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2010 DIGILAW 767 (JHR)

Md. Safique v. State of Jharkhand

2010-07-31

D.G.R.PATNAIK

body2010
Judgment D.G.R. Patnaik, J.-Despite service of notices upon Respondent Nos. 6 to 11, they have neither appeared in person nor through lawyer. Counsel for the Respondent Nos. 1 to 5 is present. This case is therefore taken up for hearing on the basis of the submissions made by the counsel for the petitioners and counsel for the Respondent Nos. 1 to 5. 2. The petitioners in this writ application have challenged the order dated 28.8.1999 passed by the Special Officer, Scheduled Area Regulation, Ranchi (Respondent No.4) in S.A.R. Case No. 129 of 1986-87 of the C.N.T. Act, 1908, whereby and whereunder the restoration of the lands under dispute has been allowed in favour of the private respondent Nos. 6 to 11 under Section 71-A (C.N.T. Act, 1908). Challenge also is to the order dated 3.6.2002 (Annexure-6) passed by the Deputy Commissioner, Ranchi (Respondent No.3) in Case No. 200R-15/1999-2000, whereby the appeal filed by the petitioners against the impugned order of the Special Officer was dismissed. Further, challenge is also to the order dated 26.8.2003 (Annexure-7) passed by the Commissioner, South Chotanagpur Division, Ranchi (Respondent No.2) in S.A.R. Revision No. 97 of 2003, whereby the revision filed against the impugned order of the Deputy Commissioner was dismissed. 3. Facts relevant for the disposal of this case is as follows:- On the basis of a report submitted by the Circle Officer, Town Anchal, Ranchi (Respondent No.5), a proceeding under Section 71-A of the C.N.T. Act, vide S.A.R. No. 129 of 1986-87 was initiated against the Respondent No. 6 in respect of the lands appertaining to Plot No. 759 under Khata No. 34 situated at Hindpiri, Ranchi, admeasuring 33 decimals. An order of eviction was passed in the case, but the same could not be executed, since on visiting the said lands, the petitioners were found in possession of the lands. 4. On being informed about the eviction order passed by the Special Officer, the petitioners filed a writ petition in this Court in C.W.J.C. No. 955 of 1993(R). By order dated 20.1.1994, this Court had directed the Special Officer (Respondent No. 4); to permit the petitioners and the proforma respondent herein, to be added as necessary parties in the proceeding. Pursuant to the order, the petitioners and the proforma respondent were made party in the proceeding which was started afresh. By order dated 20.1.1994, this Court had directed the Special Officer (Respondent No. 4); to permit the petitioners and the proforma respondent herein, to be added as necessary parties in the proceeding. Pursuant to the order, the petitioners and the proforma respondent were made party in the proceeding which was started afresh. The petitioners filed their show cause replies claiming their right, title and interest over the disputed lands. 5. The case of the petitioners, as pleaded, is that the lands in question had originally belonged to the recorded raiyats namely, Somra Oraon and Murla Oraon. The original raiyats had surrendered the lands to the ex-landlord namely, Baralal Kandarp Nath Shahdeo. 6. On 3.12.1938, the ex-landlord took possession of the lands. Much later, on 13.1.1949, he granted chhapparbandi settlement of the lands in favour of one Sheikh Karamat S/o Sheikh Rahim. After the settlement made in his favour, the said settlee was also assessed to chhapparbandi rents by the ex-landlord. Upon vesting of the intermediary rights under the Bihar Land Reforms Act, 1950, the ex-landlord filed a return in compensation Case No. 6/55-56 declaring the name of settlee Sheikh Karamat as a raiyat with chhapparbandi rights over the lands in question. Thereafter, jamabandi was opened in the name of the settlee in respect of the lands and ever since the opening of the jamabandi, the settlee Sheikh Karamat was regularly paying rent to the State Government and after his death, his heirs continued to pay the rent regularly. Further case of the petitioners is that Sheikh Kalim and Sheikh Muslim, who were the surviving legal heirs and representatives of the original settlee, sold the lands to the petitioners and to the proforma respondents through different sale deeds, which were executed and registered in December, 1988 and February, 1989. Ever since after the date of purchase, the petitioners entered into possession over the lands and have constructed houses over the same and have been residing therein alongwith their families publicly to the knowledge of all concerned. In support of their claim of right over the disputed lands, the petitioners had filed the document of surrender, document of settlement, return filed by the ex-landlord upon vesting of intermediaries interest in the State Government, and the sale deeds executed in favour of the petitioners and the proforma respondents. In support of their claim of right over the disputed lands, the petitioners had filed the document of surrender, document of settlement, return filed by the ex-landlord upon vesting of intermediaries interest in the State Government, and the sale deeds executed in favour of the petitioners and the proforma respondents. It needs to be noted here that in the proceedings before the Special Officer, the Respondent Nos. 6 to 11 did not appear or offer contest at any stage of the proceedings. 7. From perusal of the impugned order of the Special Officer, it appears that the claim of the petitioners was dismissed on the ground that the documents which the petitioners had produced in support of their case being unregistered documents and the petitioners having failed to produce the rent receipts issued if any by the ex-landlord in favour of the purported settlee or even issued by the Government in favour of the purported settlee, the said documents were not reliable. It was also observed that as per the report of the Circle Officer, there was no construction in existence on the disputed lands under reference prior to 1969 and the existing structure appears to have been made only after the execution of the sale deed in 1988 in favour of the petitioners. The Special Officer had refused to accept copies of the unregistered surrender deed of 1938 on the ground that the same has not been introduced in accordance with the procedure laid down under the Evidence Act. The Special Officer drew inference that the transfer of the land was obtained by the petitioners in their favour in the year 1988 on the basis of forged documents and in violation of the provisions of Section 46 of the C.N.T. Act and, therefore, directed the eviction of the petitioners from the !ands. 8. The petitioners have assailed the impugned order of the Special Officer, on the ground that the same is totally perverse and without proper appreciation of the evidences on report and by misconvincing the provisions of law both under the Evidence Act as also under the C.N.T. Act. 9. Learned counsel for the petitioners submits that the Special Officer has erred in failing to consider that the original recorded raiyat namely, Somra Oraon and Murla Oraon had voluntarily surrendered the land in favour of the ex-landlord in 3.12.1938. 9. Learned counsel for the petitioners submits that the Special Officer has erred in failing to consider that the original recorded raiyat namely, Somra Oraon and Murla Oraon had voluntarily surrendered the land in favour of the ex-landlord in 3.12.1938. According to the customs prevailing at that point of time, the document of surrender was not required to be registered. The Special Officer had erred in failing to appreciate that the settlement made in favour of the settlee Sheikh Karamat by the ex-landlord by virtue of the Sada Hukumnama and in fact, had conferred a valid right, title and interest in favour of the settlee, who obtained raiyati interest over the land upon transfer of the raiyati possession to the land unto him by the ex-landlord. The rent receipts issued by the landlord and similar rent receipts issued by the State Government after the vesting of the land in the State Government had recognized the vendor of the petitioners as the chapparbandi raiyati with respect to the lands in question and does confirm the fact that after the vesting of the intermediaries interest, the settlee Sheikh Karamat, had perfected his right over the lands. To gain support of his contentions, learned counsel refers to and relies upon a Full Bench Judment of the Patna High Court in the case of Most. Ugni & Anr. vs. Chowa Mahto & Ors. . [AIR 1968 Patna 302] [: 1968 PLJR 3]. Learned counsel adds further that the provisions of Section 68 of the Chotanagpur Tenancy Act has wrongly been applied for ejecting the petitioners. According to the learned counsel, the facts and circumstances of the case would confirm that the original raiyati tenant had voluntarily surrendered the raiyati land in favour of the ex-landlord and after more than 10 years of surrender, the chapparbandi settlement of the land was made by the ex-landlord in favour of the father of the vendor of the petitioners. 10. Assailing the impugned order of the Deputy Commissioner passed in the appeal preferred by the petitioners, learned counsel submits that the appeal was dismissed on the basis of error of record in as much as, the Deputy Commissioner had wrongly treated a gap of 40 days only in between the date of surrender and the date of chapparbandi settlement, whereas the gap was of more than 10 years. Learned counsel adds further that the concerned authorities have also erred in failing to consider that the land, which was settled as chapparbandi lands, could not be amenable to the provisions of Section 71A of the C.N.T. Act. Furthermore, the very initiation of proceeding for restoration of the lands, was not maintainable since it was initiated after a gap of 47 years after the date when the petitioners' vendors came into possession of the land. 11. Counsel for the State, on the other hand, while submitting arguments in support of the impugned orders, would want to controvert the grounds raised by the petitioners on the basis of the following objections:- (i) The document of purported surrender of the disputed land claimed to have been made by the original tenant in favour of the ex-landlord is an unregistered document and, therefore, the same cannot be relied upon. (ii) In absence of any reliable evidence to confirm that the vendors of the petitioners, had acquired raiyati interest and possession over the lands, the petitioners who have been found in occupation over the lands admittedly, since 1988, are liable to be ejected from the lands under the provisions of Section 68 of the Chhotanagpur Tenancy Act. 12. Having heard counsel for the parties and having gone through the materials on record, including the impugned orders of the concerned authorities, the following salient features of the petitioners' case do emerge:- (i) The specific claim of the petitioners is that the original raiyati tenants had surrendered the disputed land in favour of the ex-landlord in 1938. (ii) The ex-landlord, by executing a Sada Hukumnama, made a chapparbandi settlement of the land in favour of the, ancestor of the vendors of the petitioners. (iii) After the settlement so made, the ex-landlord granted rent receipts to the settlee and subsequently, upon vesting of the land in the State of Jharkhand, and upon extinguishing of the intermediaries, the ex-landlord had submitted returns declaring the ancestor of the vendors of the present petitioners as a settled raiyat in respect of the land in question. (iv) Subsequently, the State Government had also recognized the raiyati interest of the settlee and had issued rent receipts to him. (v) In the S.A.R. proceeding before the Special Officer, the petitioners had adduced evidences both oral and documentary, including the Sad a Hukumnama and rent receipts purportedly issued in favour of the original settlee. (iv) Subsequently, the State Government had also recognized the raiyati interest of the settlee and had issued rent receipts to him. (v) In the S.A.R. proceeding before the Special Officer, the petitioners had adduced evidences both oral and documentary, including the Sad a Hukumnama and rent receipts purportedly issued in favour of the original settlee. (vi) The successors of the originally raiyati tenant namely, the Respondent Nos. 7 to 11, had though been noticed to participate in the S.A.R. proceedings, but had never appeared nor offered any contest to the claim of the petitioners nor disputed the validity of the documents adduced and relied upon by the petitioners in support of their claim of right over the land. (vii) The Special Officer had rejected the claim of the petitioners only on the ground that the documents relied upon by the petitioners were unregistered documents. 13. Thus, the claim of the petitioners over the land is based on two alternative pleas. The first being on the basis of the documents namely, the Sada Hukumnama and the purported deed of chapparbandi settlement and the rent receipts. The alternative plea is that the ancestor of the vendors of the petitioners had come in actual possession of the lands on the date of settlement made by the ex-landlord way back in 1949 and had perfected his right, title and interest over the land, since after the date of settlement made in his favour. Thus, the claim of the petitioners is based on actual possession coupled with the rent acceptance by the exlandlord. 14. From perusal of the impugned order of the Special Officer, it appears that no finding has been recorded over the petitioners claim based on actual possession of the lands. The Special Officer has rejected the claim only on the ground that the documents adduced by the petitioners being unregistered documents, the same are inadmissible in evidence, al- though the petitioners had pleaded that on the date when the originally recorded tenants, namely, Somra Oraon and Murla Oraon, had voluntarily surrendered the land unto the ex-landlord, i.e. on 3.12.1938, the prevailing customs did not necessitate such documents to be registered under Section 17 of the Registration Act. 15. 15. From the perusal of the impugned order of the Deputy Commissioner, it appears that the claim of surrender of the land by the originally recorded tenants made in favour of the ex-landlord and the claim of settlement of the land in favour of the originally settlee-Sheikh Karamat, has been rejected, on the ground that there was a gap of only 40 days in between the date of surrender and the date of chapparbandi settlement, raising thereby a suspicion regarding the genuineness of the transaction. Such finding appears to be an error of record, in view of the fact that the date of surrender was claimed to be of the year 1938, and the settlement claimed to have been made in favour of Sheikh Karamat, is of the year 1949. On reading the impugned orders, it appears that both the officers have ignored the need to record a finding regarding the claim of the petitioners, made on the basis of actual possession of the lands, ever since the date of chapparbandi settlement claimed to have been made by ex-landlord in favour of Sheikh Karamat. 16. It is a settled principle under the tenancy laws that a valid agricultural lease may be created by registered lease instrument, and if such a registered document is created, delivery of possession is not necessary to prove the title of the lessee. If, however, the lease is not registered, and is therefore, inadmissible as evidence of title, it will always be open to the tenant concerned to show that he has obtained raiyati interest on the strength of actual possession and acceptance of rent by the landlord. It is also a settled principle of law that provision of Section 91 of the Evidence Act only excludes other evidence of terms of a document, but not of existence of contract or relationship of landlord and tenant brought about by possession and payment of rent. The Bihar Tenancy Act does not create a bar to the proprietor conferring right of the tenant for executing the document. However, such document would no doubt require registration under Section 17(1)(b) of the Registration Act, if it creates lease for a term exceeding one year or reserving a yearly rent and, if it is not registered, it cannot be used as evidence of title in view of Section 49 of the Registration Act. However, such document would no doubt require registration under Section 17(1)(b) of the Registration Act, if it creates lease for a term exceeding one year or reserving a yearly rent and, if it is not registered, it cannot be used as evidence of title in view of Section 49 of the Registration Act. However, even as per proviso to Section 49 of the Act, the unregistered document can be used for collateral purposes. For the purposes of ascertaining the unregistered document, though no evidence of title, can be looked into, for collateral purposes. This view finds support from several judgments of the Patna High Court, including the judgment in the case of Deo Saran Sahu vs. Ram Das Sahu, 1967 BLJR 574, and an earlier judgment in the case of Bhagwat Ram vs. Chhedilal, 1955 BLJR 24. On the basis of the aforesaid principle, the Patna High Court has, in several decisions, held that, if a person claims to have obtained raiyati interest on an unregistered document and further asserts that he came into actual possession on the same and has continued in such possession and that his payment of rent has been accepted by the landlord, his title to raiyati interest must be recognized, even though the unregistered lease is inadmissible as evidence of title. 17. In the case of Most. Ugni & Anr. (supra), the Full Bench of the Patna High Court has, while considering the value of unregistered Hukumnama, has observed as follows:- "The unregistered Hukumnama though admissible could be looked into to show the nature and character of possession. The oral evidence of terms of lease is not admissible, but independent of the Hukumnama, rent receipts themselves would indicate the rate of rent, the area and the nature of the right of the lessee." 18. In the same judgment, the Court had further observed as follows:- "It is true that a valid agricultural lease may be created by a registered instrument and if such a registered document is created, the delivery of possession is not necessary to prove title of the lessee. If, however, the lease is not registered, and is, therefore, inadmissible as evidence of title, it will be open to the tenant concerned to show that he obtained raiyati interest on the strength of actual possession and acceptance of rent by the landlord. If, however, the lease is not registered, and is, therefore, inadmissible as evidence of title, it will be open to the tenant concerned to show that he obtained raiyati interest on the strength of actual possession and acceptance of rent by the landlord. There is also no legal bar to a person claiming raiyati interest on two alternative pleas. He may claim such a right on the basis of a written document of lease. If, however, such claim fails on the ground that the document, being compulsorily registrable, was not registered, nevertheless his alternative claim based on actual possession, coupled with acceptance of rent by the landlord, may succeed." 19. As pointed out above, the petitioners have advanced their claim on the alternative pleas based both on the documents claimed and also on the basis of actual possession. It was, therefore, obligatory on the part of the Special Officer to record a definite finding on the petitioners claim of actual possession over the land ever since the purported date of chapparbandi settlement in 1949. 20. In the light of the facts and circumstances and the discussions made above, I find merit in this application. Accordingly, this application is allowed. The impugned order of the Special Officer passed in S.A.R. Case No. 129 of 1986-87 and the impugned order of Revisional Authority whereby, the impugned order of the Special Officer has been sustained, are hereby set aside. The matter is remitted back to the Special Officer to reconsider the issues raised by the petitioners and record his findings afresh. Till the matter is finally decided by the Special Officer, the possession of the petitioners over the disputed land, shall not be disturbed.