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1975 DIGILAW 34 (PAT)

Ram Narain Sah v. State

1975-02-07

K.B.N.SINGH, UDAY SINHA

body1975
JUDGMENT K. B. N. Singh, J : In this application under Articles 226 and 227 of the Constitution of India, the sole petitioner, Ramnarain Sah, has prayed for quashing an order of eviction of the petitioner from certain land, passed by the Sub-divisional Officer, Dumka, on the 20th June, 1969 (Annexure 2'), as well as the order of the Additional Deputy Commissioner of Santhal Parganas dated the 3rd December, 1969 (Annexure 3') and the order of the Commissioner of Bhagalpur Division dated the 22nd November, 1970 (Annexure 4'). The latter two orders have affirmed the first order. 2. The petitioner has averred in the writ application that one Narayan Chandra Laha, husband of Firobala Dasi (Respondent No.5), was the recorded Raiyat in respect of Jot No.5 of Village Patharia, Circle No. 20, police Station Saraiyahat, in the District of Santhal Parganas, bearing Plot No. 135 (having an area of 2.26 acres) and plot No. 138 (having an area of 0.10 acre), and classified as Dhani Class II and Class III, respectively. The petitioner's case is that in or about 1944, the petitioner took the aforesaid land on Kurfa settlement and continued in possession for more than 12 years. He was subsequently dispossessed from the land by the husband of Respondent No.5 and he filed a title suit being Title Suit No. 20 of 1959 in the court of the second Subordinate Judge, Dumka, for declaration of his title and recovery of possession. The said suit was compromised on the 3rd November, 1959, in which the title of the petitioner was recognised and his possession was ordered to be restored through court. A copy of the petition of compromise has been filed as Annexure 1'. The petitioner has averred that he executed the decree in Title Execution Case No. 1 of 1960 and obtained delivery of possession. Long thereafter, on the 10th March, 1969, Respondent No.5 filed an application before Sub-divisional Officer, Dumka for eviction of the petitioner from the aforesaid land, characterising the petitioner's possession as unauthorised and for her possession being restored. It is not disputed that this application by Respondent No. 5 was filed under the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 (Bihar Act, XIV of 1949) (hereinafter referred to as the Act). The petitioner has averred that although the Sub-divisional Officer. It is not disputed that this application by Respondent No. 5 was filed under the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 (Bihar Act, XIV of 1949) (hereinafter referred to as the Act). The petitioner has averred that although the Sub-divisional Officer. Dumka, issued notice of the application to the petitioner, but no notice was served on the petitioner and an exparte order for eviction was passed on the 20th June, 1969 (Annexure 2'). His• appeal before the Deputy Commissioner was dismissed on the 3rd December, 1969 (Annexure 3') and his revision before the Commissioner of Bhagalpur Division was also dismissed on the 22nd November, 1970 (Annexure 4'). Thereafter the petitioner has filed the present writ application on the 20th August, 1971 3. Mr. Prem Lall, learned Counsel appearing on behalf of the petitioner, has urged that there was no power in the revenue authorities to annul the decree of a Civil Court under Bihar Act, XIV of 1949, and the said power was conferred for the first time by the Bihar Scheduled Areas Regulation, 1971 (Bihar Regulation I of 1972), which amended Section 20 of the 1949 Act, and gave the revenue authorities power to annul a decree passed, in a Civil suit, by fraud or collusion. 4. Section 3 of Bihar Regulation I of 1972, which amended Section 20 of the Act, reads thus: 3. 4. Section 3 of Bihar Regulation I of 1972, which amended Section 20 of the Act, reads thus: 3. Amendment of Section 20 of Bihar Act, XIV of 1949- "In sub-section (5) of Section 20 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 (Bihar Act, XIV of 1949), as substituted by the Bihar Scheduled Areas Regulation, 1969 (Bihar Regulation I of 1969), after the words "any fraudulant method", the words "including decrees obtained in suits by fraud or collusion" shall be inserted." The relevant portion of sub-section (5) of Section 20 of the Act, as substituted by the Bihar Scheduled Areas Regulation, 1969 (Bihar Regulation I of 1969), omitting the provisos, reads as follows :- "(5) If at any time it comes to the notice of the Deputy Commissioner that a transfer of land belonging to a Raiyat who is a member of the Scheduled Tribes, as specified in part III of the Schedule to the Constitution (Scheduled Tribes) Order, 1960, has taken place in contravention of sub-section (1) or (2) or any by say fraudulent method, he may, after giving reasonable opportunity to the transferee, who is proposed to be evicted, to show cause and after "making necessary enquiry in the matter evict the transferee from such land without payment of compensation and restore it to the transferor or his heir , or, in case the transferor or his heir is not available or is not willing to agree to such restoration, re-settle it with another Raiyat belonging to the Scheduled Tribes according to the village custom for the disposal of abandoned holding : Provided. . . . . . " After the expression "fraudulent method" in the aforesaid clause, the following has been added by amendment by Bihar Regulation I of 1972 : "including decrees obtained in suits by fraud or collusion." This amendment has been made for the peace and good government in the area, as the preamble of Regulation I of 1972 will show. This Regulation was published in the Bihar Gazette on the 13th January, 1972. 5. Sub-section (5) of Section 20 of the Act. as substituted by Bihar Regulation I of 1969, gave wide power to the revenue authorities to annal any transfer of land belonging to a Raiyat, who is a member of the Scheduled Tribe, as mentioned above, in contravention of Sub-sections (I) and (2) or by any fraudulent method. 5. Sub-section (5) of Section 20 of the Act. as substituted by Bihar Regulation I of 1969, gave wide power to the revenue authorities to annal any transfer of land belonging to a Raiyat, who is a member of the Scheduled Tribe, as mentioned above, in contravention of Sub-sections (I) and (2) or by any fraudulent method. The expression "any fraudulent method" is wide enough to include a collusive compromise decree. The amendment brought by Bihar Regulation I of 1972, by adding after "any fraudulent method", the expression, 'including decrees obtained in suits by fraud or collusion', only elucidates and clarifies the position in this regard. The view I have taken gains some support from a Full Bench decision of this Court in the case of Bhauri lal Jain vs. The Sub-divisional Officer; Jamtara and others1 in which case, in relation to case filed even before the amendment brought by Regulation I of 1972, this Court did not consider a compromise decree as ousting the jurisdiction of the revenue authorities from going into the question of a compromise decree being fraudulent or otherwise. A compromise decree is after all an agreement between the parties with the seal of the court super added thereto. It is well settled that a party cannot be permitted to do indirectly what it is prohibited from doing directly. A transfer in contravention of the provisions of the Act, will not cease to be so only because the parties have agreed in a compromise before a Court to effect transfer in contravention of the Act. It will be nothing but a fraud on the court as well as a fraud against the statute, apart from being a case of transfer in contravention of the Act, it will also be a case of transfer by fraudulent method and clearly within the ambit of sub-section (5) of Section 20 of the Act, even without the amendment by Regulation I of 1972. 6. In the instant case, the petitioner, in spite of service of notice, as found by the authorities below, did not appear to contest the proceeding before the Sub-divisional Officer. The revenue courts have found that even in the memorandum of appeal filed before them the petitioner did not mention the date of the alleged Kurfa settlement. 6. In the instant case, the petitioner, in spite of service of notice, as found by the authorities below, did not appear to contest the proceeding before the Sub-divisional Officer. The revenue courts have found that even in the memorandum of appeal filed before them the petitioner did not mention the date of the alleged Kurfa settlement. It has been held in Fun Bench decision (supra) that no title by adverse possession can be acquired by virtue of any transfer or settlement made after November, 1949, when the Act, came in force. The revenue courts have found that the title suit itself was a collusive one and so was the compromise decree obtained therein. In view of the aforesaid findings recorded by the revenue authorities, there is no escape from the position that the eviction of the petitioner could be made for contravention of the provisions of the Act, by the revenue authorities. In my considered opinion, therefore, there is no merit in this application, and, it is accordingly dismissed. But in the circumstances of the case there will be no order as to costs. Uday Sinha, J : I agree. Application dismissed.