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1972 DIGILAW 199 (PAT)

Surya Gon v. Sub Divisional Officer

1972-10-23

N.L.UNTWALIA, S.SARWAR ALI

body1972
Judgment 1. In this writ application the land in dispute is comprised in Plots Nos. 439, 606, 611, 632, 2382 and 2391, appertaining to Jamabandi No. 31 of Mauza Hatdhora in the district of Santal Parganas. Two Bhugut bandha mortgages were executed in respect of the six plots by one Panchanan Mahto in favour of Tarpado Gon, brother of the petitioner. The usufructuary mortgages were for a period of six years in accordance with Sec.21 of the Santal Parganas Tenancy (Supplementary Provisions) Act, 1949 (Bihar Act XIV of 1940) hereinafter called the "Act". The first mortgage was executed on the 10th of May, 1963, and it was in respect of Plots Nos. 439, 606, 611 and 632. The second mortgage in favour of Tarapado was executed on the 5th of February, 1964. It was in respect of the four plots for which a mortgage had been executed earlier in the year 1963 as also in respect of the other two plots out of the six plots, namely, Plots Nos. 2382 and 2391. The petitioner took a third mortgage on the 29th of December, 1967 in respect of all the six plots. Respondent No. 2 filed an application under Sections 21 and 42 of the Act for eviction of the petitioner on several grounds. The petitioners case was that the earlier two mortgages executed in favour of his brother, Tarapado, in the years 1963 and 1964 were ineffective and inoperative and Tarapado had not come in possession of the land. The petitioner claimed to have come in possession of the mortgaged land for the first time after the execution of the mortgage in his favour. Learned Sub-divisional Officer, Jamtra, by his order, dated the 27th of May, 1971 has cancelled the sudbharana deed, dated the 29th of December, 1967, executed in favour of the petitioner and has directed restoration of the land of the owner. The petitioner has obtained a rule from this court under Articles 226 and 227 of the Constitution against the respondents to show cause as to why the said order, a copy of which is Annexure "1" to the writ application, be not called up and quashed. 2. Learned Sub-divisional Officer has taken the view that the two deeds executed in favour of Tarapado were effective and operative. 2. Learned Sub-divisional Officer has taken the view that the two deeds executed in favour of Tarapado were effective and operative. According to his case made out in another case he had come in possession and thereafter, on the strength of the mortgage, dated the 29th of December, 1967 the petitioner had come in possession of the disputed land. That being so, in the view of the learned Magistrate, the mortgage executed in favour of the petitioner was in violation of proviso (b) to Sub-section (1) of Sec.21 of the Act. He has, therefore, directed cancellation of the document as also for restoration of the land to the owner. 3. Learned counsel for the petitioner submitted that no order of cancellation of the mortgage executed in favour of the petitioner could be passed under Sub-section (4) of Sec.21, or under any other provision of the Act. He also submitted that no order of eviction could be made against the petitioner before the expiry of the period of six years from the 29th of December, 1967, or, in any event, the order directing restoration of the land to the owner, without determining as to who is the owner, is too vague to be sustained. 4. Whether in form the order of cancellation remains or goes is of little consequence. The effective order is the order of eviction of the petitioner and directing delivery of possession to the transferor raiyat in accordance with Sub-section (4) of Sec.21 of the Act; the form of the order does not matter. 5. Sub-sections (1) and (4) of Sec.21 of the Act read as follows:- - "21. The effective order is the order of eviction of the petitioner and directing delivery of possession to the transferor raiyat in accordance with Sub-section (4) of Sec.21 of the Act; the form of the order does not matter. 5. Sub-sections (1) and (4) of Sec.21 of the Act read as follows:- - "21. (1) Notwithstanding anything contained in Sec.20, the provincial Government may, by notification in this behalf published in the official Gazette, permit non-aboriginal raiyats, either of the whole of the Santal Parganas or of such portion of it; as may be considered desirable to transfer, with effect from such date as may be notified, their rights in their holdings up to the extent of one fourth of their paddy and first class ban lands by bhugut-bandha or complete usufructuary mortgage to-- (i) a land mortgage bank duly established by the Provincial Government, or (ii) a grain gola recognised by the Deputy Commissioner, or (iii) a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935, or (iv) a raiyat of the Santal Paraganas: Provided that (a) no such transfer shall be recognised as valid unless it has been made by means of a registered deed and reported in the prescribed manner by the transferor and transferee to the Deputy Commissioner and to the landlord within one month of the registration of the deed; (b) no such transfer shall be made for a period exceeding six years and, on the expiry of the period of transfer, no further transfer of any of the lands of the transferor raiyat shall be permissible for a period of six years. ***** (4) On expiry of the period of mortgage, the Deputy Commissioner shall of his own motion cause a notice to be served on the parties to the transaction that the period of the mortgage has terminated and shall proceed to evict the transferee and deliver possession to the transferor raiyat." 6. On a reasonable interpretation of proviso (b) it would be noticed that no further transfer of the land by the transferor raiyat is permissible for a period of six years, on the expiry of the period of the first transfer. One could take the view that, when Tarapado relinquished possession even before the expiry of the period of his transfer, no further transfer of the land was permissible. One could take the view that, when Tarapado relinquished possession even before the expiry of the period of his transfer, no further transfer of the land was permissible. But, even assuming that, on a strict interpretation, the expression "on the expiry of the period of transfer" occurring in proviso (b) is not capable of embracing within its ambit curtailment of the period of transfer by the voluntary act of the transferee, there is no difficulty in taking the view that in no case the total period of transfers can exceed six years. If it were not be so, the transferees will be able to defeat the very object of the proviso easily. A will take a transfer for six years, relinquish possession after five years; B will take another transfer for six years and relinquish possession after five years and then say, C will take transfer for another six years. In this way the rigour contained in proviso (b) will be easily circumvented. In our opinion, it is not permissible to do so. The first part of the proviso which provides that "no such transfer shall be made for a period exceeding six years" means one or more transfers the total period of which at one time cannot exceed six years. On the expiry of the said period of six years, there is a complete ban on a second transfer for a period of another six years. On the expiry of the ban period, there may be further transfers. In this case, therefore, it is clear that the usufructuary mortgage in favour of the petitioner could not be effective and the petitioner could not remain in possession of the land on the basis of that mortgage beyond a period of six years starting from the 10th of May, 1963 and the 5th February, 1964. Even counting from the later date, the period of six years expired on the 5th of February, 1970, long before the impugned order of eviction was passed by the Sub-divisional Officer on the 27th of May, 1971. 7. The case of respondent No. 2 was that Panchanan was one of the co-sharers of the land transferred; he had no right to transfer the whole of the land. The direction according to Sub-section (4) of Sec.21 of the Act, in substance and in effect, is to evict the petitioner-transferee and deliver possession to the transferor raiyat. 7. The case of respondent No. 2 was that Panchanan was one of the co-sharers of the land transferred; he had no right to transfer the whole of the land. The direction according to Sub-section (4) of Sec.21 of the Act, in substance and in effect, is to evict the petitioner-transferee and deliver possession to the transferor raiyat. It may mean Panchanan Mahton alone or it may mean all the raiyats who are the owners of the land. That is a question to be determined by the Deputy Commissioner at the time of delivery of possession of the land. The petitioner is not concerned in that matter. The order of eviction made against him, on the facts and in the circumstances of this case, as discussed above, is justified and does not call for any interference. 8. For the reasons stated above, this writ application fails and is dismissed. But, in the circumstances, there will be no order as to costs.