N. Subramanian @ Shri Mani Iyer v. State of Bihar — 1989 DIGILAW 229 (PAT)

JUDGMENT S. B. Sinha, J.-This writ application is directed against an order dated 29.9.1988 passed by respondent no. 3 as contained in Annexure-8 to this writ application in purported exercise of his power conferred upon him under section 90 of the C. N. T. Act and thereby rectifying an alleged error in the finally published record of rights in respect of plot nos. 350, 351, 352, 353, 354, 355, 356 and 357 of the Mouza Dimna, P. S. Mango, Dist-Singhbhum. 2. The facts of the case lie in a very narrow compass. 3. Admittedly by reason of a sale deed dated 25.6.1965, the father of the petitioner, late S. N. Iyer purchased 4 big has of land out of the aforementioned plots and came in possession thereof. Allegedly the father of the petitioner and after his death the petitioner have been in possession of the entire 12 bighas of the land belonging to the predecessor in the interest of the respondent nos. 4 to 6 and acquired title in relation thereto by adverse possession. 4. Admittedly, in village Dimna, the survey settlement operations in terms of Chapter XII of the Chotanagpur Tenancy Act, 1908, were initiated. In the said survey settlement operations the plot nos. as indicated hereinbefore were renumbered as 1730, 1732, 1735, 1740 1741 and 1742 in the finally published record of rights. III tae finally published record of rights dated 10.8.1979 the name of the petitioners were recorded therein. 5. On or about 16.9.1984, the respondents no. 4 to 6 being the sucessors in interest of the late V. C. Rivett, the vendor of the petitioner's father filed art application before the respondent no. 3 for correcting the error allegedly crept in the of, aforementioned record of rights in terms of section 90 of the Chotanagpur Tenancy Act. By reason of the impugned order dated 29.9.1988 the said application has been allowed. 6. Mr. M. Y. Eqbal, learned counsel appearing on behalf of the petitioner has raised a short question. According to the learned counsel the jurisdiction of Collector under the said Act in terms of section 90 thereof is a limited one and while exercising a power under section 90 of the said Act, he cannot embark upon an inquiry into the disputed question of title and possession. In support of his aforementioned contention, Mr. According to the learned counsel the jurisdiction of Collector under the said Act in terms of section 90 thereof is a limited one and while exercising a power under section 90 of the said Act, he cannot embark upon an inquiry into the disputed question of title and possession. In support of his aforementioned contention, Mr. Epbal relied upon an unreported decision of the Court in Mewalal Nigam vs. The State of Bihar and others, in C. W. J. C. C. no. 1001/83 (R) disposed of on 4th February 1988 and order dated 3.7.1987 passed by a Division Bench of this Court in Sisir Kumar Sarkar vs. The State of Bihar, in C. W. J. C. no. 1855/86, (R) Relying on the aforementioned decisions Mr. M.Y. Eqbal submitted that respondent nos. 4 to 6 could have filed a civil suit if they intended to challenge the title or possession of the petitioner in respect of the 8 bighas of land which they have acquired by prescription hut the application under section 90 of the Chotanagpur Tenancy Act was not maintainable. 7. Mr. N. K. Prasad, learned counsel appearing on behalf of the respondent nos. 4 to 6, on the other hand, submitted that from a plain reading of section 90 of the Act it would appear that the respondent no. 3 was delegated with the power to adjudicate upon an application filed under section-90 of the Act and was thus empowered to correct any material manifest error occuring in the record of rights. According to the learned counsel, in this case, a manifest error has occurred, In view of the fact that admittedly the father of the petitioner by reason of the aforementioned deed of sale dated 25.6.1965 (Annexure B contained in the counter affidavit) purcha5cd only 4 bighas of land and not the entire 12 bighas of land Learned counsel further submits that the revenue authorities while preparing the record of rights could not have considered the question as to whether the petitioners have acquired a title by adverse possession or not and in this view of the matter the respondent no. 3 was competent to pass the impugned order as contained in Annexure-8 to the writ application. 8. 3 was competent to pass the impugned order as contained in Annexure-8 to the writ application. 8. Section-90 of the Chotanagpur Tenancy Act reads as follows:- "In case of discovery of bona fide or material error in record of-rights within five years from the date of the certificate of its final publication under sub-section (2) of section 83, the Deputy Commissioner or any Revenue Officer specially empowered by the State Government in this behalf may, on his own motion, or on application made to him within the said period, after holding an enquiry in the prescribed manner by order in writing, direct that such error shall be corrected in the manner specified in the order". Provided that no such correction shall be made- (i) until reasonable notice has been given to the parties concerned to appear and be heard in the matter. (ii) if a suit under section 87 or clause (8) of section 252 or an appeal under clause (10) of section 11 or section 253, affecing such an entry is pending". 9. From a plain reading of the aforementioned provision it is clear that the Deputy Commissioner or any revenue authority specially empowered by the State Government may take recourse to the aforementioned provision only in the event of discovery of bonafide or material error in the record of rights. 10. This court in the case of Mewalal Nigam vs. The State of Bihar held as follows:- "From a perusal of the aforementioned provision, in my opinion, there cannot be any doubt that the authority concerned exercises a very limited jurisdiction. While exercising the purported jurisdiction under section 90 of the Act, the authority cannot embark upon a disputed question of title and possession nor can it question the legality or propriety or otherwise of an order passed by a revenue authority or by the revisional authority which in this case was an authority higher than, respondent no. 2. To me it appears that the impugned order was wholly unwarranted. On a plain reading of section-90 of the said Act, it is evident that a settlement which has been made in favour of person by the ex-tenure holder whether legally or illegally can not be questioned in a proceeding under section 90 of the said Act. 2. To me it appears that the impugned order was wholly unwarranted. On a plain reading of section-90 of the said Act, it is evident that a settlement which has been made in favour of person by the ex-tenure holder whether legally or illegally can not be questioned in a proceeding under section 90 of the said Act. Only the question of title can be gone into in a suit filed in terms of section 81 of the said Act which again is subject to the judgment and decree passed by a civil court." 11. In Sisir Kumar Sarkar vs. The State of Bihar also this court has allowed the writ application holding therein that if a question of title arises the remedy of respondents was to file a suit. 12. Under the said Act, the revenue authorities may carryon survey settlement operation in order to make entries in terms of Chapter XII of the Chotanagpur Tenancy Act, inter alia for entering in the record the name of such person who is a tenant or occupant in respect of the land in question. The word 'tenant' occuring in chapter XII of the Act must be given the same meaning which is contained in section 3 (XVI) of the Act. 13. There cannot be any doubt that a right to be recorded as a tenant in the record of rights may also arise when the tenant claims title by prescription. Such a question cannot be said to be a matter falling out side the scope of chapter XII of the said Act. 14. In fact as has been held in a Full Bench of this Court in Paritosh Maity vs. Ghasiram Maity reported in 1987 P. L. J. R. 354 that ultimately such a question can only be adjudicated upon by civil court, it may be mentioned that even in Chapter XII of Act, in terms of section 87(e) thereof of the Act, a suit before a revenue officer is maintainable for the purpose of determining a question of title. Decrees passed in such a suit are appealable ones. 15. In this view of the matter, in my opinion, it cannot be said that the jurisdiction of the respondent no. 3 while exercising his power conferred upon him under section 90 of the Chotanagpur Tenancy Act was extended to decide disputed question of title based on adverse possession. Decrees passed in such a suit are appealable ones. 15. In this view of the matter, in my opinion, it cannot be said that the jurisdiction of the respondent no. 3 while exercising his power conferred upon him under section 90 of the Chotanagpur Tenancy Act was extended to decide disputed question of title based on adverse possession. A disputed question of title cannot be said to be a bonafide mistake or a material error. Such bonafide mistake or material error, must be found out on the basis of the records of the case itself and while doing so he cannot adjudicate upon a dispute involving serious question of title or possession in respect whereof, as indicated in Mewalal's case as also Sisir Kumar Sarkar's case the remedies have been provided for in the Chotanagpur Tenancy Act. 16. In the result this writ petition is allowed and the order dated 29.9.1988 as contained in Annexure-8 to the writ application is quashed. In the facts and circumstances of the case, there shall, however, be no order as to costs.