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2009 DIGILAW 616 (JHR)

Durga Charan Sardar v. State of Bihar

2009-04-27

AJIT KUMAR SINHA

body2009
ORDER The present writ petition has been preferred for setting aside the order dated 11.8.98 passed in Singhbhum Revenue Revision No.347 of 87 by the Respondent no.2, the Commissioner, South Chotanagpur Division, Ranchi contained in Annexure-6 and the order dated 17.8.87 passed in S.A.R. Appeal No. 75 of 85-86 by the respondent no.3 the Deputy Commissioner, Singhbhum West contained in Annexure-5 and the order dated 26.8.85 passed in S.A.R. Case No. 85 of 79-80 by the respondent no.4 the S.D.O. Saraikella, Singhbhum West contained in Annexure-4 and further directing the respondents not to disturb the possession of the petitioner over the lands in question. 2. The facts in brief are stated as under : The petitioner filed a petition S.A.R.Case No.85 of 79-80 before Sub-Divisional Officer, Saraikella, Singhbhum West for restoration of lands bearing plot no. 339(of area 0.22 acres) plot No.340(Area of 1.53) plot No. 343 of area 0.73 acres and plot no.354 ( of area 0.83 acres) of total area 3.31 acres under Khata no. 37 of village Sanjar within Rajnagar Police Station, Dist. Singhbhum West against Chinibas Mahto father of the opposite party on the ground that the said Chinibas Mahato is in possession of the aforesaid lands on the basis of an illegal compromise decree obtained by practicing fraud on the petitioner’s father Tanu Sardar and on his uncle Panjam Sardar and also by suppressing the facts and law in the court of the Munsif at Saraikella. The aforesaid case was registered as S.A.R. case no. 85/79-80 before the Sub-Divisional Officer, at Saraikella. During the pendency Chinibas Mahato died and he was substituted by his two sons namely Yadav Mahato and Suren Chandra Mahato and they were made parties and they filed their show-cause stating therein that the O.P. purchased the land from the grandfather of the applicant petitioner more than 30 years ago on payment of valuable consideration and since then they are in cultivating possession. They have also contended that they had valid right, title by adverse possession in the land long before S.A.R. Act came into force in the locality. 3. The respondents herein stated that the land in question was wrongly recorded in the name of the applicant’s father and its co-sharer in the last Revisional survey. They have also contended that they had valid right, title by adverse possession in the land long before S.A.R. Act came into force in the locality. 3. The respondents herein stated that the land in question was wrongly recorded in the name of the applicant’s father and its co-sharer in the last Revisional survey. The Opposite party filed a Title Suit No. 46/74 for the land in question for declaration of his title and possession with a prayer that the survey entry in the name of Tuna Sardar and others are wrong. The Title Suit ended in compromise decree in favour of the Opposite party wherein Tuna Sardar and others ancestors of the applicant have admitted the right, title and possession of the respondent nos. 5 & 6 with regard to the land in question. They have admitted that the survey entry of the proceeding land in question is wrong. After hearing both sides the learned Sub-Divisional Officer allowed the restoration application S.A.R.No.85/79-80 of the petitioner and directed to restore the land in question to the applicant vide its order dated 25.10.80 and the land was restored to the petitioner and since then the petitioner is in possession of the land in question till today. Thereafter, the opposite party preferred an appeal against the aforesaid order of restoration which was registered as T.A. Misc. Appeal No.76 of 1980-81 and the learned Appellate Court after hearing the matter remanded the case for disposal again to the Sub-Divisional Officer, Saraikella. Upon remand, the learned Sub-Divisional Magistrate after hearing both sides was pleased to dismiss the prayer for restoration of the lands vide its order dated 26.8.85. The petitioner being constrained preferred an appeal against the order of learned Sub-Divisional Officer which was registered as S.A.R. case no.74/85-86 and the learned Dy. Commissioner after hearing the parties was pleased to dismiss the said appeal vide its order dated 17.8.87. Thereafter, a revision was preferred before the Commissioner, South Chotanagpur Division, Ranchi challenging the aforesaid order being Singhbhum Revenue Revision No. 347 of 1987 which was also dismissed vide impugned order dated 11.8.98. 4. The main contention raised by the learned counsel for the petitioner is that there was no obligation of limitation in a proceeding under Section 71-A of the Chotanagpur Tenancy Act. 4. The main contention raised by the learned counsel for the petitioner is that there was no obligation of limitation in a proceeding under Section 71-A of the Chotanagpur Tenancy Act. It has further been contended that the compromise decree is a fraudulent transfer since it was based on an oral transfer. It has further been contended that Deputy Commissioner was a necessary party in any suit and since he was not impleaded, the compromise decree has no value in the eyes of law in view of Section 46(3) of the C.N.T. Act. 5. The respondents have contended that the restoration application was obviously barred by limitation. It has further been contended that the compromise decree has not been challenged. It has further been contended that the actual possession was much more than 30 years old and that the Deputy Commissioner was not a necessary party when the suit was filed in 1974 since that requirement was brought about under Section 46 of the C.N.T. Act only after introduction of C.N.T. Act, 1975 and thus the authorities below rightly gave a concurrent finding that the land in question was admittedly transferred in the year 1938 and provision of Section 71-A does not apply in any case since C.N.T. Act was not made applicable to Saraikela and it was introduced in the Saraikela State only in the year 1951. 6. I have considered the rival submissions, arguments and the pleadings. The admitted fact remains that the transfer took place in the year 1938 and C.N.T. Act was not applicable at that point of time in Saraikela State and it was only introduced in 1951, even the suit was filed in 1974 whereas the requirement of Deputy Commissioner to be impleaded was introduced by way of an Amendment Act, 1975 in Section 46. There is no dispute about the fact that the compromise decree was never challenged or questioned and the possession of the land in question with the father of the opposite party was for over 30 years and the Civil Court passed the decree declaring the settlement entry as wrong and erroneous and declared the title and possession of the father of the opposite party. The fact remains that the father of the petitioner did not prefer any appeal and as such the petitioners cannot say that the land should be restored to him. The fact remains that the father of the petitioner did not prefer any appeal and as such the petitioners cannot say that the land should be restored to him. The transfer by sale was effected in 1938 when the provisions of C.N.T. Act was not applicable in Saraikela State. Another fact which needs consideration that even assuming that the period of limitation was 30 years, still then the restoration case was hopelessly barred by limitation and even under Section 71-A which refers to the words ‘if at any time’ the same has been interpreted time and again both by this Court and the Hon’ble Supreme Court as reasonable time. 7. It cannot be taken to mean that the powers could be exercised without any time limits. The Hon’ble Supreme Court considered this issue in (2000) 5 SCC 141 titled as Jai Mangal Oraon V. Mira Nayak and at para-16 held that the period of 40 years could not be condoned in view of the rights of parties having been acquired in the mean time under the ordinary law as well as law of limitation. This issue was again considered in 2004 (8) SCC (Situ Sahu Vs. State of Jharkhand & Ors) with reference to Article 65 of the Limitation Act, 1963 which provided 30 years under the Limitation Act for moving application for restoration and the Hon’ble Supreme Court held that the lapse of 40 years is certainly not a reasonable time for exercise of power and in that view held that Special Officer had not exercised its power correctly under Section 71 A of Chotanagpur Tenancy Act after such lapse of unreasonable long time. Again in a recent Judgment as reported in 2008 (2) JCR pg 1 (SC), the Hon’ble Supreme Court again reiterated the view by holding that the power should be exercised within a reasonable period of time. In the present case also more than 41 years had lapsed in challenging the transfer and the same cannot held as a reasonable time for exercising the power. In the present case also more than 41 years had lapsed in challenging the transfer and the same cannot held as a reasonable time for exercising the power. Even this court vide its order in a similar matter as reported in 2009 (1) JCR 193 (Jhr) Akhouri Akhileshwari Charan Lal V. State of Bihar while relying upon the aforesaid Judgment reiterated the view of reasonableness and held that application for restoration has to be moved and/or the power has to be exercised by the Deputy Commissioner within a reasonable period of time. 8. Considering the aforesaid settled law and the concurrent finding by all the three authorities below, I find no merit in this writ petition and the same is accordingly dismissed.