Harichand Rai .... .... … v. 1. The State of Jharkhand 2. Laxman Bhagat 3. Ram Babu Bhagat
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 7124 of 2013 ------ Harichand Rai .... .... …. Petitioner Versus 1. The State of Jharkhand 2. Laxman Bhagat 3. Ram Babu Bhagat .... .... .... Respondents
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioner For the Res.-State For the Res. No.2 : Mr. R.N. Prasad, Advocate Mr. Manoj Kumar No.4, Advocate : Mr. Shivam Anand Pathak, AC to SC III : Mr. A.K. Sahani, Advocate Mr. Manoj Kumar Sah, Advocate ------ Order No.20 / Dated : 19.02.2024 1. Instant petition has been filed for setting aside the order dated 16.06.2012 passed by Commissioner, Santhal Pargana Division, Dumka in R.M.R. No.95/1988- 89 and of the Deputy Commissioner in Revenue Miscellaneous Appeal No.193/1984-85, has been set aside. 2. The land pertaining to Plot Nos.185 and 186 of Jamabandi No.32 in Mouza Jogia, Dumka, was jointly recorded in the name of Palat Rai, Panchu Rai and Sanat Rai. Petitioner is heir and descendent of the recorded tenant Sanat Rai. The private respondents are heirs and descendants of Late Surya Narayan Bhagat, who claim the land in question, on the basis of un-registered Kurfanana executed by Sanat Rai on 05.04.1946 made in favour of Late Surya Narayan Bhagat. 3. Petitioner made an application before the learned Sub Divisional Officer, Dumka for ejectment of the Respondents from Plot Nos.185, 186 and 187. The Sub Divisional Officer after hearing the opposite parties, dropped the proceeding with respect to Plot No.187, however, vide order dated 14.06.1979, ordered eviction with respect to Plot No.185 and 186. 4. The order passed was affirmed in appeal by the Deputy Commissioner, Santhal Pargana with regard to eviction from Plot Nos.185 & 186 in Revenue Miscellaneous Appeal No.622/1979-80. The said order has been reversed in revision against which the instant writ petition has been preferred. 5. It is submitted by the learned counsel on behalf of the petitioner that the Commissioner had no jurisdiction unsettle the concurrent finding of fact recorded by the learned Court below. The impugned order is challenged on the following grounds: Firstly, Kurfanama is a type of settlement by lease and the title cannot be transferred on the basis of un-registered deed in view of Section 17 of the Registration Act. Secondly, the said deed of Kurfanama is said to have been executed on 2 05.04.1946 whereas S.P.T. Act came into force on 01.11.1949. In view of ratio laid down by the full Bench of this Court in the case of Deonarayan Singh & Others Versus The Commissioner of Bhagalpur Division & Others, reported in 1985 PLJR 1 that period of 12 years for perfecting the title by adverse possession would stop running on the date of enforcement of the Act on 1st November, 1949. Further, there is no other collateral evidence in support to show that Kurfanama was executed or it was acted upon. Neither the names were mutated nor rent receipts were issued in favour of private respondents. 6. It is submitted by the learned counsel on behalf of respondent no.2 that by the term of Kurfanama, it will be abundantly clear that predecessor in interest of the private respondents had entered into the possession of the said land as stated in the Kurfanama on 14.01.1936 and constructed house and that was followed by the execution of Kurfanama on 05.04.1946. In the light of above continuous possession, it will be relevant to note the observation of the Court made in Deonarayan Singh (supra) para 20(iii), 21 wherein it has been held that a transfer in contravention of Section 27 of Regulation III of 1872 in which a transferee has been in continuous adverse cultivating possession for 12 years prior to the 1st of November, 1949. In view of Clause (a) of the proviso of Sub-section 3 of Section 27 of the said Regulation, the transferee herein became immune to eviction if he had been in continuous cultivating possession for 12 years. Here, thus allowed, would affect his title by adverse possession. 7. Sub Divisional Officer had called for the report from the Circle Officer, Ramgarh wherein it was reported vide letter no.286 dated 23.03.1982 that private respondents were in continuous possession since last 35-36 years. It is further argued that it is indisputable that the residential house was existing over the said land and admitted by petitioner no.1. In view of ratio laid down in 1988 BBCJ 372 provision of Section 42 of SPT Act, 1949, will not apply in this case because the residential house as well as brick field boundaries were situated on Plot Nos.185 and 186. 8. Argument raised on behalf of both sides raise issues of law which are closely entwined with fact of the case. The revisional Court as well as this Court cannot enter into concurrent findings of fact recorded by the Courts of learned Sub Divisional Officer as well as that of the Deputy Commissioner, unless they are manifestly perverse. 9. Petitioners are admittedly heirs and descendants of the recorded tenants, whereas the private Respondents claim possession on the basis of an unregistered Kurfanama which was executed on 05.04.1946. In view of the settled law, the unregistered instrument of transfer by Kurfanama did not transfer any right, title or interest, as it was in violation to the provisions of the SPT, Act. It has been held 3 in Deonath Singh v. Debendranath Rai, 1929 SCC OnLine Pat 121 : AIR 1930 Pat 78 at page 79 “It is sufficient to say that these documents are all on plain paper, unstamped and unregistered and have never seen the light of day until they were actually filed in this case. The learned Subordinate Judge has shown that there were occasions when these documents, if genuine, should have been produced and I entirely agree with the reasoning of the learned Subordinate Judge. I hold that the plaintiff's case on this point is wholly false and that the plaintiff's suit was rightly dismissed on this ground.” 10. In order to acquire title by adverse possession, it was necessary that the Respondent should have been in possession for more than 12 years as on 01.11.1949, the date when the SPT Act came into force, in view of the law as settled in Deonarayan Singh v. Commissioner of Bhagalpur Division, 1984 SCC OnLine Pat 219 : AIR 1985 Pat 196. 11. The claim in the said Kurfanama that the Respondents were in possession since 1936 cannot be accepted, in the absence of any other evidence in support of it. On the contrary, there is no infirmity in the finding of the learned Courts of the Sub- Divisional Officer and Deputy Commissioner that Respondents were in possession since 35-36 years, in view of the report of the Circle Officer that as on 23.03.1982. Date of actual possession will thus come around 1946-47 and not 1936 as stated in the Kurfanama. In view of the ratio laid down in Deonaryan Singh (supra), the time for adverse possession shall stop running from 01.11.1949, and therefore, the Respondents cannot be said to have acquired title by adverse possession. 12. The finding of the revisional Court that father of Petitioner nos.1 and 2 had constructed house over the plot, is without any evidence. Similarly finding that they were in possession since 1936, is perverse and without any evidence. Under the circumstance, impugned order is set aside and the order passed by the Deputy Commissioner is restored. Writ Petition is allowed. Interlocutory Application, if any, stands disposed of. Anit (Gautam Kumar Choudhary, J.)