Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 718 (JHR)

Karolina Ekka v. State Of Bihar

2006-06-19

PERMOD KOHLI

body2006
JUDGMENT Permod Kohli, J. 1. Petitioners named, herein, have called in question the validity and propriety of the order dated-25 th of January, 1999 passed in S.A.R. Revision No. 136 of 1987 by the Commissioner, South Chhotanagpur Division, Ranchi in exercise of his Revisional power under Section 217 of the Chhotanagpur Tenancy Act, 1908, hereinafter referred to as the "Act" whereby order of the appellate authority dated-19 th of January, 1987 has been set aside and possession restored to respondents. 2. Briefly stated facts leading to the filing of the present petition are that Martin Ekka and Bandan Ekka, the two petitioners approached the Special Officer having power to initiate proceedings under Section 71-A of the Chhotanagpur Tenancy Act, 1908 with an application for restoration of the possession of land bearing Khata No. 51 Plot Nos. 634 and 635, measuring an area of 87 decimals and 1.00 acre respectively of village Tikratoli, P.S. Ratu, District Ranchi on the ground that the transfer of the land took place in contravention of the provisions of Section 46 of the Chhotanagpur Tenancy Act. The aforesaid case was registered as S.A.R. Case No. 61 of 1978-79. The Special Officer after putting the other side to notice and hearing the parties passed an order dated-15 th of May, 1980 dismissing the application. An appeal came to be preferred before the Additional Collector, Ranchi registered as S.A.R. Appeal No. 217 R 15 of 1980-81. The Collector allowed the appeal and set aside the order of the Special officer and directed restoration of the possession of the land in favour of the original applicants vide his order dated-19 th of January, 1987. 3. It is relevant to mention that the original authority had dismissed the application on the plea that the land in question was transferred in favour of one Baldeo Sahay in the year 1937-38 in an auction sale. The said Baldeo Sahay after acquiring the rights over the lands in question transferred the same in favour of one Biruwa Oraon, predecessor in interest of respondents vide registered sale deed dated 06 th of December, 1956 and consequently a Mutation Case No. 53 R 27 of 1957-58 came to be attested. The Special Officer, accordingly, ruled that the provisions of Section 71A of the Chhotanagpur Tenancy Act being not applicable to auction sale, claim of the applicants is not sustainable. The Special Officer, accordingly, ruled that the provisions of Section 71A of the Chhotanagpur Tenancy Act being not applicable to auction sale, claim of the applicants is not sustainable. The appellate authority while setting aside the judgment came to the conclusion that no record whatsoever was produced before the Special Officer relating to the transfer of property, in favour of Baldeo Sahay in an auction sale and in absence of the record before the original as also the appellate authority order of Special Officer is not sustainable. The judgment of the Special Officer was accordingly set aside and direction issued for restoration of the property to the applicants. Being aggrieved of the order of the appellate authority, petitioner filed a Revision before the Commissioner, South Chhotanagpur Division invoking revisional jurisdiction, as no further appeal is permissible under the law. The revisional authority came to the conclusion that the application filed by the applicants was barred by time having been preferred after 12 years and the respondents being in adverse possession have a right to retain possession. 4. I have heard the learned Counsel appearing for the parties at length. 5. The order of the Commissioner is assailed on the ground that the findings of the revisional authority regarding the period of 12 years for adverse possession is contrary to law. It is further contended by Mr. Jai Prakash, learned Counsel appearing for the petitioner that the judgment relied upon i.e. 1998 (1) BLJR 149 has no application to the facts of the case and hence the finding is liable to be set aside. He has also contended that there is no question of adverse possession, the possession being permissive, Reliance is placed upon a judgment of this Court reported in the case of Md. Salimuddin @ Dhaiba v. Commissioner, South Chotanagpur Division, Ranchi reported in 1993 (1) P.L.J.R. 14, wherein, this Court while interpreting the provisions of Section 71-A of the Chhotanagpur Tenancy Act read with Articles 64 and 65 of the Limitation Act, held that the limitation for the purposes of this Section for filing an application is 30 years. To the same effect is another Full Bench judgment of this Court, reported in 1983 B.L.J.R. 609. To the same effect is another Full Bench judgment of this Court, reported in 1983 B.L.J.R. 609. Apartfrom the question of limitation, there is nothing on record to show how the permissive possession of the predecessor in interest of the respondent became hostile and consequently adverse resulting into conferment of title over the property. The findings of the Commissioner are thus (sic) sustainable in law. The order impugned is, accordingly, set aside. With the setting aside of the order, this leaves the Court to examine the order passed by the appellate authority. I have perused the order dated 19 th at January, 1987 passed by the appellate authority who has set aside the order of the Special Officer only on the ground of the non-production of the record either before the original authority or before him. In my considered opinion, this is not a valid ground for setting aside the order. The appellate authority being a final court to fact was required to deal with the merits of the case and return its own findings. Otherwise also, non-production of any record alone cannot be a ground for setting aside the judgment. The order of the appellate authority is cryptic one and cannot be approved. I, accordingly, set aside the order of the appellate authority. As far the order of the original authority is concerned, it is based upon no material. Special Officer has simply relied upon bare pleadings of respondents regarding auction sale in favour of Baldeo Sahay. No record/evidence was brought on record to substantiate the same. This order being perverse is also liable to be set aside and I order accordingly. As a consequence of above, this case is remanded to the original authority (Special Officer) for holding a fresh enquiry with regard to the circumstances leading to the transfer of the land. The authority will also enquire into the question, how Baldeo Sahay entered into possession of the land. The parties shall be provided an opportunity by the original authority to lead evidence and after providing such an opportunity, fresh orders will be passed. Let the enquiry be completed within a period of six months. 6. During the pendency of this writ petition petitioner No. 1 has died and his legal representatives have been brought on record. The parties shall be provided an opportunity by the original authority to lead evidence and after providing such an opportunity, fresh orders will be passed. Let the enquiry be completed within a period of six months. 6. During the pendency of this writ petition petitioner No. 1 has died and his legal representatives have been brought on record. Parties are directed through their learned Counsel to appear before the special Officer at Ranchi on 15 th of July, 2006.