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2005 DIGILAW 627 (GAU)

Swapan Mallick v. Purna Laxmi

2005-08-26

BROJENDRA PRASAD KATAKEY

body2005
JUDGMENT B.P. Katakey, J. 1. The Petitioner by the present writ petition has challenged the order dated 25.2.1995 passed by the Restoration Officer, Belonia, South Tripura in Case No. 329/R/94 under Section 187 of the Tripura Land Revenue and Land Reforms Act (hereinafter referred to as T.L.R. and L.R. Act), 1960, directing restoration of the schedule land to the Respondent No. 1 by ejecting the Petitioner from the said land. 2. I have heard Mr. S. Deb, learned Senior Counsel assisted by Mr. S. Choudhury, learned Counsel for the Petitioner and Mr. P. Dutta, learned Counsel appearing on behalf of all the Respondents. 3. Mr. Deb, learned Senior Counsel for the Petitioner has submitted that the Petitioner's father filed a Title Suit being Title Suit No. 31 of 1969 in the Court of the learned Munsiff, Belonia, South Tripura against the husband of the Respondent No. 1 as Defendant praying for a decree declaring that the Plaintiff is the Benamdar in respect of the land involved in the present proceeding, which was decreed on compromise. According to the learned Senior Counsel, by the said decree passed by the learned Civil Court on 23.6.1969 the right, title and interest of the predecessor-in-interest of the present writ Petitioner has been declared and, therefore, the Revenue Court has no power and jurisdiction to pass the order dated 25.2.1995 directing restoration of possession of the land in question in favour of the Respondent No. 1 by ejecting the Petitioner inasmuch as the predecessor-in-interest of the Respondent No. 1 has admitted that the land which was purchased on 21.2.1966 by the predecessor-in-interest of the Petitioner in the name of predecessor-in-interest of the Respondent No. 1. Further submission of the learned senior counsel is that since the predessor-in-interest of the Petitioner has purchased the land on 21.2.1966 i.e., much prior to 1.1.1969, in the name of the predecessor-in-interest of the Respondent No. 1 and since such transaction was declared to be a benami transaction by the Civil Court, the Revenue authority has no power and jurisdiction to restore the possession of the land in favour of the Respondent No. 1 in exercise of the power under Section187(3) of T.L.R. and L.R. Act, 1960, as under the said provision the Revenue authority can direct restoration of possession of the land belonging to the tribal if such land is transferred to a non-tribal on or after 1.1.1969. Mr. Mr. Deb, learned Senior Counsel has further submitted that though the provision of Section 187 was amended by the Sixth and Seventh Amendment, which came into force on 11.2.1969, where by the power has been conferred on the Revenue authority to restore possession of the land to the tribals, if possession of the land is parted with in favour of the non-tribal after 1.1.1969, the said provision is not applicable in the present case in view of the fact that it came into force with effect from 11.2.1996 and the proceeding was initiated much prior to coming into force the said amended provision. In any case, according to the learned Counsel, it is evident from the decree passed by the Civil Court that the Petitioner through the predecessor-in-interest was in possession of the land prior to 1.1.1969 and, therefore, even if the amended provision is applicable, the Petitioner cannot be evicted from the land in question and the possession cannot be restored in favour of the Respondent No. 1 as the said power can be exercised by the Revenue authority if such transfer has been effected or possession has been parted with after 1.1.1969. According to the learned senior counsel, the Respondent No. 1 filed the application under Section 187 before the learned Revenue authority which was decided initially vide order dated 24.4.1986 and against which an appeal was preferred before the learned District Magistrate and Collector, South Tripura, which has been registered as Rev. Case No. 21/86 and the learned appellate Court by setting aside the order dated 24.4.1986 remanded the case to the learned Revenue authority for a fresh decision to ascertain whether there was any transfer of the land to the predecessor-in-interest of the present writ Petitioner by the Respondent No. 1 as envisaged under Section 187 of the T.L.R. and L.R. Act, 1960 and whether the said proceeding is at all maintainable under Section 187 of the said Act, but the Revenue authority, on remand, without giving any specific finding about the date of transfer has recorded a finding that the transfer took place after 1.1.1969 and directed restoration of possession in favour of Respondent No. 1 vide order dated 25.2.1995. Mr. Mr. Deb, learned Senior Counsel has submitted that before directing restoration of possession of the land by the Revenue authority, in exercise of the power conferred under Section 187(3) of the T.L.R. and L.R. Act, 1960, the authority must come to a definite finding that the transfer was effected by the Respondent No. 1 or her predecessor-in-interest in favour of the writ Petitioner or his predecessor-in-interest after 1.1.1969 and specific date of transfer, which has not been done in the instant case by the Revenue authority while passing the impugned order dated 25.2.1995. Hence, the learned Senior Counsel submits that it is a fit case where the impugned order dated 25.2.1995 is to be set aside and the restoration officer, Belonia may be directed to make a fresh enquiry and decide the such proceeding afresh by recording the specific finding about the date of transfer of the land by the Respondent No. 1 or her predecessor-in-interest in favour of the Petitioner or his predecessor-in-interest and also whether the proceeding under Section 187 is at all maintainable. 4. Mr. R. Dutta, learned Counsel appearing on behalf of the Respondent has submitted that it is evident from the statement made in the writ petition that the Petitioner is claiming title in respect of the land in question by virtue of the compromise decree passed on 23.6.1969 in Title Suit No. 31 of 1969 by the learned Munsiff, Belonia. The Plaintiffs claim being based on the said decree passed on 23.6.1969 i.e., much after the cut-off date of 1.1.1969, the Revenue authority has rightly passed the order dated 25.2.1995 directing restoration of the possession in favour of the Respondent 1 by ejecting the Petitioner as Section 187 of the T.L.R. and L.R. Act prohibits transfer of land by the tribal to the non-tribal without permission from the competent authority. In the instant case, according to the learned Counsel, no such permission was obtained from the competent authority and, therefore, the compromise decree which was passed on 23.6.1969 cannot affect the right of the scheduled tribes under Section 187 of the T.L.R. and L.R. Act, 1960. According to the learned Counsel, the provision of Section 187 has been amended by the Sixth and Seventh Act, which came into force on 11.2.1969. According to the learned Counsel, the provision of Section 187 has been amended by the Sixth and Seventh Act, which came into force on 11.2.1969. Under the amended provision of Section 187-B, the Revenue authority has the power and jurisdiction to restore possession of the land to the scheduled tribe if the possession of such land is parted with fully or partly in favour of anon-tribal after 1.1.1969. Therefore, according to the learned Counsel, the impugned order dated 25.2.1995 was rightly passed by the revenue authority and hence, the writ petition filed by the Petitioner is liable to be dismissed. learned Counsel for the Respondents in support of his contention has placed reliance on a Division Bench judgment of this Court in Smt. Saraju Bardhan v. State of Tripura reported in (1988) 2 GLR 83. 5. I have considered the submissions of the learned Counsel for the parties and also perused the pleadings in the writ petition. No affidavit-in-opposition has been filed by the Respondents. No record has been produced. 6. It appears from the compromise decree dated 23.6.1969 passed by the learned Munsiff, Belonia in Title Suit No. 31 of 1969 filed by the predecessor-in-interest of Petitioner against the predecessor-in-interest of Respondent No. 1 that the said suit was compromised in terms of Solenama executed between the parties, whereby the predecessor-in-interest of Respondent No. 1 admitted that he is the benamdar of the predecessor-in-interest of the writ Petitioner in respect of the entire suit land and he or his heirs have no claim over the said property. The said suit was not the suit for declaration of right, title and interest in favour of the predecessor-in-interest of the Petitioner but a suit for decree of benamdar over the suit land. 7. The Petitioner in paragraph 7 of the writ petition has stated that the Respondent No. 1 Smt. Puma Laxmi Tripura has filed an application for restoration of her possession in the land involved in the present writ petition before the Revenue authority, in which the order of restoration was passed and against which an appeal was preferred by the predecessor-in-interest of the present Petitioner before the Collector, who vide order dated 22.6.1987 remanded the matter to the Revenue authority for fresh investigation and for deciding the said application afresh. It appears from the order dated 22.6.1987 (Annexure-3 to the writ petition) that an appeal being Rev. It appears from the order dated 22.6.1987 (Annexure-3 to the writ petition) that an appeal being Rev. Case No. 21/86 was registered before the learned District Magistrate and Collector, South Tripura, where in the predecessor-in-interest of the present Petitioner was the Appellant and one Judha Mani Tripura was the Respondent. The said appeal was preferred in the year 1986 against the order dated 24.4.1986 passed by the learned Revenue Court directing restoration of possession in favour of Judha Mani Tripura. The said appeal was disposed of by the learned District Magistrate and Collector vide order dated 22.6.1987. It appears from the said order that Judha Mani Tripura, the Respondent therein sold 0.80 acres of land in favour of Krishna Mangal Tripura, predecessor-in-interest of Respondent No, 1 by registered deed No. 4425 dated 31.5.1967. It also appears from the said order that the learned Collector has observed that the transaction relating to the said 0.80 acres with Krishna Mangal Tripura is separate and has nothing to do with the appeal pending before him. It is, therefore, evident that the proceeding which was decided by the impugned order dated 25.2.1995 is not the same proceeding which was involved in Rev. Case No. 21/86 and disposed of on 22.6.1987. The parties in both the proceedings are also different. Though the Petitioner claims in paragraph 7 of the writ petition that the Respondent No. 1, Purna Laxmi Tripura has initially got the restoration of possession of the land, against which the appeal being Rev. Case No. 21/86 was preferred before the learned District Magistrate and Collector, it appears from the description of the parties in the said Rev. Case 21/86 that the Respondent No. 1, was not a party in the said appeal proceeding before the learned District Magistrate and Collector. 8. The Restoration Officer, Belonia, South Tripura by order dated 25.2.1995 has directed the restoration of possession of the land in favour of Respondent No. 1 who is the Petitioner in case No. 329/R/94 and in exercise of the power under Section 187(3) of T.L.R. and L.R. Act, 1960 by holding that the transfer of land took place after 1.1.1969 and without the permission of the competent authority, as the same is in contravention of the provision contained in Section 187(1) of the said Act. 9. 9. The description of the land given in the schedule of the decree passed by the Civil Court on 23.6.1969 in Title Suit No. 31169 is as follows: SCHEDULE OF LANDS (1) Police Station and Sub-Registry and Tehasil Belonia, Mouza-Sonaichari, within that lands with revenue assessed at Rs. 7.50 with case 0.47, lands in total 12 kanis within Jote N. 203 with proportionate rent two kanis of lands, which is recorded in the present settlement operation I Dakshin Sobaichari, Mouza Khatian 86. Butted and bounded. North and East-Tekbek Tilla, West-Krishna Mangal Tripura. Within this Khatian and Holding N. 45. Total land measuring 0'73 satak. 10. The land involved in Case No. 329/R/94 registered under Section 187 of T.L.R. and L.R. Act, 1960 is the land measuring 2.46 acres covered by Khatian No. 22 and plot Nos. 1597, 1701, 1759, 1762 and 1663 of Belonia Sub-Division, T.K. Matai. On perusal of the schedule of the land described in the decree passed by the Civil Court on 23.6.1969 and the schedule of the land involved in the proceeding under Section 187 of T.L.R. and L.R. Act, 1960, on the face of it, are two different lands as the land involved in the suit was 12 Kanis and the land involved under Section 187 is 2.46 acres. Therefore, the claim of the Petitioner that the land involved in the civil proceeding as well as in the proceeding under Section 187 of the T.L.R. and L.R. Act, 1960, are the same, cannot be accepted, in view of the land clearly mentioned in schedule to both the orders. 11. Therefore, the claim of the Petitioner that the land involved in the civil proceeding as well as in the proceeding under Section 187 of the T.L.R. and L.R. Act, 1960, are the same, cannot be accepted, in view of the land clearly mentioned in schedule to both the orders. 11. The Petitioner has claimed that the land involved in the proceeding under Section 187 of T.L.R. and L.R. Act, was purchased by his predecessor-in-interest in benami in the name of the predecessor-in-interest of the Respondent No. 1 for which a suit being Title Suit No. 31/69 was filed by the predecessor-in-interest of the Petitioner against the predecessor-in-interest of the Respondent No. 1, which was decreed on compromise and as the said land was purchased on 21.2.1966 and the Civil Court by compromise decree declared that the land was purchased in benami by the predecessor-in-interest of the Petitioner, therefore he deemed to have purchased the land on 21.2.1966 i.e., much prior to 1.1.1969 and, therefore, the Revenue authority has no power and jurisdiction to direct restoration of possession as has been done by the impugned order dated 25.2.1995. The said contention of the learned Counsel for the Petitioner cannot be accepted in view of the fact that the land involved in civil suit is different from the land involved in the proceeding under Section 187 of the T.L.R. and L.R. Act, 1960. 12. Section 187 of the T.L.R. and L.R. Act, 1960 was enacted to make special provision regarding scheduled tribes with a view to protect the interest of the scheduled tribe. Sub-section (1) of Section187 provides that no transfer of the land by a person, who is a member of the scheduled tribe, to a person who is not a member of any such tribe, shall be valid unless it is made with the previous permission from the Collector in writing in the manner prescribed. Therefore, the said provision imposes a bar on transfer of land by a person belonging to scheduled tribe to a person who does not belong to scheduled tribe and any transfer mad 187(1) of the said Act is not (sic) Sub-section (3) of Section 187 empowers the Revenue authority to eject such transferee and restore possession of such transferred land or part thereof to the transferor provided such transfer was made on or after 1.1.1969. 13. 13. The Petitioner claims that predecessor-in-interest of the Petitioner has acquired right, title and interest by virtue of the compromise decree passed by the learned Civil Court on 23.6.1969 in Title Suit No. 31/69. It is an admitted position of fact that the land was purchased by the predecessor-in-interest of Respondent No. 1 by registered deed of sale in his name but the said transaction has claimed to be benami by the predecessor-in-interest of the Petitioner. Since the Petitioner has claimed that he got the right, title and interest in respect of the land involved in the said suit by virtue of the compromise decree dated 23.6.1969, i.e., after 1.1.1969 as envisaged under Sub-section (3) of Section 187, the Revenue authority has power and jurisdiction to direct restoration of possession by evicting the Petitioner from the land in question. 14. A Division Bench of this Court in Smt. Saruja Bardhan v. State of Tripura (supra) has held that the provision of Section 187(1) of T.L.R. and L.R. Act, 1960 are mandatory and any transfer made in contravention with the said provision is void. It has further been held in the said case that even if any right is claimed by a non-tribal over the land belonging to the tribal by virtue of the compromise decree passed by the Civil Court, that shall not affect the right of the members of the scheduled tribe. In the instant case, as observed above, the Petitioner has claimed right over the land by virtue of the compromise decree passed in the said civil suit No. 31/69 on 23.3.1969 i.e., much after 1.1.1969 and, therefore, even such compromise decree cannot authorize the Petitioner to transfer the land in his favour and possess the same by virtue of the said compromise decree, the same being contrary to the provision of Section 187(1) of the Act. 15. 15. At one stage, I was thinking of remanding the case to the Revenue authority for giving a fresh decision by recording a specific finding as to whether there was any transfer made either by the Respondent No. 1 or her predecessor-in-interest in favour of the Petitioner or his predecessor-in-interest after 11.1.1969 so as to enable the Revenue authority to exercise his jurisdiction under Section 187(3) of the T.L.R. and L.R. Act, but, since the whole basis of the writ petition filed by the Petitioner is the compromise decree obtained by the predecessor-in-interest of the Petitioner on 23.6.1969 in Title Suit No. 31/69 claiming that the predecessor-in-interest of the Petitioner has acquired the right, title and interest over the land involved in the suit by virtue of the said compromise decree, I have decided not to remand the case to the learned Revenue authority as the such compromise decree, even if land involved in the said suit and the proceeding under Section 187 of the T.L.R. and L.R. Act, 1960 are same, cannot give any valid right either on the Petitioner or on his predecessor-in-interest to get the land belonging to the member of the scheduled tribes, the same being violative of the provision contained in Section 187 of the T.L.R. and L.R. Act as held by the Division Bench of this Court that such compromise decree shall not affect the rights of the members of the scheduled tribes as envisaged in Section 187 of the T.L.R. and L.R. Act, 1960. The Petitioner's claim being that he and her predecessor-in-interest acquired the right, title and interest by virtue of compromise decree dated 23.6.1969, such compromise decree having been passed after 1.1.1969, the Revenue authority has rightly directed restoration of possession of the Respondent No. 1 in respect of the land by evicting the writ Petitioner from the land in question. Moreover, the land involved in the suit as well as the proceeding under Section 187 of the T.L.R. and L.R. Act, 1960, as held above, are different. The Petitioner has not been able to show any semblance of right over the land involved in the proceeding under Section 187 of the T.L.R. and L.R. Act, and, hence, it cannot be held that the impugned order dated 25.2.1995 suffers from any illegality. 16. The Petitioner has not been able to show any semblance of right over the land involved in the proceeding under Section 187 of the T.L.R. and L.R. Act, and, hence, it cannot be held that the impugned order dated 25.2.1995 suffers from any illegality. 16. In view of the above, I do not find any merit in the writ petition and hence the same is dismissed. No costs. Petition dismissed.