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2002 DIGILAW 708 (JHR)

Lakho Oraon v. State Of Bihar

2002-07-04

LAKSHMAN URAON, SUDHANSU JYOTI MUKHOPADHAYA

body2002
JUDGMENT S.J. Mukhopadhaya, J. 1. The appellant being dissatisfied with the order dated 9th September, 1997 passed by the learned Single Judge in CWJC No. 3850 of 1996 (R) has challenged the same. By the foresaid order, the learned Single Judge asked the writ petitioner to avail alternative remedy of appeal and to bring to the notice of the appellate authority all the facts and points as raised in the writ petition who, in his turn, was directed to decide the same. 2. The case of the appellant-writ petitioner is that the land bearing Plot Nos. 680, 683 and 684, Khata No. 57 measuring 2.20 acres, belongs to him. It was surrendered by the recorded ratyat in the year 1935 and settled to the grand- father of the appellant by Soda Hukumnama in the year 1935 and put him in possession. Since then the ancestors of the appellant were cultivating the lands, enjoyed peaceful possession and after their death, the appellant inherited the same being their legal heir and is in peaceful possession over the same. 3. Further case of the appellant is that at the instance of his father, a revision case under Section 89 of Chotanagpur Tenancy Act (C.N.T. Act for short) was registered as M.J.C. No. 21/Mandar/1986 and it was allowed in favour of his father vide order dated 22nd July, 1988 for carrying out necessary corrections in the record. On the application of appellants father, Mutation Case No. 53/R/27/R 1988-89 was instituted after notice to persons, including the 7th Respondent-Charwa Oraon and taking into consideration that the father of appellant was in possession, it was mutated in the name of his father. 4. The grievance of the appellant is that the 7th Respondent filed an application under Section 71 -A of CNT Act, for its restoration in his favour. In the said case, his father was impleaded as party, though died on 3rd February, 1989. Without bringing the aforesaid fact to the notice of the competent authority, the proceeding under Section 71 -A of the CNT Act, proceeded against a dead person and impugned order was passed on 3rd June, 1994 in SAR Case No. 236/87-88, in pursuance of which consequential letter dated 4th September, 1996 was issued to dispossess the appellant. Without bringing the aforesaid fact to the notice of the competent authority, the proceeding under Section 71 -A of the CNT Act, proceeded against a dead person and impugned order was passed on 3rd June, 1994 in SAR Case No. 236/87-88, in pursuance of which consequential letter dated 4th September, 1996 was issued to dispossess the appellant. Further case of the appellant is that the appellant was also not noticed having not substituted in place of his father and the orders were passed behind his back. 5. The counsel for the appellant drawn attention towards Section 215 of the CNT Act, to suggest that the appeal can be preferred against an order under Section 71-A of the CNT Act, only if one of the parties to the case is not satisfied relating to declaration if given in respect to right and title. It was submitted that the appellant being not a parry before the first authority in SAR Case No, 236/87-88, has no right to prefer appeal. If he moved in appeal, the appellate authority may reject the appeal being not maintainable. 6. Generally, this Court do not interfere with an order passed by the learned Single Judge, if a person is asked to avail alternative remedy of appeal. However, in the present case as the original order was passed in the year 1994, the appeal was preferred by appellant in the year 1997, it was admitted and in spite of notice, the 7th Respondent did not choose to appear and oppose the prayer, we are Inclined to decide the case on merit. 7. As admittedly, the impugned order dated 4th July, 1994 was passed in SAR Case No. 236/87-88 against a dead person without notice to the appellant and consequential letter dated 4th July, 1996 was issued on the basis of such order, both the order and letter are set aside. The SAR Case No. 236/87-88 stands remitted to the authority concerned to determine the application under Section 71-A of the CNT Act, preferred by the 7th Respondent after notice to the 7th Respondent and the appellant. 8. If the 7th Respondent fails to file a petition for substitution of heirs and legal representatives of Late Mangra Oraon, father of appellant within a reasonable period from the date of receipt of notice, the authority may pass appropriate order. 9. 8. If the 7th Respondent fails to file a petition for substitution of heirs and legal representatives of Late Mangra Oraon, father of appellant within a reasonable period from the date of receipt of notice, the authority may pass appropriate order. 9. In view of the decision given on merit, the order passed by the learned Single Judge on 9th September, 1997 in CWJC No. 3850 of 1996 (R) is set aside. 10. The appeal is allowed with the foresaid observations and directions. No cost. Lakshman Uraon, J. 11. I agree.