The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Lohra Pahan (Kharia) .... .. ... Petitioner(s) W. P. (C) No.5544 of 2008 The State of Jharkhand & Ors. .. ... ..Respondent(s) Versus ...........
Legal Reasoning
CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ......... For the Petitioner (s) : Mrs. Bakshi Vibha, Advocate For the State For the Resp. No.3 : Mr. Kundan Kumar Ambastha, Advocate : Mr. Prashant Kumar Rai, AC to SC (L&C)-I 11/12.03.2024. Heard, learned counsel for the parties. Mr. K. S. Nanda, Advocate …... 1. This petition seeks writ of certiorari to quash the order dated 31.08.2007 passed by learned Commissioner, South Chotanagpur Division, Ranchi in Gumla Survey Appeal (Second Appeal) Case No.78 of 2001 and to restore the order dated 15.03.1994 passed by the Charge Officer i.e. Settlement Officer Incharge in the First Survey Appeal No.3 of 1988. 2. Matter pertains to entry made in the record of rights pursuant to its final publication in the survey settlement operation, with respect to 4.36 acres of land under different plots under Khata no.118 of mauza Pabeya District Gumla. 3. Private Respondents being aggrieved by the entries in the record of rights preferred second appeal under Section 89(2) of the CNT Act before the Court of Commissioner, which was allowed inter alia on the following grounds: a. Traditionally these lands have been service tenure lands pertaining to the services of the Pahan and Pujar of the village community given to the pahan in lieu of remuneration of the pahan for his services. b. Post(s) of Pahan and Pujar was not hereditary. c. At the time of Bhuinhari Survey of 1878, Honi Pahan was appointed as the Pahan of Pabeya who continued after few years of the cadestral survey. Honi was dismissed and Dhiru Khariya was appointed as pahan and his name was entered in the revisional survey record of rights which was published on 05.02.1933. In 1935 Dhiru Khariya was dismissed for negligence of his work and one Mangru Khariya was appointed pahan, who appointed Ganduraa Pujar as his Pujar till about 1937. Mangra Pahan after having been convicted in some criminal case in 1937, was removed and Gandura Pahan was appointed in December 1937 as Pujar. 2 d. Dhiru Kharia and his pujar Nandu Khariya did not hand over possession of the pahanai lands to the new pahan and consequently Gandura Pujar and Charu Oraon filed TS No.39 of 1938 which was decreed in favour of the Plaintiffs and the Title Appeal No.14/6 of 1939-40 was dismissed. Possession of the pahnai and pujar land was handed over in Execution case no.51 of 1940. e. These lands in the current survey operation were shown as community lands till the tasdik stage of Section 83, with remark that the pahan is appointed by consensus or election by the villagers. f. Claim over the land on the plea that they were hereditary pahan of village was turned down by holding that the office of pahan was not hereditary, in view of the Bhuinhari survey record . Bhuinhari Survey plot no.33 and 17 were attached to the officer of pahan and pujar of the village, as per the bhuinhari register exhibited in the title suit. Pahan held these lands on being appointes as pahan with the consent of the village community. g. After the death of Honi Pahan, the office of th pahan was not filled by his brother Jata Pahan or his nephews though they were very much in the same village. h. From the Judgment dated 11.03.1940 in T.A No. 14/6 of 1939-40 Dhiru Khariya had admitted in his deposition in the criminal case that his father Sukhu Pahan was not a bhuinhar of village. i. From Panchnama of the village community exhibited in the Title suit showed that Gandura Pahan was elected by the villagers on 13.12.1937. j. Entries in the revsional survey record of right of pahanship being hereditary only a presumption, has been rebutted in view of the final Judgment in the Title suit. k. Taylor’s final report on the territorial on the revisional survey and settlement mentions about pahan being elected at regular period by the village community. l. In R.S Khatiyan in the raiyat’s column of khata no.71 there is no entry of any individual’s name rather the land of this khata are shown as bakasht pahnai lands. 4. The impugned order is challenged on the ground that the land, in question, was pahanai in nature and hereditary. Petitioner is the heir and descendant 3 of Pahan (Hony @ Honi Pahan). The order passed in appeal suffered from infirmity(s) by recording that the pahanai land was not hereditary. 5. The second ground is that the Second appeal was time barred as it was passed 12 years after the order passed by the Charge Officer i.e. Settlement Officer Incharge in the year 1988 in First Survey Appeal No.3 of 1988. 6. It is argued by learned counsel for the answering respondent(s) that petitioner claims to be adopted by his maternal-uncle, Hony @ Honi Pahan whose name was recorded in the records of rights. The land, in question is pahanai land and earlier there was a suit filed by one Gandura Pahan and Ors. against Dhirhu Khariya being Title Suit No.39 of 1938. The private respondent/respondent no.3 claims to be the heir(s) and descendant(s) of Gandura Pahan who had filed the said Title suit and the suit was decreed in favour of Gandura Pahan & Ors. Further, in the said suit, the learned Trial Court has held that Dhiru Kharia had asserted that he was still doing puja, but he could not make presence of any of the villagers except one Koto who attended his puja. 7. It is further argued that the claim of right of performing puja was decided in favour of said Gandura Pahan. It has also come in the said judgment that said Hony@Honi Pahan died heirless which was not correct as Hony@Honi Pahan had brother and his nephew, Jata Pahan had got inheritance right of land of Hony @ Honi Pahan. Dhiru Kharia was elected because the villagers wanted and not because line of Hony @ Honi Pahan was extinguished. 8. There is no document in support of the claim of Dhiru Pahan @ Dhiru Kharia to be adopted by his maternal uncle Honi Pahan. 9. After having considering the submissions advanced on behalf of both the sides and considering the materials on record, Petitioner claims to the land hinges on the plea that office of pahan was hereditary and they were the heirs and descendants of Honey Pahan. This issue has been set at rest in TS No.39 of 1938 which was decreed in favour of the Plaintiffs Gandru Pahan Charu Oraon against Dhiru Kharia, and the Title Appeal No.14/6 of 1939-40 was dismissed. No second appeal was filed and the order attained finality. Possession of the pahnai and pujar land was handed over in Execution case no.51 of 1940. 10. As far as the plea that second appeal was barred by Limitation, it is apparent from the counter affidavit filed by the Respondent No.3 that a petition under Section 5 of the Limitation Act was filed, which was duly condoned by the learned Commissioner. 4 Under the circumstance, I do not deem it fit in exercise of writ jurisdiction to interfere with the impugned order passed by the learned Commissioner. Writ Petition accordingly stands dismissed.
Decision
I.A., if any, stands disposed of. (Gautam Kumar Choudhary, J.) Sandeep/ Uploaded