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2009 DIGILAW 533 (JHR)

Krishna Rawani v. Pero Marandi

2009-04-13

R.K.MERATHIA

body2009
JUDGMENT : This second appeal has been filed against the judgment and decree dated 18.2.2005/5.3.2005, passed by learned Additional District Judge, Fast Track Court No. 4, Deoghar in Title Appeal No. 5 of 1993/ 137 of 1997 setting aside the judgment and decree dated 21.6.2003/3.7.2003 , passed by Sub Judge-VIIth, Deoghar in Title Suit No. 137 of 1997. 2. Mr. J.P. Jha, learned senior counsel appearing for the appellants, assailed the judgment of learned lower appellate court on various grounds. 3. This suit was filed by the plaintiffs-respondents for the following reliefs:- (i) To declare that the settlement of plot no. 48 Bandh of mouza Gurubad no. 541 in favour of Chigu Rawani creating his fishery right at annual rate of Rs.2/-is against the provision of law and record of right and is illegal, invalid void, abinitio and without jurisdiction and against the natural justice. (ii) The further relief sought is for the declaration that the public character of Bandh plot no. 48 of mouza Gurubad no. 541 cannot be changed or altered. (iii) It is also sought for declaration that the entire village raiyat including the plaintiffs are also entitled in repair, irrigation and fishery right over the bandh of plot no. 48. (iv) For declaration that the entry regarding the fishery right of Chigu Rawani be corrected accordingly and the plaintiffs have also sought relief for the cost of the suit. 4. The trial court, inter alia, held as follows. The fishery right of Chigu Rawani cannot be declared illegal. The court has got no .jurisdiction to deal with the settlement operation. The suit for reopening the settlement operation/cancellation of fishery right of Chigu Rawani, having been filed after about 60 years, was barred by limitation. Musafir Rawani and Hemant Marandi ( uncle of the plaintiffs) had contested the claim of Chigu Rawani in Settlement Objection Case No. 714/1931 and therefore the plaintiffs are bound to accept the state of affairs stated by them and this operates as estoppel, waiver and acquiescence on the part of the plaintiffs. 5. The plaintiffs filed the said appeal. Learned lower appellate court after considering the respective cases of the parties, the evidences on record, and the law, inter alia, held as follows. 5. The plaintiffs filed the said appeal. Learned lower appellate court after considering the respective cases of the parties, the evidences on record, and the law, inter alia, held as follows. The settlement operation was restarted in the year 1982 in Santhal Parganas and the same was continuing and therefore the settlement entry made in the Gangers Settlement could be reinvestigated and corrected in view of the provisions of Santhal Pargana’s Settlement Regulation, 1872 ( Regulation for short). The dispute was referred under Section 5-A of the Regulation by the Settlement Officer to the Civil Court and therefore the Civil Court is empowered to exercise all the powers of the Settlement Officer and had jurisdiction to decide the dispute. The suit was not barred by limitation The judgment reported in 2000 (1) PLJR 72 supported the contention of the plaintiffs and the judgment relied by the defendants- 2004 (2) JCR 257 was not relevant. The disputed pond was a Government land, on which general public had right. The purported settlement of fishery right to Chigu Rawani, who was Pradhan of the village at the relevant time i.e. in 1931, was done ignoring the right of general public, and it was illegal and void ab-initio. The plaintiffs could pursue the suit in representative capacity. With these findings, the judgment of the trial court was set aside. 6. In my opinion, the lower appellate court has correctly met the reasonings while reversing the judgment of trial court. No substantial question of law is involved in this second appeal, which is accordingly dismissed. However, no costs.