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2003 DIGILAW 1107 (JHR)

Lerha Oraon v. State Of Bihar

2003-09-09

TAPEN SEN

body2003
JUDGMENT Tapen Sen, J. 1. The petitioner, in the instant case, has prayed for quashing the order dated 30.12.1997 (Annexure 2) passed by the respondent No. 2 in Ranchi Revenue Revision No. 132 of 1995 allowing the revision thereby setting aside the order dated 24.4.1995 (Annexure 1) which was passed by the Additional Collector, Ranchi in S.A.R. Appeal No. 4-R 14/89-90, whereby and whereunder he had allowed the appeal there by setting aside the order dated 4.8.1988 passed by the Special Officer, Scheduled Area Regulations, Ranchi in S.A.R. Case No. 259 of 1982-83 rejecting the application of the petitioner for restoration of the lands. 2. The lands in question relate to R.S. Plot No. 3721, Khata No. 227, Village :Argora, P.S. : Argora, District : Ranchi, measuring 1.17 acres (hereinafter referred to for the sake of brevity as the said land). 3. The short facts which are necessary to be taken note of are that the petitioner, a member of the Scheduled Tribe, claims that his grand father, Sanicharwa Oraon was the recorded tenant of the said land and had made a transfer of the same through a registered instrument in the year 1946 in favour of one Somra Oraon. However, inspite of the said transfer, the petitioners father (Etwa) who was the son of the recorded tenant, namely Sanicharwa, continued to be in possession thereof. He continued with such possession even on the death of his father, i.e., Sanicharwa Oraon. The petitioner further claims that after the death of his father (i.e., Etwa) he had been in possession of the land. 4. The petitioner further claims that some time, in the year 1965, the respondent No. 6 having no interest in the property whatsoever, forcibly dispossessed the petitioner. Consequently, some time In the year 1982-83, the petitioner filed an application for restoration of the said land under Section 71-A of the Chotanagpur Tenancy Act, 1908 (hereinafter referred to for the sake of brevity as the said Act), which was registered as S.A.R. Case No. 259 of 1982-83. The then Special Officer, Scheduled Areas Regulation, after hearing the case, passed an order on 28.10.1983 restoring the said land in favour of the petitioner whereafter, on 31.12.1983, delivery of possession was given through the Court in favour of the petitioner. 5. The then Special Officer, Scheduled Areas Regulation, after hearing the case, passed an order on 28.10.1983 restoring the said land in favour of the petitioner whereafter, on 31.12.1983, delivery of possession was given through the Court in favour of the petitioner. 5. The further case of the petitioner is that thereafter, the respondent No. 6 began creating disturbances in relation to the peaceful possession of the petitioner which led to a proceeding under Section 145 of the Code of Criminal Procedure before the learned Sub-Divisional Officer, Sadar, Ranchi which was registered as Case No. M-2870/84 (T.R. No. 75/84). 6. In the mean time, being aggrieved by the order dated 28.10.1983, passed in S.A.R. Case No. 259 of 1982-83, the respondent No. 6 filed an appeal before the Additional Collector, Ranchi which was registered as S.A.R, Appeal No. 125 of 1983-84. After hearing the parties, the Additional Collector, Ranchi remanded the same to the Special Officer, Scheduled Areas, Ranchi, to ascertain, after holding an inquiry, as to whether the respondent No. 6 was related to Somra Oraon as an agnate or not? It appears that the S.A.R. Officer passed an order holding that the respondent No. 6 was an agnate of Somra Oraon. However, according to the petitioner, this order was passed without holding any enquiry and behind the back of the petitioner. 7. Being aggrieved, the petitioner filed an appeal before the Additional Collector, Ranchi and after hearing the parties, the Additional Collector again remanded the matter to the Special Officer with a direction that it should be found out clearly whether the respondent No. 6 was an agnate of Somra Oraon or not? 8. The further case of the petitioner is that thereafter, without complying with the aforementioned direction of the Appellate Court, the Special Officer, Scheduled Areas Regulation, Ranchi passed an order on 4.8.1988 holding, once again, that Bandhna (respondent No. 6) was an agnate of Somra Oraon. The petitioner has again claimed that this order was passed without giving any opportunity of hearing to him. 9. Being once again aggrieved, the petitioner filed an appeal before the Additional Collector, Ranchi which was registered as S.A.R. Appeal No. 4-R 15 of 1989-90. 10. The petitioner has again claimed that this order was passed without giving any opportunity of hearing to him. 9. Being once again aggrieved, the petitioner filed an appeal before the Additional Collector, Ranchi which was registered as S.A.R. Appeal No. 4-R 15 of 1989-90. 10. In the meantime, the 145 proceedings which was pending before the Sub Divisional Officer, Sadar at Ranchi vide Case No. M-2870/84 (T.R. No. 75/84) was transferred to the Court of the Executive Magistrate, Sadar and by an order dated 28.3.1990, the said Executive Magistrate declared possession in favour of the petitioner and restrained the respondent No. 6 from disturbing his possession, unless dispossessed by a Court of competent civil jurisdiction. At paragraph 7 of the writ petition, it has been stated that thereafter, the respondent No. 6 allegedly again started interfering which gave rise to the filing of a suit by the petitioner which was registered as T.S. No. 147 of 1990 before the learned Munsif at Ranchi wherein he prayed for declaration of his right, title and interest as also for confirmation of possession. According to the petitioner, the said suit was decreed whereafter the respondent No. 6 filed Title Appeal No. 71 of 1993 before the learned Judicial Commissioner, Ranchi, which was eventually transferred to the Court of the VIIIth Additional Judicial Commissioner, Ranchi. That appeal, according to the petitioner, was erroneously allowed, b,ut with an observation that it has been found that the plaintiff/respondent (meaning thereby the petitioner) had better title than the defendant (meaning thereby the respondent No. 6) and that he was entitled to retain possession till any legal heir of Somra Oraon took resort to the provision of Section 71-A of the said Act. 11. The respondent No. 6 in his counter-affidavit, however, has stated at paragraph 12 that it is incorrect to allege that the petitioner had filed Title Suit No. 147 of 1990! According to the respondent No. 6, the said Title Suit No. 147 of 1990 was filed NOT by the petitioner, but by the respondent No. 6 himself and the suit was NOT decreed but was dismissed. 12. According to the respondent No. 6, the said Title Suit No. 147 of 1990 was filed NOT by the petitioner, but by the respondent No. 6 himself and the suit was NOT decreed but was dismissed. 12. The aforementioned statement of the respondent No. 6 is correct, because he has brought on record the photocopy of the judgment delivered on 8.12.1994 by the VIIIth Additional Judicial Commissioner, Ranchi vide Annexure A appended to his counter-affidavit and this shows that the appeal was filed against dismissal of the suit filed by the plaintiff/appellant (meaning thereby the respondent No. 6). 13. By judgment dated 8.12.1994, the aforementioned Title Appeal was allowed on contest with costs throughout and the right, title and interest of the plaintiff (meaning thereby the respondent No. 6) over the said land was declared and it was further ordered that if he was out of possession, then in the alternative, he would be entitled to recovery of possession over the said land and accordingly, the judgment passed by the learned Munsif was set aside. 14. In the meantime, the petitioners S.A.R. Appeal No. 4-R 15 of 1989-90 was allowed and by order dated 24.4.1995, the said learned Additional Collector held that the respondent No. 6 had failed to establish his relationship with Somra Oraon and the recorded tenant and that the plea of oral transfer was a planned story without any document and it could not be sustained in the eyes of law. The order dated 24.4.1995 is Annexure 1 to the writ application. 15. Thereafter, the petitioner filed a second appeal before the then Ranchi Bench of the Patna High Court vide Second Appeal No. 15 of 1995(R). By judgment dated 23.1.1996, the aforementioned Second Appeal filed by the petitioner met with failure and it was observed "moreover it was specifically found that the defendant has no right, title and interest over the suit land as claimed by them. By judgment dated 23.1.1996, the aforementioned Second Appeal filed by the petitioner met with failure and it was observed "moreover it was specifically found that the defendant has no right, title and interest over the suit land as claimed by them. It is the consistent finding of both the Courts that in such a position the defendant has got no valid claim of right and title over the suit land." After making the aforementioned observations, the High Court further held as follows :-- "I do not find any force in this second appeal and no substantial questions of law is involved and hence the appeal is dismissed but no order as to costs." The word "defendant" in the aforementioned judgment of the Second Appellate Court obviously means the petitioner, because, the suit had been filed by the respondent No. 6 and others. 16. Thus, the judgment of the First appellate Court vide Annexure A appended to the counter-affidavit of the respondent No. 6 stood confirmed by the judgment of the second appellate Court, namely, the High Court. This order has attained finality and the parties have not been able to state as to whether the judgment of the second appellate Court was set aside by a Superior Court and therefore, this Court has no option but, to proceed on the assumption that the judgment of the VIIIth Additional Judicial Commissioner, Ranchi holding that the appellants (meaning thereby the respondent No. 6 and others) had right, title and interest over the said lands stood confirmed by the judgment of the High Court in S.A. No. 15 of 1995(R) holding that the defendant (i.e., the petitioner) had no valid claim of right or title over the suit land. 17. To add to his woes, after passing of the judgment on 23.1.1996 in Second Appeal No. 15 of 1995(R) by the then Ranchi Bench of the Patna High Court, the Revision which the respondent No. 6 had filed against the order dated 24.4.1995 (Annexure 1), was allowed by order dated 30.12.1997 as contained in Annexure 2 to this writ application and the order of the Additional Collector passed on 24.4.1995 in S.A.R. Appeal No. 4-R 15 of 1989-90 was set aside. 18. Mr. 18. Mr. N.K. Prasad, learned counsel for the petitioner has submitted that the claim of the respondent No. 6 cannot be allowed inasmuch as it is based on an oral sale made in the year 1948 by Somra Oraon to the respondent No. 6. According to him, prior to 1955 an occupancy raiyat who was an aboriginal could transfer land belonging to him only with the previous sanction of the Deputy Commissioner to "another aboriginal". The words aboriginal and "another aboriginal" were substituted by the words "a member of the Schedule Tribe" and "another member of the Schedule Tribe" by Section 3(a)(i) of the Chotanagpur Tenancy (Amendment) Act, 1955 (Bihar Act No. 20 of 1955) and therefore, in the year 1948 an oral transfer also required permission of the Deputy Commissioner. The said statutory requirement having not been obtained. Mr.N.K. Prasad, learned senior advocate submits that the oral sale of 1948 was consequently hit by the provisions of Section 46 of the said Act. 19. I am afraid, such a submission must be rejected because, a Writ Court exercising jurisdiction under Article 226 cannot upset the findings and the judgment delivered by two Courts of competent civil jurisdiction, one of which, being the judgment dated 8.12.1994 passed by the VIIIth Additional Judicial Commissioner, Ranchi and the other being the order of the High Court being judgment dated 23.1.1996 passed in Second Appeal No, 15 of 1995(R). Therefore, the argument to the effect that the claim of the respondent No. 6 being based on an oral sale is misconceived, in the opinion of this Court, CANNOT be accepted and it is accordingly rejected. 20. Mr. N.K. Prasad then challenged the very validity of the suit, First Appeal and the Second Appeal and submitted, with reference to Section 258 of the Chotanagpur Tenancy Act, 1908 that it created a bar to suits and that in view of the said provisions of the said section, no suit could have been entertained in any Court to vary, modify or set aside either directly or indirectly any decision, order or decree of any Deputy Commissioner or Revenue Officer passed in any suit/application or proceedings initiated under the provisions of the said Act save and except on grounds of fraud or want of jurisdiction. 21. I am afraid, this argument of Mr. N.K. Prasad is also not acceptable to this Court. 21. I am afraid, this argument of Mr. N.K. Prasad is also not acceptable to this Court. Firstly, if it were so, then the petitioner could very well have challenged the judgments passed by the VIIIth Additional Judicial Commissioner as also by the Second Appellate Court in a superior forum and could have taken that point. Having not done so, the petitioner cannot, through an application under Article 226 of the Constitution of India, make a claim of non- maintainability of the suit, because, if such a claim is allowed by a Writ Court, it would have the effect of upsetting the judgment of the second appellate Court. A concept, beyond imagination ! 22. The next point of Mr, N.K, Prasad is that by taking recourse to filing of a title suit, the respondent No. 6 deliberately desired to legalise an oral sale of 1948 which is prohibited under the statute vide Section 46 of the said Act. This again, is an argument, which cannot be allowed to be taken before the Writ Court because of the same foregoing reasons. Moreover, the petitioner himself is the grand son of the recorded tenant, namely, Sanicharwa Oraon who had executed a registered instrument in the year 1946 in favour of Somra Oraon and Somra Oraon transferred the property in the year 1948 by an oral sale. All these facts were pleaded and contested in the suit as also in the title appeal and again in the second appeal. Now, at this stage, exercising jurisdiction under article 226 of the Constitution of India, this Court cannot sit as an appellate authority of the second appellate Court or of the first appellate Court and therefore, such arguments cannot be allowed to be raised at this stage. Finally, this Court is of the opinion that a right which was refused right upto the second appellate Court, namely the High Court cannot be allowed to be obtained through a Writ Court and therefore, to that extent this writ application amounts to an abuse of the processes of the Court. Apart from the aforesaid, this Court draws adverse inference against the petitioner because of the false statement that has been made in paragraph 7 of the writ application to the extent that it was the petitioner who had filed Title Suit No. 147 of 1990. Apart from the aforesaid, this Court draws adverse inference against the petitioner because of the false statement that has been made in paragraph 7 of the writ application to the extent that it was the petitioner who had filed Title Suit No. 147 of 1990. The reason why this Court is compelled to draw adverse inference is because, the petitioners deliberately wanted to confuse the issues and went a step ahead by not even bothering to bring on record the judgments dated 8.12.1994 and 23.1.1996 passed by the VIIIth Additional Judicial Commissioner, Ranchi and by the High Court in S.A. No. 15 of 1995 (R). Had it not been for the counter-affidavit of the respondent No. 6, it would have been a difficult task for this Court to determine the issues involved in this writ application. For all the foregoing reasons, this Court holds that this writ petition is not only vexatious but is also totally devoid of merits. It is accordingly, dismissed. As a consequence of this order, if any delivery of possession was given to the petitioner pursuant to the order dated 24.4.1995 passed in the S.A.R. Appeal, the same obviously would now stand mutilated on account of the judgment dated 8.12.1994 passed by the VIIIth Additional Judicial Commissioner, Ranchi in Title Appeal No. 71/22-93-94; by the judgment dated 23.1.1996 passed by the High Court in Second Appeal No. 15 of 1995(R); and by the order, dated 30.12.1997 passed by the Commissioner, South Chotanagpur Division, Ranchi in Ranchi Revenue Revision No. 132 of 1995 holding inter alia that the opposite party before the Revisional Court (meaning thereby the petitioner) "has no right to claim the lands sold by his grand father" and therefore, the restoration order passed in his favour by the Additional Collector was unjustified, For the foregoing reasons therefore, the Writ Application is dismissed and the respondent authorities are now directed to give effect to the aforementioned judgments. No order as to costs.