Vipul Munjal v. State of Jharkhand through Secretary, Department of Revenue, Registration and Land Reforms

Judgment

2. Heard learned counsel for the parties. The instant writ petition has been filed praying, inter alia, for quashing of the entire proceedings being SAR No. 52/2024-25, initiated by the Court of Special Regulation Officer, initiated under Section 71A of the Chotanagpur Tenancy Act, 1908 vide notice bearing number 340 dated 19.10.2024. 1

3. Mr. Prashant Pallav, assisted by Mr. Parth Jalan, learned counsels representing the petitioners submit that the appertaining to Khata No. 31, Plot No. 28 (corresponding to MS Plot No. 1226) admeasuring an area of 1.41 acres in village-Siram (hereinafter referred to as the scheduled land) was in the continuous and peaceful possession of the Petitioners since 1946. The ancestor of the Petitioners namely Jiwal Lal, took permission from then Deputy Commissioner under the provisions of the Chotanagpur Tenancy Act, 1908 and purchased the land from the recorded raiyat (i.e. ancestors of Domba Oraon) by execution of a registered sale deed on 20.7.1960. It has been submitted that soon thereafter a suit being Original Suit No. 109 of 1961 was filed by the legal heirs of Domba Oraon against their co-sharers i.e. the legal heirs of Cherbo Oraon

along with the ancestor of the Petitioners. The Plaintiff of this suit have sought for the relief for partition of the suit property and further prayed that the compensation against acquisition of the land appertaining to Plot No. 26 and 27 be released in their favour. The suit was compromised and a decree was prepared in which the right, title and interest of the Petitioners’ ancestor over the scheduled land was recognized.

4. It has been further pleaded that the ancestor of Respondent No. 4, namely one Domba Oraon had filed a case under Section 71A of the Chotanagpur Tenancy Act, 1908 which was registered as SAR Case No. 132 of 1992-93. The same was dismissed on the ground of 2 limitation and the said decision was affirmed by the Hon’ble Supreme Court of India in the order passed in Civil Appeal No. 1057 of 2004 dated 31.8.2010. He further submits that the Respondent No. 4 is a luxurious litigant and along with the impugned proceedings he is also pursuing another suit being Original Suit No. 495 of 2021, in which the same and similar reliefs have been sought.

5. In light of the above facts, it has been submitted that the instant proceedingsis not only hopelessly barred by limitation but also hit by the principles of res judicata. Further, it has been contented that the Respondent No. 4 has not approached the authorities with clean hands and have committed perjury by furnishing a false statement on affidavit wherein it has been stated that no other case has been filed by him with respect to the scheduled land and as such the impugned proceeding is fit to be quashed.

6. It has been submitted by Mr. Radha Krishna Gupta appearing for the Respondent no.4that the land appertaining to Plot No. 26 and 27 were possessed by him; however, the scheduled land was vacant and was fraudulently occupied by the Petitioners. It has been further submitted that he is unaware about the suit being OS Case No. 495 of 2021 as the same has not been filed by him; but the fact remains that the suit is being pursued by his father. It has been pleaded that sale deed (the Court presumes that Respondent No. 4 is talking about the sale deed of 1960) is 3 fraudulent and the Respondent No. 4 has applied for the certified copies of Title Suit No. 109 of 1961 to verify the facts.

7. In Para-10 of the counter-affidavit, Respondent No. 4 has laid down his case wherein he has stated that he is not aware about any OS case filed by his father. He has pleaded that the land was being cultivated by his ancestors till late 90s and thereafter the land was fraudulently acquired by the Petitioner. It has been further submitted that after the demise of Domba Oraon, the case was pursued by Akash Oraon (his brother) and as such he has no knowledge of the same. It has been additionally pleaded that SAR Case No. 132 of 1992-93 was with respect to Plot No. 26 and 27 and not with respect to Plot No. 28. It has been lastly pleaded that the name of his father i.e. Domba Oraon is still running in Register-II, which shows that the possession of the Petitioner is illegal and has been taken fraudulently.

8. Mr. Mohan Kumar Dubey, learned A.C. to A.G representing the respondent-State has supported the case of Respondent No. 4 and has highlighted the object behind the enactment of the Chotanagpur Tenancy Act, 1908. He has submitted that the object of the Act, 1908 was to protect the lands of the tribal population from fraudulent transfers. It has been submitted that as there was no permission for Plot No. 28, the case filed by Respondent No. 4 is maintainable. It has been argued that the writ petition filed by the Petitioner is premature and no proceeding can be assailed at the time of the notice itself. 4

9. In reply, Mr. Pallav has rebutted the argument of the Respondents by contending that if the initiation of the any proceeding itself is bad in the eye of law, then the Petitioner has all the right to approach this Court under Article 226 of the Constitution of India. It has been further submitted that the assertions made in the counter-affidavit by Respondent No. 4 is wholly vague and has been deliberately to mislead this Court into believing that disputed questions of facts are involved in this case. It is also been submitted by the learned Counsel that once the dispute pertaining to Plot Numbers was already settled in the Original Suit No. 109 of 1961, Respondent No. 4 cannot be allowed to raise the same. Learned counsel has lastly submitted that the Respondent No.4 cannot claim lack of knowledge with respect to the scheduled property as he is bound by the decree and orders passed against his ancestors from whom he is deriving title.

10. On basis of the submission of learned counsel for the parties, the following issues are to be addressed by this Court. (i) Whether the proceedings under Section 71A of the Chotanagpur Tenancy Act, 1908 can be allowed to continue for a sale deed which was executed in 1960? (ii) Whether the impugned proceedingsis hit by the principles of res judicata? 5 (iii) Whether the impugned proceedings can be allowed to continue when a civil suit is already pending for the same relief?

11. The important facts which this Court has sieved from the pleading and submissions of the parties are that the dispute pertains to 3 (three) Plots within Khata No. 31 of Village Simar, Thana Ranchi, District-Ranchi i.e. Plot No. 26, 27 and 28. The aforesaid areas were amicably partitioned by and between Domba Oraon and Cherbo Oraon (both sons of Mangra Oraon) and Domba Oraon came into exclusive possession of RS Plot No. 28 (corresponding to MS Plot No. 1226) and Cherbo Oraon came to have exclusive right over RS Plot No. 26 and 27 (corresponding to MS Plot No. 1227, 1147 and 1148). Thereafter, the records of right in the revisional survey was prepared in which the owners of the Plot was interchanged. The Petitioner’s ancestor executed a sale deed in 1960 and came in peaceful possession of Plot No. 28 (corresponding to MS Plot No. 1226). After the execution of the sale deed a suit was initiated by the wife of Domba Oraon (Son of Khaya Oraon) against the Petitioner’s ancestor and the other co-sharer, which was registered as Title Suit No. 109 of 1961. The relief sought in the suit is extracted as under:- “(a) It be declared that the Plaintiff jointly are entitled to are entitled to 9,000 (INR Nine Thousand Only) and Defendant No. 2 to the balance of compensation awarded for acquisition of RS Plot No. 26 and 27 in village Siram P.S Ranchi No. 210, Dist-Ranchi, in land acquisition case No. 71 of 1961-62 before the Land Acquisition Officer at Ranchi, the Defendant No. 1 having no title to or possession over the said plots. Alternatively, to relief A and only if it found that there is no partition between Domba Oraon and Charwa Oraon the following relief:- 6 B(1) It be declared that the Plaintiff are entitled to one half of the total compensation for RS Plot No. 26 and 27; B(2) R.S Plot No. 28 of the village Siram P.S Ranchi No. 210 District Ranchi admeasuring 1.41 acres be partitioned between the Plaintiffs on one hand and Defendant No. 1 on the other hand and the Plaintiff be allotted, specific portion thereof in lieu of one half of the share.”

12. Title Suit No. 109 of 1961 was finally compromisedin which a compromise decree was drawn. The Court finds it necessary to reproduce the entire contents of the compromise which forms part of the compromise decree prepared in Title Suit No. 109 of 1961. “(a) All parties accept here to accept that entire RS Plot No. Khata No. 31 consisting of RS Plot No. 26 and 27 and 28 in suit were partitioned between the original owners Domba Oraon and Charwa Oraon before the revisional survey, Domba Oraon was allotted exclusively RS Plot No. 28. (b) All the parties hereto also accept that Domba and Charwa remained in exclusive possession of their respective allotments aforesaid. The revisional record of rights is so far as the same indicates as interchange of the allotments is also accepted by the all the parties to be a mistake. (c) The plaintiffs and defendants no.2 accept and confirm that the defendant no.1 is sole and exclusive owners of R.S. plot no.28 having been acquired by him by transfer from the rightful exclusive owner the defendant no. 2 on 5.8. 1946 followed by open adverse and continuous possession since that day upto date with the full knowledge and consent of the plaintiff and defendant no 2, none of whom have no manner of claim to the said plot. The title to and possession over R.S. Plot no. 28 in village Siram P.S. and district Ranchi of the defendant no. l are here by confirmed. (d) In the premises aforesaid the defendant no.1 gives up all his claims to a plot nos. 26 and 27 and to the compensation payable by the award in land acquisition officer at Ranchi the plaintiffs and defendants no.2 have med to the apportionment of the total amount awarded, so that the plaintiff no. 1 and 2 jointly get Rs.9,000/- out of the same and defendant No. 2 shall get the balace. The plaintiffs and defendant no. 2 have filed the necessary petition under section 29 of the Land Acquisition act accordingly. (e) in the premises aforesaid the defendant no.1 shall if necessary, join in any further petition that may be deemed necessary to give effect to the aforesaid agreement of apportionment between two plaintiffs and defendant no. 2 (f) The defendant no.1 shall get his name mutated in the sherista of the landlord in respect of plot no.28 and the plaintiffs and defendants nos. 2 shall joint in the said petition intimating that none of them have any objection to the mutation. (g) That, the parties shall respectively bear their own costs of this suit.”

13. Thereafter, another case under Section 71A of the Act, 1908 was filed by the father of the Petitioner namely Domba Oraon, which 7 was registered as SAR 132/92-93. The said application was dismissed vide order dated 24.08.1994. This order was confirmed till the Hon’ble Apex Court in Civil Appeal No. 1057 of 2004 vide order dated 31.8.2010. Further another suit being Original Suit No. 495 of 2021 is pending before the Ld. Civil Court, Ranchi. Respondent No. 4 is Plaintiff No. 5 in the said suit. The relief sought in the suit is reproduced as under:- “(A) That on adjudication it be ordered and declared by a decree that the right, title and interest of the plaintiffs over the land in suit. (B) That on adjudication it be ordered and declared by a decree for recovery of possession and the plaintiffs be put in khas possession of the same defendant no.1 to 3. after evicting (C) That a decree for the cost of the suit be passed. (D) That a decree for such other relief or reliefs, if any to which the plaintiffs may be found entitled to be passed.”

14. Thus, on basis of the aforesaid facts, it is clear that the Petitioners (through their ancestor) continues to remain in peaceful possession of the scheduled property since 1946. Thereafter, a sale deed was executed by and between the Petitioner’s ancestor and the ancestor of Respondent No. 4 in 1960.A partition suit was also filed by certain members of the family of Respondent No. 4 in which the parties a compromise. Any dispute/confusion/mistake pertaining to the Plot numbers was settled and the Petitioner’s right, title, interest and possession over the scheduled property was recognized by the predecessor-in- interest of Respondent No.4. This fact is recorded in the compromise decree drawn and signed on 7.10.1961 in Title Suit No. 109 of 1961. It is also apparent that an application under Section 71A of the Act, 1908 being SAR Case No. 132 of 92-93 was filed by the 8 father of Respondent No. 4. The said application was dismissed on the ground that the said proceedings have been initiated after an unreasonable period.

15. Respondent No. 4 has disputed the fact pertaining to such transfer by stating that such transfer was fraudulent in nature. It is settled law that fraud vitiates everything. However, fraud is something which is to be pleaded and proved. An empty statement about a transaction being fraudulent, especially when the existence of such fact is recorded on a judicial document (decree dated 7.10.1961), will not come to the aid of Respondent No. 4. Reference in this regard is made to the case of Mary v. Leelamma and Ors (MANU/KE/1665/2020), wherein it has been held that fraud, coercion, undue influence etc.must be proved by the person alleging it and there should be full disclosure with respect to the same in the pleadings itself. A general or vague allegation is not sufficient to build up a case of fraud. The relevant portion of the judgement is extracted as under:- “24. There is no dispute with the proposition that the burden of proof in respect of the plea of fraud, undue influence or coercion is upon the person who alleges the same. The initial burden can be discharged only by putting forth the necessary plea in the pleadings and thereafter by adducing evidence in accordance with law. Order 6 Rule 4 of the Code of Civil Procedure, 1908 specifies that the party relying upon fraud, undue influence and other category of cases mentioned therein, must specify particulars in the pleading. The allegations must be fully stated, so that, the issues of fraud and undue influence can be decided on the particulars pleaded and evidence adduced by such party. There cannot be any departure from what has been ordained under Order 6 Rule 4 C.P.C. and full particulars must be laid down in the pleadings itself. The cognate vices mentioned in Order 6 Rule 4 C.P.C. must be separately pleaded with specificity, particularity and precision. A general or vague allegation is not sufficient to build up a case of fraud or undue influence. The intention underlying Order 6 Rule 4 C.P.C. is that the opposite party is to be put on sufficient notice as to the case which he is called upon to meet. The aforesaid propositions were laid down by the Supreme Court 9 and Another v. Seogeni Rai