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2008 DIGILAW 503 (JHR)

Mahendra Singh v. State of Bihar

2008-04-29

D.G.R.PATNAIK, M.KARPAGAVINAYAGAM

body2008
JUDGMENT: D.G.R. Patnaik, J.- challenge in this appeal is against the order of the learned Single Judge whereby petitioner's prayer for quashing the order dated 19.11.1994 passed by the D.C.L.R. for restoration of possession of the land in dispute in favour of the respondents 5 to 9, was rejected. 2. Case of the petitioner in brief is that the land of Khata No. 192 of village Bongabar was originally recorded as a raiyati land in the name of a tribal Bahira Munda. After his death, his two sons namely, Raghubir Munda and Jhabu Munda had inherited the property. Jhabu Munda died issueless, whereupon his brother Raghubir Munda became the sole raiyat of the land. The petitioner has claimed that after the death of Raghubir Munda; his surviving five sons had settled the land by virtue of Hukumnama dated 1.3.1946 in favour of one Chhangilal Agrawal. The settlee on coming in possession of the land, filed a Title Suit No. 42 of 1960 for a declaration of his right, title, interest and possession of the land. The suit was decreed in terms of a compromise petition between Chhangilal Agrawal and four sons of Raghubir Munda. On the basis of the decree, Chhangilal Agrawal sold the land to one Kamta Prasad Singh, who in turn, sold the same to the petitioner's father Kailash Singh by virtue of a Registered Sale Deed dated 6.2.1969. After acquiring title and possession of the land by virtue of the Registered Sale Deed, the purchaser Kailash Prasad Singh made several constructions over the land in the year 1969 and was enjoying possession over the land. It was much later in the year 1983 that Malwa Munda, one of the sons of late Raghubir Munda and one of the respondents (since deceased) filed an application for restoration of the land vide Restoration Case No. 4 of 1983 against the petitioner's father under Section 46(4A) of the Chhotanagpur Tenancy Act. The application was dismissed by the D.C.L.A., Hazaribagh on 30.12.1983 as being barred by limitation. Without preferring any appeal' against the order, yet another application for restoration of the land was filed in the year 1986 vide Land Restoration Case No. 528 of 1986 against the petitioner. During the pendency of the application, petitioner's father Kailash Singh died in the year 1987, whereafter the petitioner came in possession of the land. Without preferring any appeal' against the order, yet another application for restoration of the land was filed in the year 1986 vide Land Restoration Case No. 528 of 1986 against the petitioner. During the pendency of the application, petitioner's father Kailash Singh died in the year 1987, whereafter the petitioner came in possession of the land. The petitioner's application for substitution of his name in place of his deceased father in the restoration case, which was filed in the year 1989, was ultimately allowed by order dated 19.5.1994. However, by the impugned order dated 19.11.1994 the respondent D.C.L.R. directed restoration of the land in favour of the respondents. Against the order of restoration, the petitioner preferred a restoration appeal vide Land Restoration Appeal No. 4 of 1995 before the Additional Collector. The appeal was allowed by order dated 27.11.1995 setting aside the order of restoration dated 19.11.1994 passed by the D.C.L.R. The respondents 5 to 9 thereafter moved in Revision before the Commissioner against the order of the appellate authority vide Restoration Revision No. 140 of 1996. By order dated 26.9.2000 the Commissioner allowed the revision application, setting aside the order of the appellate authority and confirming the order of the D.C.L.R. for restoration of lands in favour of the respondents 5 to 9. Against the order of the D.C.L.R., the petitioner preferred the writ application which was dismissed by the learned Single Judge. 3. In the writ application, the petitioner had raised the following grounds: 1. that in view of the fact that earlier application for restoration filed by Malwa Munda was dismissed, the subsequent application for restoration of the same land filed by the same person, was barred by the principles of Res judicata. 2. that the restoration application was barred by limitation under provisions of Section. 46(4A) of the Chhotanagpur Tenancy Act inasmuch as, it was filed after more than 12 years from the date of dispossession: 4. After hearing the petitioner and the respondents, the learned Single Judge dismissed the writ application with the following observations; 1. that the Commissioner in his order dated 26.9.2000 has elaborately discussed the facts of the case and has recorded a finding that the respondents were dispossessed in the year 1976. After hearing the petitioner and the respondents, the learned Single Judge dismissed the writ application with the following observations; 1. that the Commissioner in his order dated 26.9.2000 has elaborately discussed the facts of the case and has recorded a finding that the respondents were dispossessed in the year 1976. A positive evidence to draw such inference was that the respondents were issued rent receipts till the year 1976 which implied that they were found to be in possession of the lands in the year 1976 and it was in the same year that they were dispossessed by the petitioner. 2. that the application for restoration filed in the year 1986 was not barred by the principles of Res Judicata in view of the fact that in the earlier restoration proceeding initiated in the year 1983 before D.C.L.R. on the basis of the report of the Circle Officer, the respondents herein were not impleaded as party and as such, they could not be aware of the proceeding which was later dropped on the basis of the showcause filed by Chhangilal Agrawal. Even otherwise, no finding was recorded in the earlier proceeding by the D.C.L.R. on the issue as to whether the respondents who were members of the Scheduled Tribes were dispossessed more than 12 years ago. 3. that the compromise decree purportedly obtained by Chhangilal Agrawal in Title Suit No. 42 of 1960 was rightly found by the Commissioner to be a collusive decree. Even otherwise, in the compromise petition, some Dar raiyat settlement was admitted by the respondents, members of the Scheduled Tribes, but there was no adjudication on the issue relating to the right, title and interest of Chhangilal Agrawal over the suit' properties for which the suit was filed and, therefore, the compromise decree was of no avail to the petitioner. Furthermore, the purported Hukumnama claimed to have been executed by the sons of the deceased Raghubir Munda was never- produced by the petitioner in any of the proceedings. 7. Furthermore, the purported Hukumnama claimed to have been executed by the sons of the deceased Raghubir Munda was never- produced by the petitioner in any of the proceedings. 7. In this appeal, the appellant has assailed the order of the learned Single Judge on the following grounds: i. that in absence of any denial or dispute raised by the respondents 5 to 9 regarding the genuineness of the signature of Malwa Munda on the compromise petition and, in the light of the admission made by Malwa Munda in the compromise petition to the effect that that the petitioner's predecessor in interest namely, Chhangilal Agrawal had acquired possession of the land in the year 1960, the compromise decree cannot be brushed aside as collusive and as of no consequence. ii. that in view of the statements made in the restoration petition regarding the year of alleged dispossession being contrary to the year admitted in the compromise petition, it has to be deemed that the year of dispossession was 1960 and not 1976 and the findings of the Commissioner to the contrary, are perverse. iii. that even if the decree passed in the title suit is considered as a collusive decree suggesting thereby that the transfer of lands was made by fraudulent method, such transfer is liable to be annulled under the provisions of Section 46(4A) of the Chhotanagpur Tenancy Act, but even then, the provisions of the section can be invoked only within the time prescribed and not beyond the period of limitation. iv. that the facts of the case are therefore not covered under the provisions of Section 71 (A) of the Chhotanagpur Tenancy Act and as such, the period of limitation for entertaining the restoration application cannot be extended to 30 years. 8. Shri Indrajeet Sinha, learned counsel for the appellant, disputes the finding on facts as recorded in the Revisiorial Order by the Commissioner. Learned counselexplains that an application was filed by the four surviving sons of late Raghubir Munda in 1976 alleging therein that they were forcibly dispossessed from their lands 10 years ago by the father of the present appellant and had prayed for restoration of the same. Learned counselexplains that an application was filed by the four surviving sons of late Raghubir Munda in 1976 alleging therein that they were forcibly dispossessed from their lands 10 years ago by the father of the present appellant and had prayed for restoration of the same. After making inquiry, the Karmachari submitted a report on 3.10.1976 stating therein that the land in question stood recorded in the name of the original tenant Bahira Munda, although rent receipts are being issued in the name of Bharat Glass Works pursuant to the order passed in Mutation Case No. 55 of 1961-62. Since the Karmachari could not assess as to how the tribal land was obtained by Bharat Glass Works and, therefore, referred the matter through the Circle Officer to the Land Reforms Deputy Collector. On the basis of the report of the Karmachari, the Restoration Case No. 42 of 1977-78 under Section 46(4A) of the Chhotanagpur Tenancy Act was initiated. Later, the records of the Restoration Case went missing from the office of the D.C.L.R. which was ultimately retrieved in the year 1986. Whereafter, fresh notices were issued to the parties by the order of Sub-Divisional Officer. A fresh report was also called for from the Circle Officer after retrieval of the records which was re-numbered as Restoration Case No. 528 of 1986. Despite service of notice, only one of the respondents namely, Bhikmang Munda filed his appearance through vakalatnama on 29.12.1986 identifying himself as the son of Sohrai Munda. Later, he filed a fresh vakalatnama on 27.1.1994 claiming himself to be the son of late Raghubir Munda. The fact is that Bhikmang Munda was the son of Sohrai Munda and Lukhari Devi and he was the son of the granddaughter of the original tenant late Bahira Munda and there is a specific bar under the customary tribal law to the effect that the female descendants do not have any right of inheritance as held by the Supreme Court in the case of Madhu Kishwar and Others Vs. State of Bihar and Others reported in (1996)5 Supreme Court Cases 125 [: 1996(2) PLJR (SC) 133]. As such, the only person who was prosecuting the case namely, Bhikmang Munda had in fact no right over the land in question. State of Bihar and Others reported in (1996)5 Supreme Court Cases 125 [: 1996(2) PLJR (SC) 133]. As such, the only person who was prosecuting the case namely, Bhikmang Munda had in fact no right over the land in question. The Circle Officer had submitted his report in the restoration proceeding stating that the respondents tribal were forcibly dispossessed within 10 years of the filing of the restoration application. This, according to the learned counsel, is an error of record and contradicts the first report of the Karmachari 3.10.1976 wherein he had affirmed that mufation of the land in the name of Bharat Glass Works was done on the basis of the order passed in Mutation Case No. 55 of 1961-62. Learned counsel explains further that even in the impugned order of restoration dated 19.11.1994 passed by the D.C.L.R., there is no finding as to the specific date when the tribal was dispossessed from the land within 10 years and neither was any evidence adduced before the original court to come to any such finding. 9. As regards the decree in Title Suit No. 42 of 1960 as noted above, the Revisional Authority in the revisional proceeding has recorded a finding ,that compromise decree obtained in Title Suit No. 42 of 1960 was a collusive one. Learned Single Judge affirmed .the findings on the ground, firstly that the petitioner's predecessor had not filed either the purported Hukumnama or any chit of paper to confirm that the land, which admittedly stood recorded in the name of the tribal, was settled in favour of non-tribal Chhangilal Agrawal. It was also observed that compromise petition also did not specifically indicate that the defendants in the suit had conceded the claim of the plaintiff over the land and the compromise petition at best indicated that Dar-raiyat settlement was admitted by the defendants in the suit. It was also indicated that there was no adjudication of the right, title and interest of Chhangilal Agrawal over the lands for which the suit was filed by him. As such, compromise decree could not be considered as a legally valid instrument of transfer. Even otherwise, the petitioner has not shown any provision of law under which a recorded raiyat could make settlement of lands in favour of non-tribal by grant of Hukumnama. As such, compromise decree could not be considered as a legally valid instrument of transfer. Even otherwise, the petitioner has not shown any provision of law under which a recorded raiyat could make settlement of lands in favour of non-tribal by grant of Hukumnama. In the light of the above findings and observations of the Revisional Authority as also of the learned Single Judge, no valid order of mutation could have been passed on the basis of the decree obtained collusively which created no right in favour of the decree holder. 10. On the finding regarding year of dispossession, it may be noted that even according to the petitioner's own admission, report of the• Karmachari was submitted in the year 1976 after he made inspection of the land and had found that Bharat Glass Works was in possession over a part of the land. Significantly, the Karmachari had also reported that the lands stood recorded in the name of the tribal and he could not find any source of information as to how Bharat Glass Works came to be in possession of the land which belonged to a tribal. It is also indicated in the findings of the D.C.L.R. in the impugned order, passed in the restoration proceeding as well as in the order of the revisional authority, that rent receipts were issued to the tribal/respondents even in the year 1976 indicating thereby that till 1976 they were found to be in possession of the land. Report of the Circle Officer also confirms this fact with further explanation that it was in the same year that the tribals were dispossessed from the lands. Even if Bharat Glass Works had succeeded in obtaining an order of mutation of their names in the Revenue Records obviously on the basis of the compromise decree and the successive transfer deeds of the lands executed on the basis of the compromise decree, yet in the light of the finding that the decree was a collusive one, the order of mutation which was made without hearing the respondents, cannot create any legal right in favour of the non-tribal. Even otherwise, the fact which stood confirmed by the report of the Karmachari as also by the Circle Officer is that, the tribals were found factually in possession of the lands till the year 1976 and it was in the same year that they were dispossessed 'by the petitioners. It is ir:1 the light of such finding of fact that the learned Single Judge has observed that the year of dispossession of the respondents was 1976 and not earlier. The claim of the petitioner to the contrary, was therefore, rightly rejected by the learned Single Judge. 11. Referring now to the ground of Res Judicata as raised by the petitioner, it appears that the petitioner has laid much stress in the order dated 30.12.1983 passed in Restoration Case No. 4 of 1983. Admittedly, though the petition was purp9rtedly filed by and on behalf of Malwa Munda, son of late Raghubir Munda, but he did not file his appearance therein at all. Rather, it was the opposite party who had appeared •and filed show cause and on the basis of which, the proceeding was dropped. No adjudication was made in the said proceeding on the vital issues regarding the title of Chhangilal Agrawal over the disputed lands. Furthermore, it was only one of the successors of late Raghubir Munda who was represented in the said restoration proceeding, whereas the other co-sharers were conspicuously omitted The learned Single Judge has rightly observed that the order passed in restoration proceeding of 1983 cannot operate as Res Judicata against the co-sharers of the land. 12. Next, the petitioner's plea that the only person who had prosecuted the restoration proceeding was Bhikmang Munda who being the son of the grand-daughter of the original tenant, cannot have any right over the disputed lands since he had no right to inherit the lands under the customary law and that by suppressing these facts the said Bhikmang Munda had practiced fraud on •the court. It is to be noted that even if the said Bhikmang, Munda had no right or locus to pursue' the case, yet it is not that he alone had prosecuted the proceeding. The records indicate that one of the applicants in the restoration proceeding was Malwa Munda, son of late Raghubir Munda who undisputedly being one of the• heirs and successors of the original ancestor, had the locus to pursue the restoration proceeding. 13. The records indicate that one of the applicants in the restoration proceeding was Malwa Munda, son of late Raghubir Munda who undisputedly being one of the• heirs and successors of the original ancestor, had the locus to pursue the restoration proceeding. 13. For the reasons discussed above, we do not find any merit in this appeal. Accordingly, this appeal is dismissed. M. Karpaga Vinayagam, CJ.- I agree.