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2003 DIGILAW 918 (JHR)

Jamuna Prasad Pathak v. Deputy Commissioner

2003-07-30

VISHNUDEO NARAYAN

body2003
JUDGMENT Vishnudeo Narayan, J. 1. This appeal has been preferred at the instance of plaintiff-appellants against the impugned judgment and decree dated 6.7.1988 and 18.7.1988 respectively passed in Title Appeal No. 4 of 1987 by Shri Jugal Kishore Prasad, VIth Additional Sessions Judge, Palamau whereby and whereunder the said appeal was dismissed affirming the judgment and decree passed in Title Suit No. 25 of 1986 by the 1st Additional Munsif, Daltonganj. 2. The plaintiff-appellants had filed Title Suit No. 25 of 1986 for declaration that the defendant-respondents have no right to demolish any portion of the construction existing on plot No. 82 of khata No. 17 as well as on plot Nos. 83, 84 and 85 of khata No. 35 of village Badaulla and the defendant- respondents have also no right to construct the road over the aforesaid plots besides restraining them by issuance of permanent injunction from demolishing the said house and from constructing road over the same. 3. The case of the plaintiff-appellants, in brief, is that plot No. 32 appertaining to khata No. 17 having an area of 25 decimals stands recorded in the Survey Record of Rights as "Bakast Lagan Panewala" and the said khata No. 17 is under khewat No. 10 standing in the name of Ranglal Pathak, the father of plaintiff-appellant No. 1. 3. The case of the plaintiff-appellants, in brief, is that plot No. 32 appertaining to khata No. 17 having an area of 25 decimals stands recorded in the Survey Record of Rights as "Bakast Lagan Panewala" and the said khata No. 17 is under khewat No. 10 standing in the name of Ranglal Pathak, the father of plaintiff-appellant No. 1. It is alleged that plot No. 83 having an area of 6 decimals, plot No. 84 having an area of 94 decimals and plot No. 85 having an area of 26 decimals appertain to khata No. 35 and the said khata is "Gairmazarua Malik, Samilat Malik" and it is under khewat No. 15 and there were several landlords under the said khewat including Ranglal Pathak aforesaid who had 10 anna share in the land under khata No. 35 and there was a partition between co- sharer landlords just after the cadastral survey and Rangalal Pathak aforesaid got a separate Thakhta of his 10 anna share who was in actual khas cultivating possession over the lands of khata No. 35 allotted to him in the said partition and at the time of vesting of the estate the plaintiff-appellants No. 1 filed the return under the provisions of the bihar Land Reforms Act (hereinafter referred to as the Act) as his father Ranglal pathak had died in the year 1935 of 1936 showing the lands of khata No. 35 as his Bakast land and finding the plaintiff-appellant No. 1 in Khas possession of the lands of khata Nos. 17 and 35 aforesaid, fair rent was fixed in the case bearing No. A/R 63 of 62-63 and the fair rent was fixed in the name of plaintiff-appellant No. 1 and since then he is paying rent in respect thereof. Schedule "A" of the plaint contains the details of plot No. 82 of khata No. 17 and plot Nos. 83 and 84 of khata No. 35. It is further alleged that the co-sharer landlords of khata No. 35 under khewat No. 15, namely, Jagtanand Pathak and Gokulanand Pathak, both sons of Thakur Prasad Pathak having one anna and six pai share therein sold their six pai share of village Badaulia vide registered sale deed dated 7.7.17 (Ext. 2/A) in favour of Gangadhar Mishir in respect of several plots of khata No. 35 including 3-1/2 decimals of land of plot No. 83. 2/A) in favour of Gangadhar Mishir in respect of several plots of khata No. 35 including 3-1/2 decimals of land of plot No. 83. The said Gangadhar Mishir died issueless and his nephew Ramchandra Mishir son of Pandit Deodut Mishir executed a sale deed dated 26.3.1957 (Ext. 2) in respect thereof showing plaintiff-appellant No. 1 as their proprietor and the remaining half share remained in the possession of plaintiff-appellant No. 2. Kameshwar Mishir fully detailed in Schedule "B" of the plaint. Plaintiff-appellant No. 1 settled several plots including plot No. 84 having an area of 60 decimals fully described in Schedule "C" in favour of plaintiff-appellant No. 3 Shyama Devi on 30th Jeth 1351 FS and she was mutated in respect thereof in the Sherista of the C.O., Hussainabad on the basis of the return filed by plaintiff-appellant No. 1 and she is in possession over the same. Plaintiff-appellant No. 4, Fui Kuer Devi being a landless lady constructed her house over an area of 3 decimals of land of plot Nos. 82 and 83 as shown in Schedule "D" and she is residing in the said house and she was granted parcha in her favour in respect thereof under the Bihar Privileged Persons Homestead Tenancy Act, 1947. It is alleged that the State Government has not acquired the suit lands for any purpose under the provisions of the L.A. Act but defendant- respondents No. 3 Executive Engineer in conspiracy with defendant-respondent No. 4 Ajit Singh, the contractor bringing the defendant-respondent No. 2 in their confidence is bent upon to construct a road running from the village Akhauri Khap to Badaulia Nagar, through the plot Nos. 82, 83 and 84 aforesaid which are the raiyati lands of the plaintiff-appellants after demolishing the residential houses of the plaintiff-appellants which resulted in a proceeding under Section 144 of the Code of Criminal Procedure on the basis of the report dated 3.2.1984 of the C.O., Hussainabad, The C.O., Hussainabad reported to the Sub-Divisional Magistrate, Sadar, Daltonganj on 22.2.1984 that the land of plot No. 85 is Gairmazama Malik land upon which the then landlord constructed Aahra for irrigating their lands and there are houses over plot Nos. 83 and 84 of the plaintiff-appellants and the proceeding under Section 144 of the Code of Criminal Procedure was decided in favour of the plaintiff-appellants and against the defendant-respondents and there was again a proceeding under Section 144 of the Code of Criminal Procedure but that proceeding did lapse. The plaintiff- appellants have absolute ownership and title and possession over the suit land and defendant-respondents have no right to construct the road over the aforesaid plots. 4. The case of the defendant-respondent Nos. 1 to 3, inter alia, is that the plaintiff-appellants have no right title and possession over the land of fchata Nos. 17 and 35 especially over which the village road is to be constructed and the house of plaintiff-appellant No. 3 over plot No. 82 is not being affected by the construction of the village road. It is alleged that the proposed village approach road running from Akhauri Khap to Badaulia is to be constructed on government land of plot Nos. 83, 84, 85 and 126 which are all Gairmozarua land and, therefore, there is no need of any acquisition of the said land and there is also no house of plot No. 85 aforesaid. 5. In view of the pleading of the parties the learned trial Court framed the following issues : (i) Is the suit as framed maintainable ? (ii) Have the plaintiffs any valid cause of action for the suit ? (iii) Are the suit plots Raiyati holdings of the plaintiffs over which their residential houses stand ? (iv) Are the plaintiffs entitled for permanent injunction ? (v) To what relief or reliefs the plaintiffs are entitled ? 6. In view of the evidence oral and documentary on the record and deciding issue Nos. 3 and 4, the learned Additional Munsif came to the finding that the proposed road does not cross through plot No. 82 and it crosses through plot Nos. 83, 84 and 85 and plot No. 84 is the Aanra and plot No. 85 is the ridge of the said Aahra and, therefore, plot No. 83 and 84 are not the raiyati holdings of the plaintiff-appellants and thereby they have no right, title and Interest over the same and plaintiff-appellants do not claim plot No. 85. In view of the finding aforesaid the suit was partly decreed and temporary injunction Issued against the respondents in respect of plot Nos. 83. In view of the finding aforesaid the suit was partly decreed and temporary injunction Issued against the respondents in respect of plot Nos. 83. 84 and 85 was vacated. 7. Aggrieved by the said Judgment and decree of the trial Court the plaintiff-appellants preferred Title Appeal No. 4 of 1987. The lower appellate court after reap-preciation of the evidence affirmed the judgment and decree of the trial Court and dismissed the appeal. Hence this Second Appeal has been filed by the plaintiff-appellants. 8. This Court admitted the appeal for hearing on the following substantial issues : (i) Whether the courts below have committed an error of record as well as error of law in ignoring Exts. 5 to 5-B, the M-Forms, submitted before the Court disclosing the raiyati interest of the appellants ? (ii) If the above question is answered in the affirmative, whether the appellants are not entitled for declaration of title in respect of 3 decimals of land out of plot No. 83 and 3-1/2 decimals of land out of plot No. 84 ? 9. Assailing the impugned Judgment it has been submitted by Mr. Pratyush Kumar, learned cousnel for the plaintiff-appellants that the learned appellate Court below has committed a manifest error ona substantial question of law by holding that the suit lands are Goirmozarua Malik land despite Ext. 5 to 5-B whereby fair rent was fixed in respect of the suit land in favour of the plaintiff-appellants under Section 6 of the said Act as the suit land was in khas possession of the appellants on the day of the vesting of the estate and they were entitled to retian possession thereof and hold them as raiyat under the State having occupancy rights in respect of such land subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner and Section 6 of the said Act excludes the vesting of such land which are in khas possession of the proprietor. Relying upon the ratio of case of Suraj Ahir v. Prithvinath Singh and Ors., AIR 1963 SC 454 , it has been submitted that Section 6 of the Act provides, inter alia, that on and from the date of vesting all lands used for agricultural purposes which were in khas possession of a proprietor or tenure holder on the date of vesting shall be deemed to be settled by the State with such proprietor or tenure holder, as the case may be, and such proprietor or tenure holder shall be entitled to retain possession thereof and hold them as raiyat under the State having occuapncy rights in respect of such lands subject to the payment of such fair and equitble rent as may be determiend by the Collector. It has also been submitted that plot Nos. 83 and 84 stands recorded as Gairmazarua Malik land in the Survey Record of Rights and the plaintiff-appellants were in khas possession of the said land and as per operation of the law simultaneously with the vesting of the estate the plaintiff-appellants became the raiyat of the said land under the State having occupancy rights in respect thereof and Ext. 5 series are the order of the fair rent fixation of the suit land after the vesting of the estate and the learned appellate court below did not at all consider Ext. 5 series and has gravely erred in dismissing the appeal of the appellants and the plaintiff-appellants being the roiyats of the suit land, i.e., in respect of plot Nos. 83 and 84 are entitled for the declaration of their title in respect thereof. Lastly it has been contended that the finding of both the courts below is not only perverse but against the tenor of Section 6 of the said Act and the impugned judgment is, therefore, unsustainable. 10. It has been submitted by the learned counsel for the defendant- respondents that the suit land stands recorded as Gairmozarua Malik land in the cadastral survey and there is no evidence on the record to show that these plots were in khas possession of the appellants on the day of the vesting of the estate and in this view of the matter both the courts below have right-ly held that the plaintiff-appellants cannot be treated as raiyat thereof. 11. 11. It is pertinent to mention at the very outset that plot No. 82 stands recorded In the Survey Record of Rights as Bakast land and the proposed road does not even touch or cross, from plot No. 82 aforesaid and the hosue of plaintiff-appellants. No. 4 Ful Kuer Devi standing on Plot No. 84 is also not being affected by the proposed road and the defendant-respondents have granted parcha in respect thereof in her favour under the provisions of the Bihar Privileged Persons Homestead Tenancy Act, 1947. Therefore, the finding regarding declaration of right, title and interest of the plaintiff-appellants in respect thereof is no longer in dispute now in view of the averments made in paragraph Nos. 8 and 9 of the written statement. Plot No. 85 is Gair-mazarua Malik land as per the survey entry in the Survey Record of Rights and there is nothing on the record to show that the plaintiff-appellants shall be deemed to be the raiyats in respect thereof after the vesting of the estate. In view of the substantial question of law involved we are only concerned with 3 decimals of land out of plot No. 83 and 3-1/2 decimals of land out of plot No. 84 as they are being affected by the cosntruction of the proposed road. Aforesaid two plots are Gairmazarua Malik land as per the Survey Record of Rights. Plaintiff No. 1 Jamuna Prasad Pathak, admittedly was a proprietor of the land of khata No. 35 to which the aforesaid two plots appertain to and they had claimed the said plots in their khas possession at the time of the vesting of the estate and as per the operation of Section 6 of the Bihar Land Reforms Act, the suit land will be deemed to have been settled with the plaintiff-appellants and he became the exclusive owner of the suit land. It is worthwhile to mention here that vesting of the estate and the intermediary becoming the raiyat having the occupancy rights of the land in his khas possession is the simultaneous act as per the provision of Section 6 of the said Act. It is worthwhile to mention here that vesting of the estate and the intermediary becoming the raiyat having the occupancy rights of the land in his khas possession is the simultaneous act as per the provision of Section 6 of the said Act. Section 6 of the said Act in so far as it is material for this case reads thus : "......6(1) On and from the date of vesting of lands used for agricultural or horticultural purposes which were in "khas" possession of an intermediary on the date of such vesting, including- (a) (i) proprietors private land let out under a lease for a term of years or under a lease, from year to year, referred to in Section 116 of the Bihar Tenancy Act. .1885 (8 of 1885); (ii) landlords privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral for a period of one year or less; referred to in Section 43 of the Chota Nagpur Tenancy Act, 1908 (Ben. Act 6 of 1908); (b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock; and (c) lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover "khas" possession thereof : shall subject to the provisions of Sections 7-A and 7-B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner." Section 6 of the said Act contemplates that the land will be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and held it as a raiyat under the State having occupancy rights in respect of such land subject to payment of fair and equitable rent. The plaintiff-appellants as required under Rule 7-B of Bihar Land Reforms Rules, 1951 filed an application before the Collector in Form-K furnishing therein the statement of descriptions of all such lands lying with his jurisdiction as may be deemed to have been settled by the State with such intermediaries for determination of fair and equitable rent or ground rent in respect thereof. The Collector after general notice in the matter and holding enquiry prepared the rent roll regarding determination of the fair rent of the lands which the intermediary is deemed to have been a ratyat having occupancy rights and that preparation of rent roll is in Form-M annexed with the Rules aforesaid. Here in this case the plaintiff-appellants filed his statement in Form K and after proper enquiry rent roll was prepared in Form M which are on record as Ext. 5 series. Form M regarding preparation of rent roll is a document of unimpeachable chapter which evidences the fact that the intermediary is the raiyat having occupancy rights in respect of the land which finds place in Form M. Both the courts below did not properly construe the effect of Ext. 5 series regarding the matter in controversy in this case whereby a miscarriage of justice has come to exist. Ext, 5 stands in the name of plaintiff-appellants Jamuna Prasad Pathak in respect of the lands which were in his khas possession on the day of the vesting of the estate and plot No. 83 having an area of 6 decimals stands mentioned therein. Ext. 5-B is in favour of Shardut Mishir, the father of plaintiff- appellant No. 2, Kameshwar Mishir in respect of the lands in his khas possession on the date of the vesting as it incorporates therein regarding plot No. 84 to the extent of 3-1/2 decimals. In view of Exts, 5 and 5-B plaintiff-appellant Nos. 1 and 2 are the raiyats in respect of plot Nos. 83 and 84 appertaining to khata No. 35 having occupancy rights therein. In view of Ext. 5 series referred to above the land of plot Nos. 83 and 84 so far they are covered by Form M i.e. Exts. 5 and 5-B can never be termed as Gairmazarua Malik land. The land of plot Nos. 83 and 84 aforesaid mentioned in Ext. 5 and 5-B shall be deemed to be the raiyati land of plaintiff-appellant Nos. 5 series referred to above the land of plot Nos. 83 and 84 so far they are covered by Form M i.e. Exts. 5 and 5-B can never be termed as Gairmazarua Malik land. The land of plot Nos. 83 and 84 aforesaid mentioned in Ext. 5 and 5-B shall be deemed to be the raiyati land of plaintiff-appellant Nos. 1 and 2 having occupancy rights therein in view of Section 6 of the said Act. Therefore, the defendant-respondents have no right to construct the proposed road over the land of plot Nos. 83 and 84 without acquiring those lands in accordance with law. Viewed thus the impugned judgment and decree of both the courts below in respect of the aforesaid land to the extent covered under Form-M cannot be sustained. 12. This appeal is hereby allowed. The impugned judgment of both the courts below in respect of the aforesaid land of plot Nos. 83 and 84 appertaining to khata No. 35 are hereby set aside and the suit of the plaintiff-appellants in respect thereof is hereby decreed but without costs.