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2001 DIGILAW 699 (JHR)

Suraj Sao v. Hiralal Sao

2001-09-26

GURUSHARAN SHARMA

body2001
JUDGMENT Gurusharan Sharma, J. 1. Nathuni Sao and Rameshwar Sao were recorded tenants of Plot No. 916, having an area of 17 decimals, situated in village Chainpur, within Palamu district. It was rent free land. 2. By registered sale deed dated 5.1.1943 Nathuni Sao sold his house over eastern half portion of the said plot to Shesh-man Sao, who in his turn sold it to plaintiffs father, Keshar Sao, through registered sale deed dated 21.2.1959. 3. Keshar Sao died in the year 1972, leaving behind his two sons, namely, Ganesh Sao, plaintiff and Raghubir Sao. He had one more son, Hazari Sao, who had already predeceased him. Hence, plaintiff being the eldest son filed the suit in the capacity of Karta of his joint family. 4. Sudama Sao, sisters son of defendant No. 3, according to plaintiff, had taken two rooms of the house in question on rent from plaintiffs father. Rest portion of the house in his share fell down and thereafter plaintiff constructed a big room. 5. Plaintiffs further case was that the said Sudama Sao by practising fraud caused a proceeding under the Bihar Privileged Persons Homestead Tenancy Act. 1947, being Case No. 8 of 1981-82 and obtained a Parcha in respect of 5 decimals land of plot No. 916. 6. Plaintiff filed review petition and the Circle Officer made enquiries and found that Sudama Sao possessed 1.04 Acres land at village Kamalpur and he was not a privileged tenant within the meaning of the said Act and as such recommended for cancellation of the Parcha. Sudama was merely tenant in two rooms and had no concern with the open portion of plot No. 916. 7. A proceeding under Section 145 of the Code of Criminal Procedure was also started in respect of the said land, which was decided against the plaintiff. 8. Defendants I and 2 supported the plaintiff, whereas defendants 3 and 4 con- tested the suit. According to contesting defendants, plot No. 916 was recorded as Gairmazrua Malik land and in remarks column of Khatiyan Nathuni Sao and Rameshwar Sao were shown in possession over the house and Sahan thereon. They denied story of induction of defendant No. 4 as tenant. Section 18 of the said Act clearly ousted Jurisdiction of civil Court and as such order of Collector under Act was final. They denied story of induction of defendant No. 4 as tenant. Section 18 of the said Act clearly ousted Jurisdiction of civil Court and as such order of Collector under Act was final. The successor Circle Officer had no jurisdiction to review the order and to recommend for cancellation of Parcha already issued to defendant No. 3. Karkchari and Circle Inspector after finding possession of defendant No. 4 over the suit land had reported for granting parcha. 9. The contesting defendants admitted plaintiffs possession over 3-1/2 decimals land of plot No. 916 towards West of the suit land, having an area of 5 decimals. 10. The Court of appeal below held that the suit land never vested in the State of Bihar and the plaintiff proved his title over it. His father had purchased 8-1/2 decimals land by registered sale deed dated 21.2.1959. His vendor Sheshman Sao had acquired the same from Nathuni Sao through registered sale deed dated 5.1.1943. Thus possession of defendant No. 4 was permissive, only as a tenant in two rooms, standing over 3 decimals of the suit land. 11. Exhibit 5/A, Khatiyan of a different village Kamalpur of Madhya Pradesh shows that Sudama Sao, son of Banwari Sao of village Kamalpur possessed 1.4 acres land and as such, it was not correct to say that he was having less than 1 acre land, and, therefore, he was a privileged person within the meaning of the said Act. This aspect of the matter was not considered by the Collector under the Act and accepting Sudama Sao to be a privileged tenant within the meaning of the Act, Parcha was issued to him. 12. Defendants contention was that the land belonged to the State, but if it was correct, then the provisions of the Act were not available and the entire proceeding was without jurisdiction. It was, therefore, established that defendant No. 4 was wrongly treated to be a privileged person within the meaning of the Act and the entire proceeding in relation to BPHT Case No. 8 of 1981- 82 was null and void. 13. It was, therefore, established that defendant No. 4 was wrongly treated to be a privileged person within the meaning of the Act and the entire proceeding in relation to BPHT Case No. 8 of 1981- 82 was null and void. 13. In the aforesaid circumstances, the bar of Section 18 of the Act was not applicable with respect to the present suit, which was filed for declaration that the plaintiff had got valid title over the suit property mentioned in Schedule B to the plaint and for further declaration that defendant No. 3 and 4 had no concern therewith on the basis of the Parcha granted to them. 14. It is true that the Parcha in question was granted on 16.9.1981 and the present suit was filed in the year 1985. 15. Mr. Lal, counsel for the appellants, submitted that the suit was covered under Article 100 of the Limitation Act, 1963, which provides one years time for filing a suit against such orders in question dated 16.9.1981, because result of the suit depends on setting aside this order. 16. Mr. N.K. Prasad, Senior Advocate appearing on behalf of respondents, submitted that the claim of defendants 3 and 4 was based on the Parcha said to have been issued under the provisions of the Act which was illegal and without jurisdiction. There was no question of making a prayer to set aside such order, which was null and void. It was further submitted that the present suit was covered by Article 64 of the Limitation act and therefore, period of limitation in such suits was twelve years. 17. A proceeding under Section 145 of the Code was also initiated. The period of limitation for filing the suit will start from 29.7.1984, on which date final order was passed in the said proceeding. The suit was filed within the time prescribed. In the circumstance, I find that the suit was not barred by time. 18. In such circumstance. I find no reason to interfere with the impugned judgment and decree. This appeal is accordingly, dismissed, but without costs. Let the lower Court records be sent down immediately. 19. Appeal dismissed.