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1976 DIGILAW 3 (PAT)

Pairia v. Commissioner Of Bhagalpur Division

1976-01-07

S.N.P.SINGH, SUSHIL K.JHA

body1976
Judgment S. K. Jha, J. 1. The sole petitioner under Articles 226 and 227 of the constitution of India has made a prayer for the quashing of the order of the commissioner of Bhagalpur Division, respondent no.1, dated 25th of january, 1972, as contained in Annexure 3 to the application. 2. There is no controversy with regard to the facts in this case. Plots 386 and 387 of village Sarkanda within Police Station Godda in the district of the Santhal Parganas, were recorded in the name of one Mostt. Paria in the last survey record of rights. The petitioner is the daughter of the recorded tenant and is her legal heir. Phulchand Ram Marwari (Respondent no.4) is alleged to have taken possession of the said two plots on the basis of Kurfanama sometime in April, 1949. Thereafter under the Santal Parganas Tenancy (Supplementary Provisions) Act, 1949 (hereinafter to be referred to as the Act)which came into force with effect from 1.11.1949, the petitioner filed an application before the Subdivisional Officer, Godda respondent no.3), for eviction of respondent no.4, under section 42 of the Act. By an order, dated 9.2.1971 the learned Subdivisional Officer ordered eviction of respondents 4 and 5, both of whom claimed to have taken possession under Kurfa settlement, from the aforesaid plots 386 and 387. A copy of the order of the Subdivisional officer, has marked Annexure 1 to this application. Respondent No.4 preferred an appeal before the Deputy Commissioner, Santal Parganas, who, by his order, dated 2 6.1971 (Annexure 2) upheld the order passed by the subdivisional Officer, Respondent no.4 thereafter filed a revision before tke commissioner (Respondent no.1) who, by the impugned order, allowed the application in revision and set aside the order passed by the Deputy commissioner, and the Subdivisional Officer. The learned Commissioner in the impugned order (Annexure 3) has held that since respondent no.4 had come in possession of the plots in question before the coming into force of the act he had perfected his title by adverse possession on the date when the application for his eviction had been filed by the petitioner. The learned Commissioner in the impugned order (Annexure 3) has held that since respondent no.4 had come in possession of the plots in question before the coming into force of the act he had perfected his title by adverse possession on the date when the application for his eviction had been filed by the petitioner. Admittedly, under section 27 of Regulation 3 of 1872, a person coming in illegal or unauthorised possession of land in contravention of section 27 could perfect his title by adverse possession by remaining in possession for twelve years since Respondent no.4 admittedly came in illegal possession in April, 1949 in contravention of the provisions of section 27 of Regulation 3 of 1872 it was held by the learned Commissioner that there was no bar to his acquisition of title by remaining in adverse possession for twelve years irrespective of the fact that in the interim period the Act came into force. The point at issue in this case is concluded by a Full Bench decision of this Court in Bhauri Lal Jain v. Subdivisional Officer of Jamtara, (AIR 1973 Patna 4 ). It is only with regard to the intpretation of the ratio of that case that the parties are at logger heads. Mr. S. C. Sinha, learned Counsel for the petitioner, submitted that the full Bench had actually decided that a person could be protected in his illegal possession only if he had perfected his title by remaining in adverse possession for twelve years before the Act of 1949 came into force. It was contended that if title had not been so perfected by prescription before the commencement of the Act, then in view of the provision of section 20, section 42, proviso to section 64 and section 69 of the Act, there could be no period of limitation to bar the eviction of such unauthorised occupants. On the contrary, Mr. Ray parasnath, learned counsel for the contesting respondents, submitted that what the Full Bench in the case of Bhauri Lai Jain (Supra) actually laid down was that if a person came in illegal or unauthorised possession of any land in contravention of the provisions of section 20 of the Act, then only there could be no question of limitation. Ray parasnath, learned counsel for the contesting respondents, submitted that what the Full Bench in the case of Bhauri Lai Jain (Supra) actually laid down was that if a person came in illegal or unauthorised possession of any land in contravention of the provisions of section 20 of the Act, then only there could be no question of limitation. On the contrary, if the act of illegal possession had commenced contravention of the provisions of section 27 of Regulation 3 of 1872 then merely because twelve years had not been completed before the commencement of the Act, there is nothing in the Act to preclude the title by prescription even after the Act came into force. Learned counsels for both the parties took us again and again through the Full Bench decision of this Court in all its aspects and ramifications. Mr. Ray Parasanath also invited our attention to a Bench decision of this Court in Gado Mahto V/s. State of Bihar (CWJC 953 of 1969, decided on 2.1.1973 ). The Bench deciding this case had also taken the view that if illegal possession commenced at a date prior to the enforcement of the 1949 Act, then title by adverse possession could be perfected even after the coming into force of the Act. The Judgment in that case was delivered by Sarwar Ali, J. with whom the learned Chief Justice concurred. Sarwar Ali J. was a party to the Full Bench Judgment itself. Apart from that fact, from the Full Bench decision itself it appears that while dealing with one point for decision by the Full Bench in paragraphs 41 to 43 of that decision the date of commencement of the illegal possession being less than twelve years from the commencement of the 1949 Act, it was held that title could be acquired by twelve years adverse possession. K. B. N. Singh, J. , who delivered the Judgment in the Full Bench case, while dealing with the case of a Kurfa settlement claimed to have been taken in the year 1938, applied the law thus : "i have held that adverse possession could be acquired in case of invalid transfer or settlement during the period of Regulation III of 1872, and that prior to the enforcement of the Act, a person having come in possession in contravention of section 27 (1) of the Regulation could acquire title by adverse possession. If the learned Sub-Divisional Officer, comes to the conclusion that these petitioners did not take settlement or did not come in possession prior to the enforcement of the Act, then, as laid down, above, no adverse possession could be acquired by these settlees, as accrual of such right was barred under the Act". Mr. J. C. Singh invited our pointed attention to paragraph 36 of the full Bench Judgment wherein the conclusion arrived at by the Full Bench have been summed up thus : - "that the Limitation Act was applied to the District of Santal parganas, under Regulation III of 1872, and adverse possession could be acquired under an invalid transfer, in contravention of section 27 (1) of the Regulation. Those who did not acquire title by adverse possession under Regulation III of 1872, could be evicted under the old section 27 (5) or section 42 of the Act, even after the repeal of section 27 (3) of the Regulation as the Act, was supplemental to the Regulation". But this portion of the Judgment cannot be read in isolation, it has to be read along with clause (v) of that paragraph which runs thus : - "that section 20 of the Act was prospective and that there could not be acquisition of title by adverse possession in case of transfer or : settlement Act, in contravention of section 20 (1) and (2) of the act. " and that too in the context of what has been told earlier at the end of paragraph 20 that sub-sections (1) and (2) of section 20 of the Act were prospective and did not bore acquisition of title by adverse possession in respect of contravention of the Regulation, as distinct from the contravention of the Act. it needless to go into any detailed discussion of the provisions of sections 20, 42, 44 and 69 of the Act as all those have been discussed at length by the full Bench, I am, therefore, constrained to hold that the ratio of the Full bench decision has been correctly applied by the learned Commissioner. The contesting respondent, namely the settlees having come in illegal possession in contravention of the provisions of section 27 of Regulation III of 1872, acquired title by remaining in possession of the plots in question for a period of twelve years before the application for eviction was filed by the petitioner. The contesting respondent, namely the settlees having come in illegal possession in contravention of the provisions of section 27 of Regulation III of 1872, acquired title by remaining in possession of the plots in question for a period of twelve years before the application for eviction was filed by the petitioner. There is thus no infirmity in the impugned order (Annexure 3 ). 3 In the result, this application fails and is, dismissed, but in the circumstances, of the case there will be no order as to costs. Application dismissed.