolved only through a competent court of civil jurisdiction. (v) order dated 27.06.1988 was challenged by the respondent No. 6 in appeal being SAR Appeal No. 47R16/1988-89 before the learned Additional Collector. (vi) The matter was again remanded vide order dated 28.01.1995 for fresh consideration by SDO. (vii) The SDO passed the impugned order dated 15.05.1998 for restoration of entire land of 1.12 acres including 0.56 acres of land of the petitioner. The petitioner preferred an appeal before the Deputy Commissioner which was dismissed vide order dated 16.07.2001. (viii) The revision filed by the petitioner was dismissed vide impugned order dated 28.08.2001 by a cryptic order by only recording that the petitioner got the land given to him as Jharpeshgi into Chhaparbandi whereas the petitioner had no such right. The revisional authority held that the very basis of creation of Jamabandi was wrong and hence dismissed the revision application. 11. The learned counsel for the petitioner submits that the Chhaparbandi was created by virtue of a registered document way back in the year 1942. The revisional authority has not considered any of the registered documents as mentioned above. He has also submitted that the Commissioner has also not considered the point of limitation involved in the present case. He has also submitted that once Chhaparbandi rights has been created, the provisions of Section 71-A of Chhotanagpur Tenancy Act has no applicability. He has referred to the judgment passed by this court reported in 1984 SCC Online Patna Ashwini Kumar Roy versus State of Bihar passed in CWJC No. 713 of 1980 (R) and also judgment reported in 2002 SCC Online Jhar. 552 Para 5. The learned counsel submits that the very fact that Chhaparbandi was already created, Section 71-A had no applicability and otherwise also the original recorded tenant were dispossessed much beyond 30 years from the date of filing of the 5 initial application for restoration of land. The learned counsel has also referred to Judgment passed by Hon’ble Supreme Court in the case reported in (2004) 8 SCC 340 and has submitted that it has been held that exercise of power under Section 71-A of Chotanagpur Tenancy Act cannot be exercised at any time and such exercise of power has to be done within a reasonable time. 12. He has also submitted that the right over the property was transferred to the petitioner through registered documents. The learned counsel submits that these aspects of the matter has not been considered by the learned commissioner and he has just referred to one document and passed the impugned order. Argument of the Respondents. 13. The learned counsel appearing on behalf of the respondents has submitted as follows:- I. Land in question is Plot no. 674 Area 0.69 Acre and Plot no. 675 Area 0.43 Acre Total 1.12 Acre under Khata no. 104 village Samlong P.S. Namkum District Ranchi was not the exclusive property of Sukhu Munda. This is apparent from the record of rights. Final decree (Annexure-B) was passed on 24- 06-1943 in Partition Suit no. 138/1942 between the recorded tenants. The decree was executed on 21-03-1944(Annexure 'C') in Execution case no. 363/1943. II. The so-called mortgage as claimed by the petitioner has no basis at all. Record of rights only records that in the year 1929 land was given as Jharpesgi, for a period of five years. He submits that record of rights does not record creation of any right in favour of Hulas Panna , over and above the right of Jharpesgi, which was only for a limited period of five years. Hulas Panna had no right to sell/transfer the property. Creation of Chhaparbandi has not been recorded in the record of rights. III. IV. The property in question was subject matter of partition in partition suit No. 138 of 1942 in which final decree was passed on 24.06.1943 and then the execution case No. 363 of 1943 was instituted. He has further submitted that all the three persons were in joint possession of the property prior to partition and therefore any deed could not have been executed by only one person. Any transaction during the pendency of the partition suit, is hit by the provisions of Section 52 of the Transfer of Property Act. V. There has been gross violation of provisions of Section 46 of the Chotanagpur Tenancy Act in as much as no permission was taken from the competent authority before transfer of property 6 through registered sale deed. He submits that in absence of due permission for transfer from the competent authority, the registered sale deed is of no use.
Decision
VI. The petitioner is referring to various deeds but the same are neither filed nor the details of such deeds have been mentioned in the writ petition. VII. Remarks Column of Khatian cannot discard the jointness of the land by the fact that in Partition Suit no. 138/1942, a decree for partition was passed, final decree was prepared, takhta allotted on 03-04-1941 which shows Sukhu Munda and Ramchandra remained joint in 1942-43. VIII. Hulas Panna was Zerpesgidar for five Years with effect from 21-02-1927 and his right extinguished after five years and she was not in possession of the disputed land in 1942, when Partition Suit was filed. He has also submitted that alleged Sale deed executed on 05.04.1941 by Suku Monda in favor of Hulas Panna is illegal and void. Land in dispute purchased by Mrs. Hulas Panna from one Sukhu Munda while the property was joint property of Khatiani Raiyats, Jethu Munda, Sukhu Munda and Ram Charan Munda, is illegal in view of various judgement referred to in the counter affidavit. Hulas Panna was never in physical possession or in legal possession over the land in question and accordingly never became a raiyat of Superior Landlord the Maharaja of Chotanagpur or Ratu Raj. IX. X. Ratu raj could not convert joint property under the law into Chhapparbandi and mutation cannot prove the title. XI. He submits that the judgements relied upon by the petitioner does not apply to the facts and circumstances of this case. 14. On the basis of the aforesaid submissions, it is submitted that challenge to the orders passed by the Authorities in the present writ petition is devoid of merits and be dismissed. 15. However, the learned counsel during the course of argument could not dispute that the application for restoration of land is not on record. It is also not in dispute that the sale deeds which are being relied upon by the petitioner or even the case of the respondents as mentioned above including partition and other aspects of the matter has not been even referred to by the learned Commissioner in the impugned order. Rejoinder argument of the petitioner. 16. In response, the learned counsel for the petitioner submits that the record of rights was prepared as back as in the year 1935 and 7 therefore there was no question of any entry regarding creation of Chapparbandi etc. in the record of rights. He submits that Chhaparbandi rights were created by virtue of a registered deed and therefore in absence of any challenge to the registered deed creating Chhaparbandi, the provisions of Section 71-A of the Chhotanagpur Tenancy Act are not at all applicable. Findings of this court. 17. After hearing the learned counsel for the parties and considering the facts and circumstances of this case this court finds that both the parties have relied upon a number of documents in their favour. The counsel for the petitioner has relied upon a number of registered sale deeds including the registered document by which Chhaparbandi rights is claimed to have been created in favour of the predecessor in interest of the petitioner. The impugned order does not deal with the points as raised and argued by the respondent as mentioned above. 18. The order of the learned Commissioner is quoted as under: - “Perused the order of the lower court and examined the papers and documents submitted by the petitioner. The petitioner got the land given to him as jarpeshagi into Chhapperhandi, whereas he has no such right. There- fore the very basis is wrong and hence the application has no merit. And the same is rejected.” 19. Upon perusal of the said order it appears that the learned Commissioner has passed the impugned order after perusal of the order of the lower court and on the basis of the papers and documents submitted by the petitioner and recorded that “the petitioner has got the land given to him as jarpeshagi into Chhapperbandi, whereas he has no such right.” 20. This court finds that many aspects of the matter has not been considered by the learned Commissioner including the point of limitation, date of dispossession, the impact of the documents including the registered document by which Chhapperbandi right was claimed to have been created in favour of the predecessor in interest of the petitioner. From the perusal of the impugned order it further appears that records of the two Authorities i.e. the Authority passing 8 order under Section 71-A as well as the Appellate Authority have not been called for/considered and the impugned order has been passed only by referring to one fact. 21. The impugned order does not even deal with the point of limitation/delay or laches which certainly has an important bearing in the matter of restoration in view of the judgment passed by the Hon’ble Supreme Court in the case of Situ Sahu versus State of Jharkhand and others reported in (2004) 8 SCC 340. 22. In view of the aforesaid facts and circumstances this court is of the considered view that the impugned order dated 28.08.2001 passed by the learned Commissioner cannot be sustained in the eyes of law being cryptic and non-speaking in many aspects of the matter. 23. Accordingly, the impugned order passed by the learned Commissioner is hereby set aside and matter is remitted back to the learned Commissioner for passing fresh order in accordance with law after granting opportunity of hearing to the parties and after calling for the records from the court of SAR Officer as well as the Appellate Authority. 24. At this stage, the counsel for the petitioner has submitted that it may be kept open to the petitioner to file the registered documents which has been mentioned above. The learned counsel for the respondent No. 6 submits that if any such document is filed before the Commissioner, the respondent No. 6 will also have a right to respond to such registered documents. He also submits that it may be kept open to the respondent No. 6 to say that those registered documents are not binding on the respondent No. 6. Learned counsel has also submitted that all the points which may be raised by the respondent No. 6 in connection with any registered documents which may be filed by the petitioner should be left open. 25. Considering the aforesaid submission at the end of the dictation as advanced by the learned counsel for the parties, it is sufficient to observe that it will be open to the petitioner to bring on record before the learned commissioner certified copies of the registered documents which the petitioner seeks to rely upon and it will be open to the respondent No. 6 to respond to the same in accordance with law and 9 all the objection of respondent No. 6 in connection with the registered document is kept open to be considered by the learned commissioner. 26. The petitioner as well as respondent No. 6 are directed to appear before the learned Commissioner on 22nd March 2023. Upon their appearance, the learned Commissioner shall do the needful as directed above and pass a reasoned order within a period of 8 months from their appearance. 27. This writ petition is accordingly disposed of. Binit N.A.F.R (Anubha Rawat Choudhary, J.)