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2005 DIGILAW 134 (JHR)

Narayani Mukherjee v. Khusru Khan

2005-02-14

HARI SHANKAR PRASAD

body2005
JUDGMENT Hari Shankar Prasad, J. - This appeal It the instance of the appellant is directed against the judgment dated 15.7.1995 and award dated 29.7.1995 passed in L.A. Ref. Case No. 7 of 1993 whereby and where-Under the learned Land Acquisition Judge, Dhanbad allowed the reference. 2. Facts briefly stated are that State of Bihar through Collector acquired 2.85 acres of land appertaining to plot nos. 1510 and 1912 comprised in survey khata no. 1 of village Pargha Thana at Baliapur District Dhanbad by a declaration no. 192/ 88-1511 dated 16.6.1988 published in the District Gazette dated 16.6.1988 under Section 4 of the Land Acquisition Act and award vide award no. 130 for a sum of Rs. 75,486.66 paise was prepared in the name of Smt. Narayani Mukherjee who is opposite party in the learned court below and the entire money was paid to her. After payment of the award, the plaintiff/petitioner who claimed part of the land made an objection before the Land Acquisition Authority challenging the validity of the award for whole of the acquired land in the name of opposite party Narayani Mukherjee and claiming his interest on 1.33 acres of acquired land on the basis of purchase from its original owner and sought reference whereupon reference under section 30 of the Land Acquisition Act was made. 3. The case of the applicant-objector-respondent is that the lands under khata no. 1 of village Pargha were originally recorded as 'Gair Awad Malick" in the name of Rani Hemkumari who settled 1.71 1/2 acres of the same including part of the reference plots with one Badri Narayan Singh by registered Patta in the Bangia year 1343 corresponding to 1936 according to English Calendar on fixed annual rent besides cess and after accepting salami of Rs. 75/- and put him in possession over the lands. The ex-tenure holder recognized the settlee Badri Narayan Singh as her raiyat who possessed the lands by reclaiming the same and paying rents to the tenure holder. While he was in peaceful possession of the same, he transferred the same land to the present applicant-objector by virtue of registered deed no. 1277 dated 30.1.1970 and put him in possession over the same. While he was in peaceful possession of the same, he transferred the same land to the present applicant-objector by virtue of registered deed no. 1277 dated 30.1.1970 and put him in possession over the same. Further case of the applicant-objector is that applicant-objector exercised diverse acts of possession over the lands and got his name recorded in the record of State of Bihar for the purpose of payment of rent and paid rents to the State of Bihar all along and, therefore, applicant-objector claims himself to be the original owner of the lands and he has acquired indefeasible title by possessing the same. 4. Opposite party-appellant filed written statement and contested the reference. Her case is that the alleged registered patta of the year 1936 said to be executed by the tenure holder in favour of Badri Narain Singh in respect of the portion of the plots under reference was never acted upon nor the settlee came in possession over the lands on the basis of such settlement and as such, the subsequent transfer by the settlee in favour of the applicant by virtue of registered sale deed dated 30.1.1970 was not operative document and this was also not acted upon. The socalled Badri Narain Singh omitted to execute any 'Kabuliat in favour of the tenure holder in pursuance of the alleged patta executed in his favour and thus settlee never came in possession over the land on the basis of the registered patta and the claim of the present applicant-respondent on the basis of registered sale deed is not proper and misconceived and the alleged sale deed in favour of the applicant is just a paper transaction. The tenure holder continued to hold lands in her khas possession and submitted 'M" form under the provisions of B.L.R. Act,1950 before the Circle Officer, Baliapur in the year 1962 who accordingly started rent assessment case no 138 of 1962-63 and after holding necessary inquiry, assessed and fixed rents of the lands in favour of the tenure holder. The tenure holder paid the rent to the State of Bihar in respect of the lands and obtained Government receipts in token of payment. The tenure holder paid the rent to the State of Bihar in respect of the lands and obtained Government receipts in token of payment. It is said that during the period tenure holder was in possession of the land, she transferred the total area of the plots in question to her husband Narain Mukherjee, who subsequently died, by virtue of registered sale deed bearing no. 23082 dated 19.10.67 for a valuable consideration and delivered possession of the lands following execution of the documents. Her husband possessed the lands by cultivating paddy crops for more than the statutory period to the knowledge of all. The husband of Narayani Mukherjee got his name mutated in respect of the lands in the records of the State of Bihar and paid rents to the State and got proper receipts against payment and when husband of the O.P.appellant died, then she inherited the lands left by her husband who exercised possession over the same until the State of Bihar acquired the same under the provisions of the Land Acquisition Act. 5. In the facts and circumstances of the case, the opposite party-appellant has justified the award in her favour in respect of the acquired land of payment of award money to her by the Land• Acquisition authority. 6. On the basis .of the claims of the parties, the learned court below considered the rival claims of the parties and ultimately came to a finding by examining oral and documentary evidence that applicant-objector acquired right, title and interest over the property and that should be paid. The amount of award to the extent of 1.33 acres of land was allowed by the learned court below and directed the original claimant to pay to this claimant with 9% interest thereon. 7. The judgment of the learned court below has been assailed on the ground that appellant-defendant was coming in possession at the time of acquisition of the land and further that purchase was made by her husband by registered sale deed and they had exercised possession for more than the required statutory period and, therefore, they acquired right, title and interest over the land in question by adverse possession also. He further submitted that registered patta which was executed by Rani Hemkumari in favour of Badri Narayan Singh in the year 1943 was never acted upon and possession was retained by the tenure holder Rani Hemkumari and, therefore, Badri Narayan Singh, the registered Patta holder did not acquire any right, title and interest in the land in question and subsequently, since he had no title, he could not have given better title to his vendee. Anuther point of attack was that since appellant-defendant had exercised possession prior to that of her husband, but even mutation was done in favour of her husband and she even paid rent and was granted rent receipts. 8. From the facts stated above, following issues arise for determination in this appeal. 1. Whether the appeal is maintainable or not? 2. Whether the appellant got right, title and interest in the property by adverse possession or not? 3. Whether registered patta granted in favour of Badri Narayan Singh and subsequent sale by Badri Narayan Singh to the Objector-respondent did create any right, title and interest in the objector? 9. Issue Nos. 2 and 3:- These issues are taken together for the sake of convenience and they are interrelated to each other. The land in question was acquire by the State of Bihar for some purpose and award was prepared in respect of the land acquired and the entire amount of award was paid to appellant-defendant. Subsequently thereto the objector-respondent filed a petition stating therein that he is the original owner of the land to the extent of 1.33 acres of land and that land has been acquired land, 1.33 acres of land belongs to him and he should be paid proportionate amount of compensation and thereafter on the basis of his petition on protest, the Land Acquisition Officer made a reference of his claim under section 30 of the Land Acquisition Act and the Land Acquisition Judge after recording oral and documentary evidence, decided the matter and allowed the objection of the objector-respondent and directed the appellant-defendant to pay proportionate amount of compensation with 9% interest. Thereafter this appellant has filed this appeal. 10. It is an admitted fact that 2.85 acres of land appertaining to plot no. 1510 and 1912 comprised in survey khata no. 1 of village Pargha Thana at Baliapur District Dhanbad was acquired and a sum of Rs. Thereafter this appellant has filed this appeal. 10. It is an admitted fact that 2.85 acres of land appertaining to plot no. 1510 and 1912 comprised in survey khata no. 1 of village Pargha Thana at Baliapur District Dhanbad was acquired and a sum of Rs. 75,486.66 paise was paid to the appellant appellant-defendant by way of award. It is also an admitted fact that the land under khata no. of village Pargha were originally recorded as "Gair Awad Mallick' in the name of Rani Hemkumari and she settled 1.71 acres of land including part of the reference plots with one Badri Narayan Singh by registered patta in the Bangla year 1343 corresponding to 1936 according to English Calendar on fixed annual rent besides cess and after accepting salami of Rs. 75/- put him in possession over the lands. It is said that ex-tenure holder recognized the settlee Badri Narayan Singh as her raiyat who possessed the lands by reclaiming the same and paying rents to the tenure holder. This Badri Narayan Singh transferred the land by registered deed of sale in 1970 and put him in possession over the same. On the other hand, the socalled registered patta said to have been executed in the year 1936 by Rani Hemkumari in favour of Badri Narayan Singh was not acted upon, nor the settlee came in possession on the basis of such settlement and, therefore, all subsequent transfer by the settlee in the year 1970 was not an operative document and this was never acted upon. The so-called Badri Narayan Singh omitted to execute any "Kabuliaf' in favour of the tenure holder in pursuance of the alleged Patta executed in his favour and, therefore, settlee never came in possession over the land on the basis of the registered patta and, therefore, sale of the land through registered deed in favour of the applicant-objector-respondent is a paper transaction as it is obvious that tenure holder continued to hold lands in her khas possession and submitted 'M' form under the provisions of B.L.R. Act, 1950 before the Circle Officer, Baliapur in the year 1962 who accordingly started rent assessment case no. 138 of 1962-63 and after holding necessary inquiry of the land, rent was fixed• in favour of the tenure holder. 138 of 1962-63 and after holding necessary inquiry of the land, rent was fixed• in favour of the tenure holder. The tenure holder paid rent to the State of Bihar in respect of the lands and obtained Government receipts in token of payment and during the period she was in possession of the land, she transferred the total area of the plots in question to the husband of the appellant-defendant and with the death of her husband, the appellant inherited the lands. Her husband had possessed the land and had cultivated paddy crops for more than the statutory period to knowledge of all and he even got his name mutated in serista in respect of the land in the records of State of Bihar and paid rent to the State and got proper receipt against the payment. 10. On the other hand, learned counsel appearing for the plaintiff-respondent submitted that it is an admitted fact that Rani Hemkumari was the landlord and she had every right to settle the land to any raiyat for the purpose of cultivation and to realize rent from such raiyat and according to Section 44 of the C.N.T. Act, every raiyat is entitled to receive land from his landlord and as per list containing details of such land settled, Rani Hemkumari settled the land in favour of Badri Narayan Singh through Ext. 3 and through Ext. 3 she settled the disputed land to Badri Nayayan Singh on 1.6.1936 and from the date of such settlement, Badri Narayan Singh became raiyat under Rani Hemkumari and this status continued as such till he transferred the land to the respondent in the year 1970 by Ext. 2. 11. The learned counsel further pointed out that if claim of the appellant that Rani Hemkumari continued to hold the land in her khas possession, then it was necessary for her to get the deed of settlement cancelled under section 31 of the Specific Relief Act because Rani Hemkumari as well as appellant had full knowledge about the deed of such settlement was not acted upon as the deed of settlement of 1936 was not declared null and void, nor cancelled by any competent court and it remained as such and the raiyati right of Badri Narayan Singh could not be taken out. It is further pointed out that if the land in question remained with the case proprietor, then provisions of C.N.T. Act are to be valid and a raiyati land can only be acquired by the landlord under the following circumstances: 1. If the tenant surrendered land to the landlord under section 72 of the C.N.T. Act. 2. If the tenant has abandoned the holding and the landlord, prior to his entry over the holding gives notice to the Deputy Commissioner for taking the land or holding in its possession. 3. If the tenant fails to pay rent, then the landlord/proprietor will have to file rent suit for realization of rent and in default of payment of rent, holding may be put to auction and there is no other method for evicting tenant from the land. 4. The Proprietor or landlord can only get rent assessed for those lands which vested in the State Government under the provisions of Bihar Land Reforms Act. But if such landlord retains possession of such land, then it can be sold to him under section 6 of the Bihar Land Reforms Act and under Section 6 of the Bihar Land Reforms Act, land means vested in the State Government then only operation of Section 6 come~ into play. 12. On the other hand, the appellant has failed to satisfy condition as laid down in the C.N.T. Act and, therefore, raiyatl land has never reverted to the landlord as alleged by the appellant. It is further provided under section 68 of the C.N.T. Act that tenant cannot be ejected from his tenancy without execution of a decree or order and, therefore, under the specific provisions of law, Badri Narayan Singh was never ejected from his holding and as such, the disputed land never went back to the landlord and it remained as raiyati land of Badri Narayan Singh. Here in the instant case, the disputed land never vested in the State Government as it was a raiyati land and the landlord had no option to get rent fixed in her name. It was further pointed out that from the above position of law, Rani Hemkumari cannot claim disputed land to be in her khas possession. 13. Here in the instant case, the disputed land never vested in the State Government as it was a raiyati land and the landlord had no option to get rent fixed in her name. It was further pointed out that from the above position of law, Rani Hemkumari cannot claim disputed land to be in her khas possession. 13. It was further pointed out that the learned court below has rightly considered the award and came to a finding that award has not been properly made in the name of the appellant as payment of rent does not confer or extinguish title. In this connection, reliance was placed upon JCR 2004 395. 14. On the other hand, learned counsel for the appellant submitted that this is not the case of settlement of land by Rani Hemkumari in favour of Badri Narayan Singh through registered patta and put him in possession over the land, but this is a case that execution of registered patta is a sham transaction and has been executed only on paper and Badri Narayan Singh was never put in possession over the land in question and he never became raiyat of Rani Hemkumari and, therefore, disputed land was retained by Rani Hemkumari in her khas possession and after vesting of the land in the State of Bihar, the rent assessment case no. 138 of 1962-63 was started and after due inquiry by Circle Officer, it was held that Rani Hemkumari is in possession over the land in question and Circle Officer assessed the rent and fixed the rent and she paid the rent to the State of Bihar and got proper rent receipts. It was also pointed out that subsequent transfer by Badri Narayan Singh in the year 1970 is also a sham transaction because prior to execution of sale deed (Ext. It was also pointed out that subsequent transfer by Badri Narayan Singh in the year 1970 is also a sham transaction because prior to execution of sale deed (Ext. 2), Rani Hemkumari had already sold the land to the husband of the appellant for valuable consideration and had put him in possession over the land and the husband of the appellant cultivated the land and got his name mutated in serista of the State Government and paid rent and got rent receipts and after his death, this appellant who was the legally married wife of her husband, inherited the property in 1989 and from 1967 till the date of acquisition of the land by State of Bihar, her husband and thereafter she remained in possession of the land in question and, therefore, her husband and thereafter this appellant was in possession over the land in question for more than the statutory period as required under the provisions of law and, therefore, she acquired the land even though not through the sale deed executed by Rani Hemkumari in favour of her husband, still by remaining in possession for more than the statutory period right from 1963 when the sale deed was executed in favour of the husband of the appellant till the date of acquisition of the land by the State Government and, therefore, by remaining in possession over the land for more than statutory period, she IE has acquired right, title and interest over t the land in question and award was correctly prepared in her name and she got the award. In this connection, learned counsel appearing for the appellant has placed reliance upon on 1995(1) BLJ 7(SC) wherein it has been held that the suit was filed in the year 1993 and the appellant remained in uninterrupted possession as the owner of the land for more than 26 years which right she obtained by execution of sale deed and thereby she got necessary right, title and interest over the land in question. Reliance was also placed upon some other rulings. 15. So far as evidence of witnesses are concerned, both the sides have examined witnesses and from evidence of witnesses so examined, it appears that witnesses have claimed possession of either party over the land in dispute. Reliance was also placed upon some other rulings. 15. So far as evidence of witnesses are concerned, both the sides have examined witnesses and from evidence of witnesses so examined, it appears that witnesses have claimed possession of either party over the land in dispute. But one fact is clear that the appellant's husband right from 1967 till 1989 remained in possession over the land in question and after his death, his wife who is the appellant, remained in possession till the land was acquired by the State Government and further that the husband of the appellant even got his name mutated in serista of the State Government and paid rent and even proper rent receipts were granted to him and as such, they have remained in possession for more than the statutory period nearly for about 26 years. It is clear that the registered patta executed in the year 1936 is a sham transaction because in pursuance of the registered patta, no Kabuliat was executed by Sadri Narayan Singh and further the sale deed of 1970 is also a sham transaction. Hence, in the facts and circumstances of the case, I find that the judgment and decree and award of the learned court below is fit to be set aside. Issue Nos. 2 and 3 are decided in favour of the appellant and against the respondent. 16. Issue No.1-this appeal is maintainable. In the result, this appeal is allowed and the judgment and decree of the learned court below is hereby set aside, but in the circumstances no order as to costs.