Chand Mahato v. State of Bihar — 1988 DIGILAW 379 (PAT)

Judgment D.K. Sen, C.J.-The material facts are the proceedings leading up to this appeal are, inter alia, that under three deeds of sale respectively dated the 9the February, 1953, the 6th January. 1962 and the 17th March. 1969. Rohina Mahto father of the appellants before us, purchased three separate plot of land, being 86 acres a appertaining to plot no. 39, 70 acres appertaining to plot no.32 and 37 acres appertaining to plot No. 741, all under khata no.39 of village Birdih, from vendors who were respectively recorded as soma lohar, Pitu Lohar and Roidas Lohar. 2. The said Rohina Mahto till his death and thereafter his successors, the appellants, continued in possession of the aforesaid lands and had been paying rent in respect thereof. 3. Subsequently, one Budhram Lohar, the respondent no.5 hereto, son of one tepa Lohar, of village Birdih filed an application before the special Officer under the Bihar Scheduled Areas Regulation, Khunti, district Ranchi, at the relevant time the Deputy Collector, Khunti, (respondent no.4), under section 71(A) of the Chotanagpur Tenancy Act, 1908, claiming restoration of possession of the said three plots of land from the appellants. The said proceeding was marked as Case no. 4816 of 1976. 4. The appellants appeared in the said case and contended that as the respondent no.5 was a Lohar, not a member of Scheduled Tribe, the said application was not maintainable. 5. In support of their contention the appellants produced before the respondent no.4 certified copies of the records in Cases Nos. 128, 129 and 130 of 1976-77 between Debi Lohar and Chand Mahto, as also the said three sale deeds and also adduced oral evidence of three witnesses. 6. The respondent no.5, on the other hand, produced before the respondent no.4 a certified copy of the judgment in case No.14 of 1970-71 between Debi Lohar Vs. Manmodh Mahto and others. He also adduced oral evidence through four witnesses. 7. The respondent no.4 disposed of the case by his order dated the 27the September, 1977 (Annexure ‘8’ to the memorandum of appeal). 8. The respondent no.4 accepted the judgment in case no.14 of 1970-71 produced by the respondent no.5, where it was held that the applicant in that case, namely Debi Lohar of village Birdih was a ‘Lohar’ or ‘Lohara’ and member of a Scheduled Tribe. The respondent No.4 distinguished the judgment in cases Nos. 8. The respondent no.4 accepted the judgment in case no.14 of 1970-71 produced by the respondent no.5, where it was held that the applicant in that case, namely Debi Lohar of village Birdih was a ‘Lohar’ or ‘Lohara’ and member of a Scheduled Tribe. The respondent No.4 distinguished the judgment in cases Nos. 128, 129 and 130 of 1976-77 produced by the appellants where one Debi Lohar was found to be a ‘Lohar’ by case and not a member of the Schedule Tribe, as the entries in the land records were not rebutted by evidence and were accepted to be correct. 9. The respondent No.4 also considered oral evidence adduced by respondent No.5 and noted that the witnesses called by respondent No. 5 had stated that the respondent No.5 belonged to the scheduled Tribe of ‘Lohra’ or ‘Lohara’ and led the life of a member of such a Tribe. He noted further that such witnesses did not contradict themselves in cross examinations. 10. As to the oral evidence adduced by the appellant the respondent No.4 found that one of the witnesses of the appellants was an interested one as his brother was contesting the respondent no.5 in other proceedings. He found further that the other witnesses had little knowledge of the matter in issue and could not depose on material facts. 11. The respondent No. 4 held as follows:- “Thus in the context of the evidence and statements of the witnesses, We arrive at a conclusion that the entry of (Lohar) as the caste of the petitioner in the record of rights and sale deeds is rebutted by these evidence and thus the petitioner is found to be a member of scheduled Tribs the result is that the transaction of lands involved in these proceedings in which the petitioner Budhram Lohar is a party stands as illegal and in contravention of the Provisions of section 46 of the C.N.T. Act.” 12. Accordingly, the respondent No.4 directed the appellants to vacate the land in dispute in favour of the respondent No.5. 13. Being aggrieved the appellants filed an appeal against the said order dated the 27th September, 1977 before the Additional District Magistrate, Ranchi, the respondent no.3. 14. Accordingly, the respondent No.4 directed the appellants to vacate the land in dispute in favour of the respondent No.5. 13. Being aggrieved the appellants filed an appeal against the said order dated the 27th September, 1977 before the Additional District Magistrate, Ranchi, the respondent no.3. 14. The respondent no.3 disposed of the appeal along with five other appeals where the respondent no.5 was also a party and the question involved in all the appeal was whether the respondent no.5 was by caste a ‘Lohra’ or ‘Lohara’ a Scheduled Tribe. The respondent no.3 also considered the record in S.A.R. Appeal No.235R of 1975-76, to which the appellant no.1 before us was a party and where the contesting party was held to be a ‘Lohar’ or ‘Lohara’, and a member of the Scheduled Tribe. 15. The respondent no.3 disposed of the appeal by the following order- “………….The learned lower court has taken evidence and come to the finding that the respondent applicants is Lohara by caste. The witnesses have proved the contention that they are Lohara by caste. The evidence rebuts the entry in the Record of Rights and as such the finding is worthy of credence. The admission of a tribal applicant as per the findings of the court and law has to be ignored. Even if the applicant in a partition suit admit himself to be Lohar he cannot be treated as such and his admission has to be ignored. I have no reason to differ with the findings of the learned court below and I hold that the respondent is Budharam Lohara a member of the Scheduled Tribe and that his lands were purchased in contravention of the mandatory provisions of Section 46 of C.N.T. Act. The land is therefore fit to be restored.” 16. Being aggrieved, the appellants filed a petition before the Commissioner, South Chota Nagpur Division, Ranchi, the respondent no.2, for a revision of the said order of the appellate court dated the 25th January, 1980. 17. The respondent no.2 considered the order of respondent no.4 and noted at follows :- “After carefully weighing all the evidence, the trial court had held that the Khatian entry of Lohar was sufficiently rebutted by oral evidence. 17. The respondent no.2 considered the order of respondent no.4 and noted at follows :- “After carefully weighing all the evidence, the trial court had held that the Khatian entry of Lohar was sufficiently rebutted by oral evidence. He, therefore, came to the conclusion that the O.P. Budhram Lohar was a member of the Schedule Tribe” He concluded that as the main point in dispute has been thrashed out at length before the trial court and upheld by the appellate court he did not field any ground to admit the petition in revision and dismissed the same. 18. Being aggrieved by the aforesaid the appellants moved this court by a petition under Articles 226 and 227 of the constitution marked as C.W.J.C. No.527 of 1980 (R). 19. It was contended at the hearing of the said writ petition on behalf of the appellants inter alia, that there was a presumption of correctness of revisional survey record prepared and published under Chapter XII of the said Act, of 1908 and unless such publication was corrected or modified and recorded and certified to be signed by the Revenue Officer or the Deputy Commissioner concerned such finally published records and certified to be signed by the Revenue Officer or the Deputy Commissioner concerned such finally published records would be conclusive evidence. Under section 87 of the said Act, it was also open to the respondent no.5 or his predecessor interest to institute a suit before the Revenue officer within three months from the date of the certificate of the final publication of the record or rights under section 83(2) of the said Act, for determination of the dispute raised and that a part from such a procedure the correctness of such entries in the records could not be challenged in any other way. 20. The leaned Judge rejected the above contentions on the ground that section 3 of the Bihar Scheduled Areas Regulation of 1969 over-rode all other laws including section 87 of he said Act, of 1908 and that the entry in the records of right was not conclusive proof but could be rebutted by evidence. 21. The learned Judge held further that though the respondent no.2 had dismissed the revision application in limine, but the respondent no.4, and the appellate court, namely, respondent no.3, had based their findings on appraisal of evidence on record. 21. The learned Judge held further that though the respondent no.2 had dismissed the revision application in limine, but the respondent no.4, and the appellate court, namely, respondent no.3, had based their findings on appraisal of evidence on record. The learned Judge held that the High court was not entitled to appraise afresh the evidence and determine whether the presumption in regard to the entry in the record or rights had been rebutted or not. 22. The learned Judge rejected the contention of the appellants that by including ‘Lohara’ in the category of ‘Lohra’ or ‘Lohara’, the authorities had extended the definition and classification of the scheduled Tribes as provided in the relevant notification. He held that the authorities below had come to the conclusion of facts that the entry recording respondents no.5 and his predecessor in, interest as ‘Lohara’ was a mistake for ‘Lohra’ or ‘Lohara’ and that confusion had been created wholly on account of spelling of caste names. 23. The learned Judge also rejected the contention of the appellants that the authorities below failed to take into account that the transferee had constructed substantial structures and buildings in the plots before coming into force of the regulation and that they ought to have awarded compensation. 24. The learned Judge by the said judgment and order dated the 6th March, 1986 dismissed the writ petition without any order as to costs. 25. The present appeals is from the said judgment and order dated 6th March, 1986. 26. At the hearing the learned Advocate for the appellants contended, inter alia that the adjudication in favour of the respondent no.5 that he was by caste a ‘Lohra’ or ‘Lohara’, a member of a Scheduled Tribe, was erroneous and not based on proper consideration of the evidence on the record and that the respondent no.5, who was a ‘Lohar’, could not have been held to be a member of the Scheduled Tribe of ‘Lohra’ or ‘Lohara’. In this connection the learned advocate drew our attention to B. Sasavalingappa Vs. D. Munichinappa and others1, Parsram and others Vs. Shivchand and others2 and Bishwanath Bishwakarma and others Vs. Rameshwar Kaur and others3. 27. In this connection the learned advocate drew our attention to B. Sasavalingappa Vs. D. Munichinappa and others1, Parsram and others Vs. Shivchand and others2 and Bishwanath Bishwakarma and others Vs. Rameshwar Kaur and others3. 27. The learned advocate for the appellants next contended that the learned Judge in the first court proceeded erroneously on the basis that there was mistake in the spelling of the caste of the respondent no.5, which caused the confusion in the name. There was no evidence nor finding on record to support this conclusion. 28. It is not in dispute that a ‘Lohar’ is not a Scheduled Tribe within the meaning of the Schedule Castes and Scheduled Tribes List Modification Order, 1965. It named ‘Lohra’ or ‘Lohara’ which is a scheduled Tribe. Law is well settled that if a person, who is in a ‘Lohar’ or ‘Lohara’ has been wrongly or fraudulently recorded in the record of rights or in other deeds as Lohar, the same is not conclusive and can be adjudicated by the authorities concerned, whether the person concerned belongs to the caste of lohar or is a member of the Scheduled Tribe Lohra or Lohara. See Chandra Mohan Mahto Vs. State of Bihar and others4. Therefore, the contention of the appellants that the authorities have extended the ambit of the caste Lohra or Lohara by including I the same a Lohar is unacceptable and to this extent the judgment and order under appeal appears to be correct. 29. The finding in the judgment under appeal that there was a mistake of spelling in recording the caste of the respondent no.5 in the relevant records and a confusion arose-there from is, however, not based on any evidence led by the respondent no.5 in the earlier proceeding nor is this case supported by any finding of the authorities below and as such a finding cannot be sustained. 30. But the appellants cannot succeed on this ground alone as there were other evidence and material on record on the basis of which the authorities below could have arrived at a proper finding. It has been rightly held in the judgment under appeal that the respondent no.3 had based its findings on appraisal of the evidence or the record and that it was not for the High court to appraise such evidence afresh and determine the correctness of the adjudication. 31. It has been rightly held in the judgment under appeal that the respondent no.3 had based its findings on appraisal of the evidence or the record and that it was not for the High court to appraise such evidence afresh and determine the correctness of the adjudication. 31. But the question still remains for consideration as to how the evidence in such cases of dispute regarding recording of the caste should be appraised. In a recent judgment in Chand Mahto Vs. State of Bihar and others5 it was laid down by this Court as follow : ‘It is well settled that terms of Section 84(3) of the Chotanagpur Tenancy Act, a strong presumption arises about the correctness of the entries made in the record of rights. Such an entry made in the record to show that the presumptive value attached to such an entry had been rebutted” 32. In Liloo sahu and others vs. State of Bihar and others6 it was held that it could not be determined whether a person was a ‘Lohar’ by caste or a ‘Lohra’ or ‘Lohara’ merely on the basis of a caste certificate issued by a person, unless the person granting the certificate was examined on oath Similar view was expressed in Debi Narayan Singh vs. State of Bihar7. 33. In my view, the, respondent No.4, the first adjudicating authority, lost right or this aspect of the matter, He merely noted the oral evidence adduced on behalf of the parties, accepted the evidence of the witnesses of respondent No.5 and straightaway came to the conclusion that such evidence was contrary to the entires in the record of rights and the deeds of sale the rebutted the latter. No reason has been recorded by the respondent No.4 as to why the statements of the villagers produced by the respondent No.5 should override the presumptive value of the old entries in the record of the rights. 34. While it is not open top the High Court to reappraise evidence adduced before the authorities below in a proceeding under Articles 226 and 227 of the Constitution, it is necessary for and in fact is duty of an appellate authority to consider and appraise such evidence in an appeal and the appellate authority is bound to apply its mind to the evidence on the record where the findings of fact are challenged. In the instant case the respondent No.3, the first appellate authority, failed to do so. The respondent No.3 heard the appeal preferred by the appellants along with other appeals and did not consider or analyse the oral and documentary evidence in each of the case separately. It cannot be ascertained from the order of the respondent No.3 whether the evidence in all the appeals were common. The respondent No.3 disposed of all the appeals by a common order. He noted that evidence was taken by the respondent No.4 and his finding and mechanically reordered that such evidence rebutted the entries in the record of rights. The respondent No.3 did not consider the oral evidence adduced on behalf of the appellants at all and did not even record that the evidence adduced on behalf of the respondent No.5 was being accepted by him in preference to that adduced by the appellants. The aforesaid establish a complete non application of mind by the respondent No.3. 35. So far as the respondent No.2, the final revisional authority, is concerned, it seems that he preceded in the matter summarily and dismissed by the petition of appellants in limine. This Court in Bishram Sahu vs. Bhairo Oraon and others reported in scope of a revision under section 217 of the Chotanagpur Tenancy Act. 1908, and held as follows :- “From a perusal of the aforementioned provision it would appear that the same confers upon the revisional authority a very wide power to entertain a revision application and in doing so he could not only correct the errors of law but also correct the correct the errors of fact. There is no doubt that the scope of appeal and revision is different. Although even in terms of provision of section 217 of the Chotanagpur Tenancy Act, a revision cannot be treated as an appeal, but that does, not mean that the revisional authority is not entitled to take into consideration the gross errors of fact committed by the courts below. Although even in terms of provision of section 217 of the Chotanagpur Tenancy Act, a revision cannot be treated as an appeal, but that does, not mean that the revisional authority is not entitled to take into consideration the gross errors of fact committed by the courts below. In my opinion, the provision of section217 confers upon the revisional authority a very wide power which is not circumscribed by any statutory limitation.” The Court noted that no limitation as under section 115 of the Code of Civil Procedure had been imposed upon the revisional authority under section 217 of the Chotanagpur Tenancy Act, and held that the revisional authority must consider revision applications filed before it in their proper perspective. 36. It is apparent from the order of the respondent No.2 that he did not consider the case of the parties on merits nor applied his mind to the evidence on record. 37. In view of the aforesaid it appears to me that the authorities below and in particular the respondents Nos. 2 and 3 failed to consider the case of the parties and the evidence on the record in their proper perspective proceedings under section 71(A) of the Chotanagpur Tenancy Act, affect valuable existing rights and title to property and the same cannot be disposed of casually or in a summary manner to the extent as aforesaid the authorities below had committed errors which appear on the face of the record calls for on the facts of the record and calls for interference. 38. For the reasons aforesaid I am unable to upheld the judgment and order under appeal and allow the appeal. I directed that the order respectively dated the 27th September, 1977, 25th January 1980, and 11th August, 1980, passed by the respondents Nos. 4, 3, and 2 respectively, contained in Annexure 8, 9 and 10 to the memorandum of appeal, which were also annexure to the writ petition, be quashed and remand the case to respondent No.4 for being considered afresh in accordance with law and in the and in the light of this judgment. If asked for, the respondent No. 4 will allow the parties to adduce further evidence as they any desire. The appeal is disposed of accordingly without any order as to be costs. I agree. Appeal admitted.