Research › Search › Judgment

Jharkhand High Court · body

2010 DIGILAW 477 (JHR)

Baldeo Raut v. State of Jharkhand

2010-04-16

D.G.R.PATNAIK

body2010
JUDGMENT : D.G.R. Patnaik, J.-Heard counsel for the parties. 2. The petitioner in this writ application has prayed for quashing the order dated 24.2.2004 passed by the Divisional Commissioner, S.P. Division, Dumka in R.M.A. No. 375/1986-87 whereby after disagreeing with the findings of Settlement Officer in his order dated 18.12.1986 passed in M.P. Case No. 43/1983, to the effect that the land covered by Jamabandi No. 13 of Mourya Sahjana recorded in the name of two widows was in fact Fauti and the appellants/private respondents herein, were not the heirs of the recorded tenants of the two widows, the Divisional Commissioner had allowed the appeal of the private respondents. . 3. The admitted facts of the case is as follows: The lands covered by Jamabandi No. 13 of Mourya Sahajana was recorded during the last survey settlement operation in the names of two widows namely Most. Mandodri Devi widow of Sitabi Ojha and Most. Nunawati Devi widow of Loknath Ojha. The present petitioner alongwith other 16 Anna Raiyats' of Mouza-Sahajana within P.S. Ramgarh filed a Miscellaneous Petition vide M.P. Case No. 43/1983 claiming settlement of the land in his name' on the ground that erstwhile recorded tenants namely the two widows had died issueless and after their death, the land had become Fauti and the petitioner has been in cultivating possession of the land ever since after the death of the recorded tenants. In the settlement case, the 'respondents had appeared and had offered their contest claiming that they were the reversioners and had right to the properties left behind by the recorded tenants namely the two widows and upon such claim, had asserted their legal right and title over the land in question while• denying and disputing the petitioner's claim that the land was Fauti. 4. The claim of the private respondents, as it .appears from their pleadings was that they are the agnates of the husbands of the two widows and therefore they had acquired right over the land pertaining to Jamabandi No. 1 and Jamabandi No. 13 of Mouza-Sahajana by reversion, after the death of the two widows. 4. The claim of the private respondents, as it .appears from their pleadings was that they are the agnates of the husbands of the two widows and therefore they had acquired right over the land pertaining to Jamabandi No. 1 and Jamabandi No. 13 of Mouza-Sahajana by reversion, after the death of the two widows. In support of their claim, the private respondents had further referred to a Fauti Settlement Case No. 38/1947-48 which was initiated at the instance of' the village Pradhan of Mouza-Nawachak after the death of the two widows, praying for declaring the land of Jamabandi No. 23 of Mouza-Nawachak as Fauti In the said proceeding, an objection was raised by one Churaman Ojha who was the grandfather of the respondents and being satisfied with the objections raised, the Sub Divisional Officer while deciding the settlement .case by' his order dated 22.10.1948, did not declare the land of Mouza Nawachak as Fauti 5. The Settlement Officer in M.P. Case No. 43/1983 rejected the claim of relationship as advanced by the private' respondents by recording a finding that the respondents were not in possession of the lands in question and declared the lands as Fauti. 6. The appeal preferred by the private respondents against the order of the Settlement Officer, was'- allowed by the Appellate Authority namely the Commissioner, by his order impugned, setting aside the order of the Settlement Officer by recording a finding that Naresh Ojha, the ancestor of the private respondents was the full brother of Bishambhar Ojha, father-in-law of the two widows and thereby has drawn the inference that the private respondents were the agnates of the husbands of the two widows and as such had a right to claim title over the lands in question. The Commissioner had also relied upon the receipt of the year 1967 produced by the private respondents/appellants. 7. Learned counsel for the petitioner has assailed the findings of the Commissioner as contained in the impugn order on the following grounds:. (i) The finding that Naresh Ojha, the ancestor of the private respondents was the full brother of Bishambhar Ojha, father-in-law of the two widows, was based entirely on assumptions and without conducting an enquiry and without a reasonable basis. (i) The finding that Naresh Ojha, the ancestor of the private respondents was the full brother of Bishambhar Ojha, father-in-law of the two widows, was based entirely on assumptions and without conducting an enquiry and without a reasonable basis. (ii) The Commissioner had also failed to consider that the private respondents had not produced any document of Settlement Purcha of MC Pherson Settlement to prove that Naresh Ojha was the son of Keshav Ojha, the purported full brother of Bishambhar Ojha (father-in-law of the two widows). (iii) The Commissioner had failed to consider the fact that the- name of Naresh Ojha, from whom the private respondents claim inheritance, was never recorded in respect of any of the lands of the three Mouzas namely Sahajana, Nawachak and Sukhjora. (iv) The Commissioner had erred in failing to consider that the findings, recorded by the Settlement Officer was only after conducting a detailed enquiry which was conducted by the Charge Officer and on the basis of the report submitted by the Charge Officer dated 23.7.1985. (v) The Commissioner had erred in overlooking the essential fact that the private respondents are neither residents nor Jamabandi Raiyats of Mouza Sahajana as observed in the findings of the Settlement Officer. (vi) The Commissioner had also failed to consider that though the private respondents have advanced their right and title over the lands in question, they have not preferred any declaratory suit before the Settlement Officer who• is also vested with the powers of a Civil Court as per the Government Notification pertaining to the district' of Dumka, even though the facts, as per the findings of the Settlement Officer, confirm that it is the petitioner who was found to be in possession of the lands in question. 8. Contesting the grounds advanced by the petitioner, the respondents have claimed that" there is no illegality, irregularity, perversity or any jurisdictional error in the impugned order (Annexure-1) passed by the Appellate Authority. The contention of the private respondents is that the land pertaining to Jamabandi No.1, stood recorded in the name of Ajablal Ojha, son of Banna Ojha in the Gantzer's Settlement. The contention of the private respondents is that the land pertaining to Jamabandi No.1, stood recorded in the name of Ajablal Ojha, son of Banna Ojha in the Gantzer's Settlement. Asserting their claim on the genealogical table which was produced in the earlier settlement case by the private respondents, it is contended 'that the lands pertaining to Jamabandi No. 13 of the Gantzer's Settlement, which corresponds to Jamabandi No. 1 of McPherson's Settlement, was recorded in the name of Sitabi Ojha and Loknath Ojha, both sons of " Bishambhar Ojha, who were the husbands of the two widows namely Mandodri Devi and Nanabati Devi respectively. The private respondents happen to be the descendants of Naresh Ojha, the full brother of Bishambhar Ojha. It is claimed the after the death of their husbands, the land were recorded in the names' of the two widows but after the death of the two widows who died issueless, the private respondents being" reversioners, had acquired right and title over the lands and therefore the lands could not have been declared as Fauti by the Settlement Officer. 9. From the rival submission~ the facts which emerge are that both parties have advanced their claim of right, title and interest over the lands under reference. While the petitioner has claimed his title\ on the basis of his claim that he is a local resident of the village and has been coming in cultivating possession of the lands since after the death of the earlier tenants namely the two widows, the private respondents, on the other hand, have advanced a claim of right on the ground that they have acquired title by reversion. While the private respondents have claimed their right on the basis of genealogical table, the petitioner has disputed the genuineness of the genealogy. It is apparent therefore that the controversy revolves around disputed question of facts. The "essential issue for adjudication is whether the private respondents are the " legal heirs of the recorded tenants namely the two widows and it is on the basis of a definite finding on this issue that the" rival claims of right, title and interest as advanced by the disputing parties, can be resolved. 10. The "essential issue for adjudication is whether the private respondents are the " legal heirs of the recorded tenants namely the two widows and it is on the basis of a definite finding on this issue that the" rival claims of right, title and interest as advanced by the disputing parties, can be resolved. 10. From the perusal of the impugned order of the Appellate Authority it appears that the Appellate Authority has placed implicit reliance on the genealogical table as produced by the private respondents and upon their claim that they are the agnates of the husbands of the two widows. No discussion appears to have been made in respect of the findings recorded by the Settlement Officer pursuant to an enquiry conducted by him, that the private respondents were not found in possession of the lands in question. As it appears, the findings of the Appellate Authority as recorded in the impugned order, is based primarily on the assumption of the genealogical table to be genuine and the inferences have been drawn accordingly. In such view of the matter, I find force in the argument advanced by the learned counsel for the petitioner that the finding recorded by the Appellate Authority in the impugned order are perverse and that order has been passed without objective and proper appreciation of the materials placed on record. The impugned order of the Appellate Authority is therefore quashed. It would therefore be appropriate' for the parties to refer their dispute relating to their rival claims 'of right, title and interest over the lands in question, to the Civil Court of competent jurisdiction. 11. In the light of the above facts and circumstances, this application is disposed of with a liberty to the private respondents to approach the appropriate forum vested with powers of Civil Court Of competent jurisdiction, for a declaration of their right, title and interest over the lands in question, within two months from the date of this order. With these observations, this writ application is disposed of.