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2009 DIGILAW 909 (JHR)

Chakaram Mahato v. State of Jharkhand

2009-07-01

AJIT KUMAR SINHA

body2009
ORDER JUDGMENT: The present writ petition has been preferred for issuance of an appropriate writ,order or direction for quashing the order dated 31.10.2006 passed by Divisional-Commissioner,Santhal Pargana-Dumka in Revenue Misc. Revision No. 67 of 2004-05 passed in Revenue Misc. Appeal No. 61 of 2004-05 passed by Deputy Commissioner-Deoghar against the order dated 13.8.2004 passed by Sub-Divisional Officer,Deoghar, evicting the petitioners under Section-42 of the Santhal Pargana Tenancy(Supplementary Provision)Act,1949 on the basis of petition filed by rsp-Lilawati Devi,from mauza-Pachaiya Kothi, Thana-Deoghar, Plot No. 922, area 2.70 acres in which petitioners have constructed their house and thus on the basis of application filed by Lilawati Devi under Section 42 of the Santhal pargana Tenancy(Supplementary Provision)Act,1949, the Courts below wrongly passed the order of eviction and pursuant thereto the Sub-Divisional Officer,Deoghar has issued eviction warrant on 13.2.2007 directing the petitioners to remove the same within a fortnight without considering the fact that earlier husband of the Lilawati Devi namely,Maru Mahto had filed Title Suit No. 33 of 1967 in the court of Shri J.P.Sharma,Deputy Collector, Deoghar with regard to Plot No. 922, Area-2.70 decimals of Mauza-Pachaiya Kothi for declaration of title and recovery of possession for the same against Raghu Mahato and Khusi Mahato, ancestor of the petitioners, which was ultimately dismissed in terms of compromise dated 10.1.1968 admitting the land in favour of the ancestor of the petitioner and thus again after 33 years Lilawati Devi filed a petition under Section 42 of the S.P.T.Act, suppressing her inter-se relationships with the petitioner and without considering, the Courts below, have passed the order of eviction of the petitioners and thus eviction warrant has been issued on 13.2.2007 by the Sub-Divisional Officer-Deoghar. 2. The facts,in brief, are set out as under: The petitioners are legal heir and successor of Raghu Mahato who was legal heir and successor of one of the son of Horil Mahato namely Govind Mahto, whreas private respondent, Lilawati Devi is widow of Maru Mahato, the grand son of Kanhaiya Mahato, i.e. brother of Govind Mahato. It appears that that in the year 1967a Title Suit No. 33 of 1967 was filed by Maru mahato for declaration of title and recovery of possession, which ended in compromise in terms of order dated 10.1.1968. It appears that that in the year 1967a Title Suit No. 33 of 1967 was filed by Maru mahato for declaration of title and recovery of possession, which ended in compromise in terms of order dated 10.1.1968. The private respondent Lilawati Devi initiated a proceeding in the year 1988 which was dropped vide order dated 25.4.1988 by Sub-Divisional Magistrate, Deoghar.The petitioners are possessing the land of Mauza-Pachiya Kothi,Plot No. 922, Area-2.70 acres since year 1936 and have constructed a residential house over the same in which the family of the petitioners are residing and the same was admitted by Maru Mahato, husband of private respondent Lilawati Devi in Title Suit No. 33 of 1967 which ended in compromise and thus the petitioners are residing over the plot which was initially recorded in the name of Horil Mahato, ancestor of petitioners and private respondent before 1936 and as such eviction of the petitioners cannot be passed under Section 20 or 42 of the Santhal Pargana Tenancy Act (in short S.P.T. Act).The private respondent Lilawati Devi filed a petition of eviction of the petitioners from the land in question vide Revenue Misc. Case No. 53 of 2001-02 before the Court of Sub-Divisional officer, Deoghar (in short S.D.O.,Deoghar) for eviction of the petitioners under Section 42 of the S.P.T.Act. The petitioners also filed their show cause stating therein that they are in possession of the land since 1936, after the last survey settlement, as parties have common ancestor and after spending huge money, they have developed the land and also constructed house and the matter was compromised in Title Suit No. 33 of 1967 and thereafter a proceeding was initiated vide Misc. Case No. 87 of 1988 which was dropped and thus, the possession of the petitioners are known to the private respondent Lilawati Devi and without mentioning the date, time regarding illegal possession of the petitioners the private respondent Lilawati Devi filed application under Section 42 of the S.P.T. Act which is not applicable in the facts and circumstances of the case. The learned S.D.O.,Deoghar without considering the fact of the case on the basis of the report submitted by Circle Officer, Deoghar passed order dated 13.8.2004 under Section 42 of the S.P.T. Act . The petitioners being constrained preferred a Revenue Misc. The learned S.D.O.,Deoghar without considering the fact of the case on the basis of the report submitted by Circle Officer, Deoghar passed order dated 13.8.2004 under Section 42 of the S.P.T. Act . The petitioners being constrained preferred a Revenue Misc. Appeal No. 61 of 2001 before the Court of learned Deputy Commissioner, Deoghar challenging the order passed by the S.D.O., Deoghar and learned Deputy Commissioner affirmed the order of S.D.O. Deoghar vide its order dated 10.3.2005. A revision was filed before the Court of Divisional Commissioner, Dumka challenging the aforesaid order and the learned Divisional Commissioner passed the order of eviction and dismissed the Revenue Misc. Revision vide its order dated 31.10.2006 and thereafter the S.D.O. Vide its order dated 13.2.2007 passed the order of eviction by issuing an eviction warrant and the same are the subject matter of the challenge in this writ petition. 3. The main contention raised by the learned counsel for the petitioners is that Section 42 of the Act is not maintainable for ejectment as they were not trespassers instead they were in possession of the land in question for over 12 years prior to 1949. It has further been contended that the compromise entered between the ancestor of the husband of the private respondent in Title Suit No. 33 of 1967 was not even considered and thus, the impugned orders passed by the authorities below were illegal and unsustainable in the eyes of law. It has further been contended that the order of ejectment under Section 42 is even otherwise impermissible since they belong to the same family having common ancestor and are not outsiders. 4. The learned counsel for the respondents submits that the writ petitioners have not come to the court with clean hands and they have suppressed materials facts and thus, it deserves to be dismissed. It is submitted that the Title Suit No. 33 of 1967 followed by compromise entered into was collusive and it has no value in the eyes of law. It has further been contended that Plot No. 922 stood recorded in the name of Kanhai Mahto,the grand father-in-law of Lilavati Devi and the land being Raiyati was not transferable and the claim of the petitioner on the basis of Kurfa document without producing any chit of documentary evidence is on the face of it illegal and unsustainable. It has further been contended that Plot No. 922 stood recorded in the name of Kanhai Mahto,the grand father-in-law of Lilavati Devi and the land being Raiyati was not transferable and the claim of the petitioner on the basis of Kurfa document without producing any chit of documentary evidence is on the face of it illegal and unsustainable. It has further been contended that there was no legal possession for the land in question nor was it established by the petitioners that the alleged possession of the writ petitioners was for 12 years before S.P.T. Act 1949 came into effect. In this regard he has also referred to and relied upon AIR 1973 Patna 1 and 1985 PLJR 753 that a person cannot acquire a title by adverse possession in a non transferable Raiyati Land. 5. I have considered the rival submission and pleadings. Section 42 of S.P.T. Act confers very wide power and scope for the Deputy Commissioner, to evict any unauthorized person who was in possession of agricultural land in contravention to the provision of Section 20 of S.P.T. Act and in the instant case it has been rightly invoked by passing order of eviction by S.D.O. based on the facts and findings in the summary proceedings. 6. After the preparation of the records of rights were completed in the District of Santhal Pargana by the Santhal Pargana Settlement (Amendment) Regulations 1908 (Regulation-III) of 1908 Section 27 was incorporated in Regulation-III 1872 prohibiting transfer by the Raiyat of their Raiyati holdings in any form of transfer by way of sale, gift, mortgage, lease or any other contract or agreement except such transfer which was recorded in the records of rights. 7. Thereafter the Santhal Pargana Tenancy(Supplementary provisions) Act 1949, came into force on the 1st of November, 1949. This Act is supplemental to Regulation III of 1872 and has repealed some of its provisions and certain other Regulations with which we are not concerned. It has repealed Section 27 of the Regulation (already quoted above) and in lieu thereof enacted Section 20, which reads as under: “20. Transfer of Raiyat's rights: 1. This Act is supplemental to Regulation III of 1872 and has repealed some of its provisions and certain other Regulations with which we are not concerned. It has repealed Section 27 of the Regulation (already quoted above) and in lieu thereof enacted Section 20, which reads as under: “20. Transfer of Raiyat's rights: 1. No transfer by a Raiyat of his right in his holding or any portion therof, by sale, gift, mortgage, will, lease or any other contract or agreement, express or implied, shall be valid, unless the right to transfer has been recorded in the record of rights,and then only to the extent to which such right is so recorded. Provided that a lease of Raiyati land in any Subdivision for the purpose of the establishment or continuance of an excise shop thereon may be validly granted or renewed by a Raiyat, for a period not exceeding one year, with the previous written permission of the Deputy Commissioner: Provided further that where gifts by a recorded Santal Raiyat to a sister and daughter are permissible under the Santal law,such Raiyat may, with the previous written permission of the Deputy Commissioner,validly make such a gift; Provided also that an aboriginal Raiyat may, with the previous written permission of the Deputy Commissioner make a grant in respect of his lands not exceeding one half of the area of his holding to his widowed mother or to his wife for her maintenance after his death. (2) Notwithstanding anything to the contrary contained in the record of rights no right of an aboriginal Raiyat in his holding or any portion thereof which is transferable shall be transferred in any manner to any one but a bonafide cultivating aboriginal Raiyat of the pargana or Taluk or Tappa in which the holding is situated; Provided that nothing in this Subsection shall apply to a transfer made by an aboriginal Raiyat of his right in his holding or portion thereof in favour of his Gardi Jamai or Gharjamai; (3) No transfer in contravention of Sub-section (1) or (2) shall be registered or shall be in any way recognised as valid by any court, whether in exercise of civil, criminal or revenue jurisdiction. (4) No decree or order shall be passed by any Court or officer for the sale of the right of a Raiyat in his holding or any portion thereof, nor shall any such right be sold in execution of any decree or order, unless the right of the Raiyat to transfer, has been recorded in the record of rights or provided in this Act and then only to the extent to which such right is so recorded or provided. (5) If at any time it comes to the notice of the Deputy Commissioner that a transfer in contravention of Sub-section (1) or (2) has taken place he may in his discretion evict the transferee and either restore the transferred land to the Raiyat or any heirs of of the Raiyat who has transferred it,or resettled the land with another Raiyat according to the village custom for the disposal of an abandoned holding: Provided that the transferee whom it is proposed to evict shall be given an opportunity of showing cause against the order of eviction.” Sub-section (5) of this Section has been substituted by the Bihar Scheduled Areas Regulations,1969 (Bihar Regulation I of 1969), by a new Sub-section(5), and the scope of the new Sub-section is confined to cases of transfer in contravention of Subsection (1) and (2) of Section 20 by members of the Scheduled Tribes only, as specified in Part III of the Constitution, and,not to Raiyats generally,and the new Sub-section will be referred to while considering the question whether title by adverse possession could be acquired under the Act. 8. Section 20(1) of the Act prohibits transfer by a Raiyat of his holding, except in cases where the right to transfer was recorded in the record of rights and that also only to the extent it was so recorded. Section 20(2) contained further restriction in case of ab-original Raiyats, restricting their right of transfer in case of transferable holdings only to bona-fide cultivating ab-original Raiyat of the Pargana of Taluk or Tappa, in which the land is situated. Section 42 and also Sub-section (5) of Section 20(old) authorized the Deputy Commissioner to evict persons having acquired land in contravention of the above provisions. Section 42 and also Sub-section (5) of Section 20(old) authorized the Deputy Commissioner to evict persons having acquired land in contravention of the above provisions. The scope of the amended Sub-Section(5) of Section 20 is confined to cases of contravention of Sub-sections (1) and (2) of that Section and fraudulent transfer by scheduled tribes only since the 8th February, 1969. 9. The Hon'ble Supreme Court in AIR 1969 SC 204 also considered AIR 1963 SC 605 and held that the prohibition against the transfer of Raiyati land situated in Santhal Pargana has its root in the peculiar way of life of Santhal villages which favour the emergence of powerful village community with its special rights over all the land of the village. It also held that once the land was allowed to lose their Raiyati character which was certain that village may find, in the course of a few years the total stock of land available for settlement to residents, Raiyats dwindling before they arise. it was this state of thing that the alienation of Raiyati holding in any form was interdicted by the Government orders since 1887. These orders had the effect of checking the practice of open transfers. But transfers in disguised form and collusive manner continue which will be clear from the notice of the Mac parson to the settlement report of the Santhal Pargana wherein he warns any disguised transfer. His note was accepted by the Government and the result was the amendment of the Regulation by which initially Section 27 was inducted followed by Section 20(1) of the Santhal Pargana Act, 1949. Thus, it will be evident that even the collusive compromise in a title suit to get an illegal transfer regularized by Court of law was in contravention to Section 20 of the Santhal Pargana Tenancy(Supplementary Provisions) Act, 1949. 10. In the instant case, the petitioners have not even produced a chit of paper or any documentary evidence to prove their possession over the land in question for 12 years prior to coming into force the 1949 Act and thus they were liable to be ejected under the provisions of Section 42 of the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949. Coming to the question whether title by adverse possession can be acquired after the 1949 Act came into operation, it will be relevant to refer Section 69 of the Act which reads as under : “69. Notwithstanding anything contained in any law or anything having the force of law in the Santhal Parganas, no right shall accrue to any person in- (a) land held or acquired in contravention of the provisions of Section 20, or, (b) land acquired under the Land Acquisition Act, 1894, for the Government or for any local authority or for railway company, while such land remains the property of the Government or of any local authority or of a railway company, or, (c ) land recorded or demarcated as belonging to the Government or to a local authority which is used for any public works, such as a road,,canal or embankment, or is required for the repair of maintenance of the same while such land continues to be so used or required, or, (d) a vacant holding retained by a village headman, Mul Raiyat and members of their family, or a landlord, or, (e) village Headman's official holding, grazing land, Jaherthan and burning and burial grounds.” 11. Analysing the aforesaid provisions, it is manifest that Section 69(a) has made it clear beyond doubt that not withstanding anything contained in any law or anything having the force of law in the Santal Parganas, no right shall accrue to any person in any land held or acquired in contravention of the provisions of Section 20 of the Act. Section 20 has already been quoted and it prohibits transfer, settlement or lease in any manner, unless the right to transfer is recorded in the record of rights, in respect of any Raiyati holding. Therefore, although the law of limitation has been made applicable by Section 3 of Regulation III of 1872, which provision has not been repealed by the Act, still Section 69 makes it clear beyond any shadow of doubt that no right will be acquired or accrue in contravention of Section 20 of the Act. The provision in Section 64 that there will be no period of limitation for filing an application under Section 42 of the Act also seems to achieve the same object. The provision in Section 64 that there will be no period of limitation for filing an application under Section 42 of the Act also seems to achieve the same object. Therefore, the application of acquisition of title by verse possession under Section 28, read with Articles 142 and 144, of the Limitation Act is explicitly excluded in the Act. Contravention of provisionsof Subsections(1) and (2) of Section 20 will be a continuing wrong because of Section 69. Similar bar against accrual of any right in case of lands mentioned in Clauses (b), (c ), (d) and (e) of Section 69, as quoted above, clearly points out that no right by adverse possession could be acquired by encroachment also on the lands mentioned. The bar contained in Section 69 (a) is comprehensive enough to include cases of encroachment as well as, a case of encroachment could not be put in higher pedestal than a case of an invalid transfer, the idea behind Section 69 being to prohibit accrual of adverse possession in those lands in Santhal Parganas. 12. In any event, the fact remains that all the three authorities below have given a concurrent findings against the petitioners and it has been time and again held that the High Court in its writ jurisdiction should not interfere against the findings arrived at by the authorities below in a summary proceedings unless there is a statutory violation. It is further an admitted fact that before initiating action a report was also called for by the Circle Officer based on which it was found that the petitioners had concealed the material facts about the earlier proceedings and there was not a single piece of documentary evidence produced by them to support the contention of possession since 1936 over the land in question and Section 20(3), (4) and (5) of the Santhal Pargana Tenancy Act clearly contemplates that in absence of any documentary evidence produced the possession cannot be legal. 13. Considering the aforesaid facts and circumstances of the case, I find no merit in the writ petition and the same is accordingly dismissed without any order as to cost.