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2003 DIGILAW 1037 (JHR)

Jaipal Karmali v. Bishun Sundi

2003-08-23

GURUSHARAN SHARMA

body2003
ORDER Gurusharan Sharma, J. 1. The plaintiff filed the suit for declaration of title, confirmation of possession or in alternative for recovery of possession over 69 decimals land bearing Plot Nos. 1332 and 1875 appertaining to Khata No. 6 situated in village Kuju P.S. Mandu, District Hazaribagh and for further declaration that the order dated 8.8.1978 passed by the Additional Collector, Hazaribagh, in Appeal No. 82 of 1976, under Section 46(4) of the Chotanagpur Tenancy Act, 1908 (hereinafter to be referred to as the Act) was illegal and without jurisdiction. 2. The suit was decreed in part, holding that the order passed under Section 46(4) of the Act was illegal and without jurisdiction and the plaintiff acquired right, title and interest over the suit land on the basis of raiyati settlement made by the then landlord in the year 1926 and was also in possession thereof. 3. Defendant No. 1 preferred appeal against the said judgment and decree, wherein by impugned judgment and decree dated 10th May, 2002 the trial Courts judgment and decree was modified. It was held that none of the parties had title over the disputed land. However, since the plaintiff was in possession, therefore he acquired possessory title over the suit land, whereas the defendant had neither title nor possession. 4. Admittedly, the suit land stood recorded in the cadastral survey Khatian as raiyati land of Ahlad Karmali and Paltaniya Karmali, who were said to have abandoned the same and went to Assam with their family. Consequently, the said land became bakast of the then landlord, who made raiyati settlement thereof by hukumnama dated 11.5.1926, in favour of plaintiffs father Shukar Sundi. After death of his father in the year 1947, plaintiff and his brother Bhim Sundi partitioned the properties, the suit land fell into plaintiffs share. 5. In the year 1968, the defendant No. 1 and his brother claiming to be the descendants of the recorded tenants aforesaid advanced their claim over the suit land and as such the plaintiff filed Title Suit No. 2060 of 1968 in the Court of Munsif, Hazaribagh against them, which was decreed on compromise as the defendants had relinquished their Interest therein. However, subsequently the defendant No. 1 filed Suit No. 147 of 1975-76, purporting to be under Section 46(4) of the Act, before the Deputy Collector, Land Reforms, Hazaribagh which was allowed and Appeal No. 82 of 1976 filed by the plaintiff was also rejected by the Additional Collector, Hazaribagh, on 8.8.1978 with observation that although Jaipal Karmali (defendant No. 1) had no relationship with the recorded tenants, but since he was a tribal, therefore, his possession must be restored. 6. Mr. Rajiv Ranjan, counsel for the appellant submitted that under the 3rd provisio to Section 71-A of the Act, even if the plaintiff has acquired title by adverse possession in respect of the suit land which belonged to a raiyat who was a member of the Scheduled Tribes in contravention of Section 46 or any other provision of the Act, a restoration order has to be passed by the Deputy Commissioner subject to payment of such sum of money as may be determined and as such the Court of appeal below has committed an error in decreeing the plaintiffs suit on the basis of possossory title. 7. Admittedly, the suit land is situated in Hazaribagh district, which is not declared as a scheduled area under the Scheduled Area (Part A States) Order, 1950, by the President of India. 8. Section 71-A of the Act has been brought under the Statute by virtue of Section 4 of the Bihar Scheduled Areas Regulation, 1969. The said Regulation applies to the scheduled areas only. Section 6 of Part C of the Fifth Schedule of the Constitution of India requires that the areas declared by the President by an order passed in exercise of powers under the Schedule Area (Part A States) Order, 1950, will be known as scheduled area for the purpose of the Constitution of India. Hence, provision of Section 71-A of the Act has no application in the district of Hazaribagh. The defendants, therefore, cannot take advantage thereof. 9. Section 46(4) of the Act required that at any time within three years after expiration of the period of transfer in violation of the provision of Section 46, the Deputy Commissioner on the application of a raiyat shall put the raiyat into possession of such holding or portion in the prescribed manner. The defendants, therefore, cannot take advantage thereof. 9. Section 46(4) of the Act required that at any time within three years after expiration of the period of transfer in violation of the provision of Section 46, the Deputy Commissioner on the application of a raiyat shall put the raiyat into possession of such holding or portion in the prescribed manner. Such resort to Section 46(4) of the Act was only permissible if application for restoration was filed within the period of three years of the transfer. In the instant case, the plaintiff claimed to have obtained his interest either by virtue of raiyati settlement in the year 1926 or by purchase in the year 1952, although the Court of appeal below negatived his contention and recorded a finding of fact that the plaintiff was in physical possession of the suit land and thereby acquired possessory title. Hence, application for restoration filed by defendants some time in the year 1975-76 purporting to be under Section 46(4) of the Act was barred by time. Besides this, the defendants also failed to dislodge the finding of the revenue Court that they had no relationship with the recorded tenants and, therefore, they had no authority to go for restoration under Section 46(4) of the Act. I, therefore, find no reason to interfere with the impugned judgment and decree passed by the Court of appeal below. There is no merit in this Second Appeal. It is dismissed.