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2010 DIGILAW 672 (JHR)

Andu Larwey v. State of Jharkhand

2010-06-25

D.G.R.PATNAIK

body2010
Judgment D.G.R.Patnaik, J. Heard counsel for the parties. 2. The petitioners in this writ application have prayed for quashing the order dated 22.01.2004 (Annexure3)passed by the Commissioner, Santhal Pargana Division, Dumka in R.M.A. No. 24/198485 whereby the order dated 28.03.1983 (annexure2) passed by the Settlement officer, Dumka in R.E. Case No. 24/198283 has been set aside and the petitioners have been directed to be evicted from the lands as well as his house. 3. The challenge to the impugned order of the Commissioner has been made on the ground that the same has been passed without application of judicial mind and is against the ratio decided in the Full Bench Judgment of the Patna High Court in the case of Bhauri Lal Jain and another Vs. Sub Divisional Officer, Jamtara and Others AIR 1973 Patna 1 and in the another judgment of the Patna High Court in the case of Shaikh Bande Vs. Jethua Pahan and Others AIR 1975 Patna 113. 4. The petitioners' case in brief is as follows : The lands comprising a total area of 9 Bighas, 14 Kathas and 1 Dhur under Plot No. 1129, referring to jamabandi No. 93 situated at Mauza bhalki P.S. Jarmundi in the district of Dumka, stood recorded in the Ganzer's Settlement in the name of Most. Murti widow of Bhagan Singh, together with the names of W.P.(C) No. 1752 of 2004 Mithu Rai and Titu Rai, both sons of Bandhu Rai and most. Budhani Kuer widow of Keshav Rai. After the Ganzer's Statement, Most. Murti and Most. Budhani died. Later, the surviving recorded tenant also died issueless leaving behind him his widow Most. Kurthi. The surviving recorded tenant namely Titu Rai and Most. Kurthi gave 2 Bighas of land out of Plot No. 1129 to Rashu Larway, grandfather of petitioner No. 1 and executed a Kurfa settlement deed in favour of the said settle way back in 193637. The original Plot No. 1129 wad divided during the recent survey into three subplots namely Plot Nos. 1367, 1368 and 1369. These three plots comprised of 2 Bighas of land which was settled in the name of the grandfather of the petitioner No. 1. The settle constructed his residential house on the land under Plot Nos. 1367 and 1368 and the vacant land in Plot No. 1369 was used by him as Bari land and started cultivating the same. These three plots comprised of 2 Bighas of land which was settled in the name of the grandfather of the petitioner No. 1. The settle constructed his residential house on the land under Plot Nos. 1367 and 1368 and the vacant land in Plot No. 1369 was used by him as Bari land and started cultivating the same. It was during the survey settlement of the year 198283, that the possession of the petitioners over the abovementioned 2 Bighas of land was declared as unauthorized and illegal. A show cause notice was issued to the petitioners to justify their possession and right over the lands in question and the proceeding vide R.E. Case No. 24/198283 was initiated. Though the successors of the original land holders were also noticed by the settlement authorities, but none of them appeared in the proceeding to controvert the claim of the petitioners over the said land. The petitioners appeared in the aforementioned proceeding and filed documents in support of their claim of right over the land, including the Kurfa Settlement deed of 193637. They had also explained that in 1964 a title suit was instituted in which the recorded tenants had though appeared but had admitted the case of the petitioners. 1. In the proceeding vide R.E. Case No. 24/198283, the Settlement Officer, by his order dated 07.08.1982,directed the Assistant Settlement Officer to record the statements of those persons who were in occupation of the lands adjacent to the three plots and also of the aged persons of the village to ascertain the length of possession of the petitioners over the said land. After conducting the enquiry, the Assistant Settlement Officer submitted W.P.(C) No. 1752 of 2004 his report dated 15.09.1982 (Annexure1). The report confirmed that according to the statements of the independent witnesses and the aged persons of the village, the petitioners were found to be in possession of the lands in question. The statement of the jamabandi Raiyat Tikri Rai was also recorded and as per his statement, the jamabandi Raiyat did not advance any claim over the house of the petitioners though he advanced his claim on the vacant land which was used by the petitioners for cultivation. 6. The statement of the jamabandi Raiyat Tikri Rai was also recorded and as per his statement, the jamabandi Raiyat did not advance any claim over the house of the petitioners though he advanced his claim on the vacant land which was used by the petitioners for cultivation. 6. On the basis of the Full Bench judgment of the Patna High Court in the case of Shaikh Bande (Supra), the Settlement Officer by his order dated 28.03.1983, ordered for the eviction of the petitioners from the vacant lands while allowing the petitioners to retain possession of the house which was constructed within the aforementioned three plots. 7. Though the Jamabandi Raiyat did not prefer any appeal against the order of the Settlement Officer, the petitioners being aggrieved by the order of their eviction from the part of the lands which was in their possession, preferred an appeal against the order of the Settlement Officer before the Commissioner, Santhal Pargana Division, Dumka vide R.M.A. Case No. 24/8485. By the impugned order, the Commissioner, while upholding the order of the Settlement Officer with regard to the eviction of the petitioners from the vacant lands, had also directed for the eviction of the petitioners from the remaining two plot Nos. 1367 and 1368. 8. Assailing the impugned order, learned counsel for the petitioners submits that the law which is applicable in respect of the lands in question is laid down under the provisions of Section 27 of the Santhal Parganas Settlement Regulation III of 1872 which is totally distinct and separate from any corresponding provisions under the C.N.T. Act. Learned counsel argues that though the provisions of Section 27 of the Santhal Parganas Settlement Regulation III of 1872 was repealed by the Santhal Parganas Tenancy Act, 1949 which came into force on 01.11.1949 but the rights which had accrued to the occupants of the lands prior to the date of repealing of the provisions of Section 27 of the Santhal Parganas Settlement Regulation III of 1872, could not be abrogated or denied. Learned counsel argues that as per the petitioners' consistent case which was supported by the statements of the occupants of the lands adjacent to the disputed lands and the elders of the village, the petitioners ancestors had come into possession of the 2 Bighas of land of old plot No. 1129 corresponding to the W.P.(C) No. 1752 of 2004 new subplot Nos. 1367, 1368 and 1369, ever since the date of Kurfa Settlement made in their favour in the year 193637. This fact has not been denied or disputed even by the recorded Raiyat. Thus, according to learned counsel, the possession of the petitioners since the time of their ancestors is calculated from the date of Kurfa Settlement in 193637 and since then, by 1949 when the Santhal Parganas Tenancy Act came into force, the petitioners had completed 12 years continuous possession over the land in question and thereby, as per the provisions of Section 27(1) of the Santhal Parganas Settlement Regulation III of 1872, had perfected their title by prescription. Learned counsel explains further that the fact that the petitioners' ancestors had come into possession over the disputed land ever since 193637, has also been admitted by the recorded Raiyat in the written statement filed by him in the Title Suit No. 47/1964. Learned counsel argues further that the prohibition under Section 42 of the Santhal Parganas Tenency Act would be operative prospectively and would not denude the petitioners of their right which they had perfected under the provisions of Section 27 of the Santhal Parganas Settlement Regulation III of 1872. To buttress his arguments, learned counsel refers to and relies upon the Full Bench Judgment of the Patna High Court in the case of Bhauri Lal Jain (Supra). 9. Learned counsel argues further that while passing the impugned order for eviction of the petitioners, the Settlement Officer has wrongly applied the ratio decided in the Full Bench judgment of the Patna High Court in the case of Shaikh Bande (Supra) as because the ratio decided in Shaikh Bande's case applies in the context of the C.N.T. Act which is quite distinct and separate from the law relating to the Santhal Parganas Tenancy Act. 1. Per contra, the stand taken by the respondents, as appearing in the counter affidavit filed on their behalf, is that the land in question is not transferable since it is governed by the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949. The petitioners had failed to prove that they were actually in possession over the land in question since 1935 and therefore the order of their eviction has rightly been passed by the Commissioner. The petitioners had failed to prove that they were actually in possession over the land in question since 1935 and therefore the order of their eviction has rightly been passed by the Commissioner. Learned counsel for the respondent argues that the petitioners had failed to produce any document before the Commissioner to establish that they were actually in possession of the lands since 1935. Furthermore, the purported Kurfa Settlement being a non registered document, cannot be deemed to be a reliable genuine paper. As regards the documents pertaining to the Title suit No. 47/1964, learned counsel argues that W.P.(C) No. 1752 of 2004 such documents have been created with intent to commit fraud and would not confer any right and title over the lands in question in favour of the petitioners. Learned counsel explains further that the 2 Bighas of the disputed lands of old plot No. 1129 was subdivided in plot Nos. 1367 and 1368 in the recent Survey Settlement operations and a jamabandi was opened in the name of the petitioners in respect of the land in the aforesaid 2 plots in which the residential house of the petitioners is situated. As regards plot No. 1369, the same was recorded in the name of the heirs of the original recorded jamabandi Raiyat. Learned counsel argues further that under Section 42 of the Santhal Parganas Tenancy Act, the Deputy Commissioner has the power either on his own motion or on application made to him, to pass an order for ejectment of any person who has encroached upon or reclaimed or acquired or came in possession of agricultural land in contravention of the provisions of the Act of any law having the force of law in the Santhal Parganas Tenancy Act. 11. From the rival submissions the admitted facts which emerge are as follows : (i) In the proceeding before the Settlement Officer, on being called upon, the Assistant Settlement Officer submitted a report after conducting an enquiry and after recording the statements of the occupants of the lands adjacent to the disputed plots and also of the heirs of the recorded tenant. The report confirmed that even as per the admission of the heirs of the recorded Raiyat, the ancestors of the petitioners had taken the settlement from the original recorded tenant and had come into possession of the lands in 193637. The report confirmed that even as per the admission of the heirs of the recorded Raiyat, the ancestors of the petitioners had taken the settlement from the original recorded tenant and had come into possession of the lands in 193637. This fact was supplemented by the petitioners who had produced rent receipt of the years 1937, 1939, 1940 and 1942. (ii) The fact that the ancestors of the petitioners had taken possession of the land in question on the basis of the Kurfa Settlement was also admitted by the surviving heirs of the recorded tenant in his written statement filed in the Title Suit No. 47/1964. Even if the documents pertaining to the Title Suit may be questioned as collusive documents, but the fact remains that the surviving heirs of the original recorded tenant have acknowledged that the petitioners had come in possession of the lands on which the ancestors of the petitioners had constructed the house. (iii) Admittedly, it was after considering these aspects of the evidences W.P.(C) No. 1752 of 2004 brought on record, the Settlement Officer being satisfied that the petitioners, ever since the time of their ancestors, had come in occupation and possession of the land over which they had constructed the house, since 193637. Yet, even after accepting the aforesaid facts, the Settlement Officer has relied on the Full Bench Judgment of the Patna High Court in the case of Shaikh Bande (Supra) and ordered for the petitioners' eviction from the land under Plot No. 1369 by applying the ratio which was decided in the context of the provisions of the C.N.T. Act and without making any reference whatsoever to the law in relation to the Santhal Parganas Tenancy Act. 12. As pointed out by the learned counsel for the petitioners, the law within the Santhal Pargana, is governed by the Santhal Parganas Settlement Regulation III of 1872 which had continued to remain in force till the enactment of the Santhal Parganas Tenancy Act, 1949. 13. 12. As pointed out by the learned counsel for the petitioners, the law within the Santhal Pargana, is governed by the Santhal Parganas Settlement Regulation III of 1872 which had continued to remain in force till the enactment of the Santhal Parganas Tenancy Act, 1949. 13. Though any transfer of land in contravention of Sub Section 1 of Section 27 of the Regulation III of 1872is prohibited and the transferee may be evicted from such lands by the powers vested in the Collector, but such exercise of powers under Sub Section 3 of Section 27 of the Regulation III of 1872 is restricted and would not apply to a person who has remained in continuous cultivating possession of the lands for 12 years and more. 14. Thus, the provisions of Section 27 of the Regulation III of 1872 enables the occupant to claim his right and title over the land in his occupation by prescription on the basis of his claim that he had remained in possession over the lands for 12 years and above. There is no corresponding similar provisions under the C.N.T. Act. 15. In the present case, since it is the consistent pleading of the petitioners that the 2 Bighas of land under old Plot No. 1129 was settled in favour of the ancestors of the petitioners by the original recorded tenant by virtue of the Kurfa Settlement and since the date of settlement, the ancestors of the petitioners had come into possession of the entire 2 Bighas of land and as per the report submitted by the Assistant Settlement Officer and the order of the Settlement Officer, the evidences collected on record also supports the claim of the petitioners, it was incumbent upon the Settlement Officer as also upon the Commissioner to record a definite finding on the petitioners claim of adverse possession, before ordering for the eviction of the petitioners from the disputed W.P.(C) No. 1752 of 2004 lands. This view finds support from the Full Bench Judgment of the Patna High Court in the case of Bhauri Lal (Supra). 16. This view finds support from the Full Bench Judgment of the Patna High Court in the case of Bhauri Lal (Supra). 16. From the perusal of the impugned orders, both of the Settlement Officer and that of the Commissioner, it appears that no definite finding has been recorded on the issue as to whether the petitioners had perfected their title over the lands in question for more than 12 years prior to the date of repealing of the provisions of Section 27 of the Regulation III of 1872. 18. Considering the above facts and circumstances, I find merit in this application. Accordingly this application is allowed. The impugned order of the Commissioner as also that of the Settlement Officer are hereby set aside. The matter is however remanded back to the Settlement Officer to consider the petitioners' claim afresh and record a definite finding in respect of the petitioners' claim of adverse possession.