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2002 DIGILAW 424 (JHR)

Shyam Narayan Tiwary v. State Of Bihar

2002-03-27

M.Y.EQBAL

body2002
ORDER M.Y. Eqbal, J. 1. This writ application is directed against the order dated 20.6.2000 passed by the Deputy Collector. Land Reforms, Ranchi in Mutation Case No. 2/99-2000, order dated 23.10.1998 passed by Circle Officer, Ranchi in case No. 2669 R-27 of 1989-90 whereby prayer of the petitioner for making correction in Register II in respect of lands of Khata No. 362, plot Nos. 1996 to 1998 having an area of 5.80 acres has been rejected. 2. The case of the petitioner is that he along with his brothers (proforma respondents) are the occupancy raiyats of the land which was part and parcel of Survey Khewat No. 2/.l of village Misirgonda and it was recorded as tenure interest of Mahadeonath Misir and Makhsudannath Misir of village Tanti having 4 annas share. The disputed plots which was consisted of a tank and pind, was recorded within Khewat No. 15 which was joint khewat of Khewatdars. Petitioners further case is in 1942 there was partition of land of R.S. Khewat No. 15, Khata No. 362, Plot Nos. 1996, 1997, 1998 and 1999 fell in the share of Mahadeonath Misir and Makhsudannath Misir who came in exclusive possession of the same and use the tank for irrigation and fishing purpose. In 1941 the above named tenure holders settled the aforesaid tank and pind to Yogendra Narayan Tiwari, father of the petitioner by virtue of registered deed of settlement. After settlement petitioners father Yogendra Narayan Tiwari exercised his exclusive right and enjoyment over the said tank till his death. It is contended that in 1955-56 respondent State of Bihar under mistake tried to settle the said raiyati tank as Sairat and attempted to occupy the same. Lessee of the petitioners father Mangra Oraon objected to the same and after verification and recommendation of the Circle Officer, Kankc the proceeding was dropped. The dispute arose when in 1990 some interpolation was made in Register II and the name of one Damyariti Devi wife of Balram Misir was alleged to be fraudulently entered in place of the petitioner. On the basis of said entry Damyanti Devi executed sale deed in favour of Ram Das Gupta and others, Petitioner then filed Title Suit being T.S. No. 136/90 against Damyanti Devi and others for declaration that the sale deed dated 27.5.1987 executed by her was illegal and void. On the basis of said entry Damyanti Devi executed sale deed in favour of Ram Das Gupta and others, Petitioner then filed Title Suit being T.S. No. 136/90 against Damyanti Devi and others for declaration that the sale deed dated 27.5.1987 executed by her was illegal and void. The suit was decreed in favour of the petitioner by the Munsif, Ranchi holding that petitioners have got title over the said property and they are in possession of the same and the sale deed executed by Damyanti Devi was wholly illegal and void. Against the aforesaid judgment and decree passed by the Munsif, the defendant Damyanti Devi filed Title Appeal being T.A. No. 18/96 in the Court of Judicial Commissioner, Ranchi which was ultimately heard and decided by Vth Additional Judicial Commissioner, Ranchi who confirmed the judgment and decree of the Munsif and dismissed the appeal. The defendant then filed Second Appeal being S.A. No. 131/98R, which was also dismissed by this Court on 1.11.1999. It is therefore, contended that the title and possession of the petitioner and his brother over the said Tank and pind was thus upheld upto this High Court. After passing of the judgment and decree the petitioner and his brother produced the same before the Circle Officer where the said case No. 2669-R-27 of 1989-90 was pending and prayed for disposal of the case in view of decree passed by Civil Court. It is stated that the Circle Officer took an strange view contrary to the order of the Additional Collector and even without attaching any importance of the Civil Courts Judgment and decree rejected that application of the petitioner and his brothers observing that petitioner may file appeal against the order before the competent authority. Petitioner then filed appeal before the D.C.L.R., Ranchi being Jamabandi Sud-harhama Appeal No. 2/99-2000. It is contended that inspite of production of judgment and decree passed by Civil Court and confirmed by the High Court, the D.C.L.R. has taken peculiar view in the order dated 20.6.2000 and rejected the claim of the petitioner holding that the Tank and pind belong to the State of Bihar and the same was transferred to the Fishery Department and the Fishery Department used to make Sairat Settlement of the said Tank and therefor the claim of the petitioner is baseless. The respondents State of Bihar filed their counter-affidavit and the stand taken by them is that the judgment and decree passed by the Civil Court and confirmed upto this Court, the State of Bihar and the present respondents were never made party, although the property in question is under the jurisdiction and possession of Department of Fishery, Government of Bihar. It is further stated that the Tank appertaining to the said disputed land has been settled in 1996-97 for a period of three years to one Shashl Kumar Munda for a sum of Rs. 1,510/- only. It is further stated that petitioner has concealed the fact in the proceeding that the Tank in question was in possession of the State of Bihar. Respondents further case is that the claim for correction in Register II does not arise for the reason that Jamabandi never exists in the name of the petitioners father Yogendra Nath Tiwari. A fictitious Jamabandi was existed in the name of one Damyanti Devi. wife of Bal- ram Nath Misir, which was cancelled by the Sub-Divisional Magistrate, Sadar Ranchi vide Order dated 16.6.1998 in a proceeding initiated by the Circle Officer. The State of Bihar transferred the Tank and pind in question to the Fishery Department in 1992 and the Tank was regularly settled by the Fishery Department. 3. I have heard Mr. N.N. Tiwari, learned counsel appearing for the petitioner and Mr. R.K. Marathia, G.P. II. 4. Mr. Marathia, learned State counsel mainly contended that the plots in question are recorded as Gair Mazarua Malik lands in the R.S. Record of Rights. Thus the disputed tank and its embankment are the property of the Government. Learned counsel further submitted that the tank has been regularly settled by the Fishery Department on auction since 1971 and the last settlement was made in the year 1990-91 to 1992-93. As a matter of fact, the Government of Bihar, Revenue and Land Reforms Department transferred the tank to the Fishery Department vide letter dated 17.3.1992 of the Circle Officer, Town Anchal, Ranchi. Learned counsel further submitted that a fictitious Jamabandi did exist in respect of the land in the name of Damyanti Devi which was cancelled by the Sub-Divisional Officer, Sadar, Ranchi vide his order dated 16.6.1998 in a proceeding initiated by the Circle Officer. Learned counsel further submitted that a fictitious Jamabandi did exist in respect of the land in the name of Damyanti Devi which was cancelled by the Sub-Divisional Officer, Sadar, Ranchi vide his order dated 16.6.1998 in a proceeding initiated by the Circle Officer. Learned counsel lastly submitted that the tank in question is a jalkar Sairat of the State of Bihar, now Jharkhand and the Jamabandi was opened in the name of the petitioner or his predeces-sor-in-interest on the basis of registered deed executed by the ex- landlord in the year 1942. 5. Having regard to the stand taken by the respondent-State of Bihar, I am of the opinion that before deciding the validity of the impugned orders passed by the revenue authorities it is necessary to consider whether the Judgment and decree passed in the aforementioned suit and affirmed upto the High Court, is binding on the respondent-State. 6. As noticed above, sometimes in 1990 some interpolation was made in Register II and the name of one Damyanti Devi was alleged to be fraudulently entered in the revenue records. On the basis of the said entry Damyanti Devi executed sale deed in favour of Ramdas Gupta and others. In 1993 the present petitioner filed an objection against the demand opened in the name of the person on the basis of the sale deed executed by Damyanti Devi. The Additional Collector, Ranchi disposed of the said objection in Misc. Case No. 108/92-93. It is worth to quote the relevant portion of the order passed by the Additional Collector in the aforesaid proceeding :-- "In a report submitted by the C.O., Town Anchal on the present state of subject matter contained in his memo No. 412, dated 15.5.1995 subsequent to local inspection on the direction of this Court, it has been confirmed that the subject matter are still intact as a tank and its embankments. It has also been stated in the said report, quoting residents of the said village Misirgonda alias Pahargonda by name that for years ago the said tank (plot No. 1998 of the subject matter) was used to be auctioned for settlement by the State but not at present it has remained party and is not used for rearing fishes for years and is in common use of the villagers for their catties and performance of religious rites it is not possessed by any body and is a sarkari tank. From the said report it has been confirmed that the subject matter are still intact in their original form of a tank and its embankments. On the point of possession, the aid report is conflicting with what the position stands over the land in issue. Further again on the point of possession the opposite party No. 2 while finally arguing the case on behalf of himself and the opposite party Nos. 3 to 6 on 24.4.1995 has himself admitted before this Court that they are not in possession of the subject-matter of since purchase thereof by them. This admission has been duly recorded in the order sheet of the said date of this case. It appears admitted that neither Damyanti Devi nor its sub- sequent purchasers never came in possession over the said land or tank. It is now well established that the opposite parties were never in possession, demand was opened illegally in the name of Damyanti Devi. Subsequent mutation as were done illegally ignoring the factum of possession. Since the sale of land in the name of Guptas vide registered deed No. 4752 on 27.5.1987 for a sum of Rs. 25,000/- for the value of 5.88 acres of land situated at Mishirgonda which comes to Rs. 42/- approx per decimals appears to be scandalous. It indicates lot of untold stories. The C.O. town Anchal by his Memo No. 290 (ii) dated 10.4.1995 has sought direction of this Court to pass order in mutation case No. 2669 (R) 27 of 89-90 of the claimant. 42/- approx per decimals appears to be scandalous. It indicates lot of untold stories. The C.O. town Anchal by his Memo No. 290 (ii) dated 10.4.1995 has sought direction of this Court to pass order in mutation case No. 2669 (R) 27 of 89-90 of the claimant. In view of the above facts, I direct the C.O. Town Anchal to suspend the demand running in the name of Damyanti Devi of village Mishir Gonda and also to consider the subject-matter in favour of the claimant in the said mutation case in accordance with material facts on record and as per decision of competent authority of Civil Court where title is still pending. Communicate the order to the C.O. Town Anchal for compliance and to the L.R.D.C. Sadar, Ranchi and the S.D.O. Ranchi for their intimation. Copy of this order should also be sent to the learned Deputy Commissioner and O.P." 7. From perusal of the aforesaid order it appears that the C.O. in his report, after local inspection, stated that the property in question is in common use of the villagers and was treated as Government land. The Additional Collector, therefore, in view of conflicting evidences of title and possession directed that mutation shall be done only after the matter is finally adjudicated by the Civil Court. It was the consistent stand of the respondent- State that the disputed tank and its embankments are the properties of the State Government and jamabandi was never running in the name of the petitioner or his predecessor-in-interest. 8. Curiously enough the petitioner has not produced any documentary evidence to show that jamabandi in respect of the property in question was running either in his name or in the name of his predecessor-in-interest nor any rent receipt has been filed in support of payment of rent and taxes in respect of the land and the tank with its embankments. Curiously enough the petitioner filed title suit No. 136/90 against the purchasers of Damyan-ti Devi for declaration that the sale deed dated 27.5.1982 executed by defendant Nos. 6 and 7 in favour of defendant Nos. 1 to 5 in respect of the tank and pind is illegal, invalid and not binding upon the plaintiffs. Curiously enough the petitioner filed title suit No. 136/90 against the purchasers of Damyan-ti Devi for declaration that the sale deed dated 27.5.1982 executed by defendant Nos. 6 and 7 in favour of defendant Nos. 1 to 5 in respect of the tank and pind is illegal, invalid and not binding upon the plaintiffs. In view of the nature of the relief sought for by the petitioner in the said suit, it was rightly held by the Munsif that the State of Bihar was not a necessary party. The finding recorded by the Munsif with regard to right, title interest and possession of the plaintiff is, however, not binding as against the respondent-State. The Munsif, while deciding issue No. 4, has held that since no relief has been prayed for against the Collector, he cannot be said to be a necessary party. 9. Having regard to the aforementioned facts, I am of the view that if the petitioner is able to satisfy the revenue authorities that before the interpolation was made in the revenue records in 1990 jamabandi was running in the name of the petitioner or his predecessor-in-interest and they were always treated as a raiyat in possession of the land together with tank and embankments by the State of Bihar, then certainly the petitioners claim for correction of jamabandi on the basis of the decree passed by the Civil Court cannot be refused. The matter, therefore, needs reconsideration by the Land Reforms Deputy Collector, Ranchi. 10. This writ application is, therefore, disposed of with a direction to the Land Reforms Deputy Collector, Sadar, Ranchi to reconsider the application of the petitioner for correction of jamabandi in the light of the observations and directions made above and dispose of the same by passing fresh order in accordance with law.