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2003 DIGILAW 1222 (JHR)

Mangru Munda v. Matin Kuar

2003-09-30

P.K.BALASUBRAMANYAN, R.K.MERATHIA

body2003
JUDGMENT P.K. Balasubramanyan, C.J. 1. An extent of 17.88 acres of Bhuinhari land in R.S. Khewat No. 6/1 to 6/8 of village Baradih in the District of Ranchi recorded in the names of different Bhuinhars was sold in auction on 20.12.1937 in Certificate Case No. 144/1936-37 instituted on account of non-payment of rent and cess. The land was purchased by the Manager of Ward and encumbered estate Lachcharagarh. The auction purchaser took delivery of the property on 20.12.1937. Subsequently, with the permission of the Deputy Commissioner, the land was settled in favour of one Harkhman Singh. That was by a hukumnana dated 1.2.1940 and the annual rent payable was Rs. 24/- and the cess. Harkhman Singh, in his turn, sold the land to Matin Kaur 3.4.1945. It is claimed that Matin Kaur got the land mutated in her name and was paying rent annually and continued to be in possession. 2. The father of the appellant herein, (The appellant was respondent No. 5 in the writ petition), Dhore Munda, filed Title Suit No. 247 of 1947 on the file of the Munsif Court at Ranchi for a declaration that the sale certificate was void, fraudulent and without jurisdiction and prayed for recovery of possession of the property. The auction purchaser was impleaded as a defendant. That suit was dismissed and it appears that it was dismissed for default. An attempt was made to get the dismissal set aside by invoking Order IX, Rule 9 of the Code of Civil Procedure. But that application was also dismissed. An appeal under Order 43, Rule 1 of the Code of Civil Procedure was filed as Misc. Appeal No. 15 of 1949 in an attempt to get the suit restored, but that Miscellaneous Appeal was also dismissed for default on 8.2.1950. Thus, the attempts made by the father of the appellant to get back the property by way of suit failed. 3. Thereafter, the uncle of the appellant initiated a proceeding for restoration of possession under Tana Bhagat Raiyats Agricultural Land Restoration Act, 1947. On 12.9.1970, the application was rejected on the ground that such an application for restoration was not maintainable and the authority before whom it was filed had no jurisdiction to entertain such an application. That proceeding also thus came to an end. 4. On 12.9.1970, the application was rejected on the ground that such an application for restoration was not maintainable and the authority before whom it was filed had no jurisdiction to entertain such an application. That proceeding also thus came to an end. 4. Thereafter, in the year 1976, the appellant filed an application for restoration of the land by invoking Section 71A of the Chotanagpur Tenancy Act, (hereinafter referred to as the Act). On 1.2.1977, the authority concerned rejected the application holding that the application was not maintainable. The said dismissal also stood. Thereafter in the year 1982, the appellant again filed a review application, not against Matin Kuar who had purchased the property from Harkhman Singh, but only against her two sons. The two sons of Matin Kuar, inter alia, contended that the person to be impleaded was their mother, the purchaser from Harkhman Singh and without impleading her, the proceeding cannot go on. The authority concerned combined the two applications and took it up as Case No. 2/82-83 and as one under Section 48 of the Act, without considering the plea of the respondents before him that their mother, the purchaser, was the party, who was to be impleaded, the authority passed an order on 12.6.1983, ordering restoration of possession. It may be noted that this was done without impleading Harkhman Singh also in whose favour the land was settled after the predecessor of the appellant was dispossessed. An appeal was filed by the sons of Matin Kuar challenging the order of the original authority directing restoration. That appeal No. 16/36 of 1983-84 was allowed by the Additional Collector, the appellate authority, and the original authoritys order for restoration was set aside. The appellant filed a revision, Revenue Revision No. 67 of 1984, before the Commissioner challenging the decision of the appellate authority. By order dated 14.7.1987, that revision was allowed by the Commissioner, who set aside the order of the appellate authority and restored the order of the original authority directing restoration of possession. In revision also, it must be noted that Matin Kuar was not made a party. 5. By order dated 14.7.1987, that revision was allowed by the Commissioner, who set aside the order of the appellate authority and restored the order of the original authority directing restoration of possession. In revision also, it must be noted that Matin Kuar was not made a party. 5. Feeling aggrieved by the orders of the original authority dated 2.6.1983 (marked Annexure-13), and the order in revision dated 14.7.1987 (marked Annexure-15) Matin Kuar along with her two sons, who alone were the parties before the authorities, filed the writ petition, CWJC No. 1938 of 1987 (R) praying for the quashing of those orders, inter alia, on the grounds that the application for restoration was not maintainable; that without Matin Kuar being arrayed as a party, no such restoration could have been ordered; that the application filed by the appellant was not maintainable in view of the dismissal of the Title Suit, filed by his father and the application made by his uncles earlier, which had already been dismissed; that the present proceeding was barred by res judicata; that Section 46 of the Chotanagpur Tenancy Act or Section 71-A of that Act could not be invoked for ordering restoration; that Section 208 of the Act had no application to the case on hand; that in any event, the predecessor of the writ petitioners who had got into possession had prescribed for a title by adverse possession; that the application was barred by limitation and that the application filed by the appellant was liable to be rejected. On behalf of the appellant it was pleaded that by virtue of the amendment brought about to Sections 208 and 71-A of the Act in the year 1986, the application became maintainable and the appellant was entitled to restoration of possession on the facts and in the circumstances of the case. The learned Single Judge held that the original sale was valid and not hit by the Act and particularly by the provisions relied on and once the sale was held valid, there was no question of ordering restoration of possession to the appellant. Though he found that in view of the above conclusions, the question of adverse possession raised by the writ petitioners need not be decided, the learned Single Judge proceeded to consider that question as well and came to the conclusion that the writ petitioners had prescribed for a title to the property. Though he found that in view of the above conclusions, the question of adverse possession raised by the writ petitioners need not be decided, the learned Single Judge proceeded to consider that question as well and came to the conclusion that the writ petitioners had prescribed for a title to the property. Thus, the learned Single Judge set aside the orders of the original authority and the revisional authority ordering restoration of possession. Feeling aggrieved by the dismissal of the proceedings initiated by him for restoration of possession, the appellant has filed this appeal. 6. At the time the land was sold in auction on 20.12.1937, the sale was not hit by the relevant provisions of the Chotanagpur Tenancy Act. Only with effect from 12.6.1938, a restriction on transfer of Bhuinhari tenure was brought within the purview of Section 48 of the Act. Similarly, proviso fourthly insisting on sale in favour of an aboriginal or a member of the Scheduled Tribe also came into force only with effect from 12.6.1938, as introduced by Act 2 of 1938. Thus, as on the date of sale on 20.12.1937, the sale in favour of the Manager of Ward and Encumbered Estate Lachragarh was not hit by either Section 48 or Section 208 of the Chotanagpur Tenancy Act. But it is seen that possession was taken by the auction purchaser only on 12.9.1938. In other words, the possession was taken after Act 2 of 1938 amending Sections 48 and 208 of the Chotangapur Tenancy Act came into force. Though it is contended on behalf of the contesting respondents that since the sale was prior to the coming into force of Act 2 of 1938, the application for restoration on the basis of violation of Sections 48 and 208 of the Act is not maintainable, cannot be accepted in the light of the decision of the Supreme Court in Pendey Oraon v. Ram Chander Sahu and Ors., 1992 SC 195. A Full Bench of the Patna High Court had held that the expression transfer as occurring in Section 71-A of the Chotanagpur Tenancy Act meant, transfer as defined in the Transfer of Property Act. A Full Bench of the Patna High Court had held that the expression transfer as occurring in Section 71-A of the Chotanagpur Tenancy Act meant, transfer as defined in the Transfer of Property Act. The Supreme Court, reversing that decision of the Full Bench, held that the expression "transfer" was comprehensive enough to include a transfer of possession and when possession had passed after the relevant date, the section would have application and the land could be restored by exercising jurisdiction under Section 71-A of the Act. The Deputy Commissioner had power to restore possession to a member of a Schedule Tribe over any land unlawfully transferred. 7. Though the decision of the learned Single Judge was rendered on 11.3.1992, the decision of the Supreme Court above referred to, rendered on 18.7.1991 was not brought to the notice of the learned Single Judge. The learned Single Judge, therefore, only considered the question whether the sale held on 20.12.1937 was hit by Section 48 read with Sections 48-A and 208 of the Act as amended by Act 2 of 1938. The learned Single Judge has not considered the effect of the transfer of possession subsequent to the corning into force of the Amendment Act and the consequences flowing there-from. In the light of the decision of the Supreme Court referred to above, it must held that if other wise maintainable, the application for restoration filed by the appellant could have been allowed by exercising jurisdiction under Section 71-A of the Act, since possession passed after the Bhuinhari tenure was brought within the purview of the Act and a restriction was imposed on the raiyat to purchase land by a Scheduled Tribe or an aboriginal. Hence, the application cannot be dismissed on that ground. 8. On the question of adverse possession, we think that this aspect requires to be re-considered. We are not satisfied that the reasoning and conclusion of the learned Single Judge on this aspect can be sustained on the materials now available. That apart, what is the consequence of the purchaser being in adverse possession in terms of Section 71 -A of the Act with particular reference to the third proviso thereto, has also to be considered. We are not satisfied that the reasoning and conclusion of the learned Single Judge on this aspect can be sustained on the materials now available. That apart, what is the consequence of the purchaser being in adverse possession in terms of Section 71 -A of the Act with particular reference to the third proviso thereto, has also to be considered. The argument on behalf of the appellant that the third proviso at best only enables the person who establishes adverse possession to claim compensation for improvements effected by him and a finding on adverse possession cannot lead to the rejection of a proceeding for restoration has force. This aspect has also to be dealt with. Similarly, the argument on behalf of the contesting respondents before us that the application is barred in view of the prior proceedings and that the power under Section 71-A of the Act could not be exercised at this juncture also requires a proper consideration. In other words, we feel that the entire claim of the appellant for restoration of possession requires re-consideration. We may notice that the proceeding was treated as one under Section 48 of the Act. Whether it could be so treated has also to be considered. It has also to be considered whether even if a proceeding under Section 48 of the Act is not maintainable, restoration could not be ordered in exercise of power under Section 71 -A of the Act. On the whole, we think that the matter requires re-consideration. But we think that it will be expedient if it is re-considered by the appellate authority with refeience to all the facts available in the case. If any additional facts are required, the appellate authority will call for such facts or direct the parties to produce the relevant materials before him in that behalf. Since we consider that the whole matter requires reconsideration in the light of the decision of the Supreme Court referred to above and in view of the aspects pointed out, we refrain from further discussing the various aspects urged before us. We also think it necessary to direct the appellant to implead Matin Kuar who figured as writ petitioner No. 1 in the proceedings before the authority. We also think it necessary to direct the appellant to implead Matin Kuar who figured as writ petitioner No. 1 in the proceedings before the authority. The appellant will make an application for impleading Matin Kuar (who is also before us) in the proceedings within two months of the records being received before the appellate authority. The appellate authority will allow that application and then proceed further with the case. The appellate authority will give Martin Kuar, on being impleaded, an opportunity to put forward her case and to adduce whatever evidence she may want to adduce in support of her case. 9. For the reasons stated above, we allow this appeal and set aside the judgment of the learned Single Judge. We allow the writ petition filed by the writ petitioners to the extent of quashing the orders of all the authorities and remit the proceedings, initiated at the instance of the appellant herein to the Court of the Assistant Commissioner, Ranchi, for a fresh trial and a fresh decision in accordance with law and in the light of the observations contained above. To expedite the proceedings, we direct the parties to appear before the Assistant Commissioner on 26.11.2003, The case will stand posted before him that day for further orders. Send down the records urgently to the Court of the Additional Collector.